State v. Medders
State v. Medders
Opinion of the Court
The state appeals from the grant of the defendant’s motion to suppress evidence seized at the time of his arrest. Held:
Officer Cox of the Atlanta Police Department observed the defendant and another person leave the back of a restaurant, light up a cigarette and then "they started passing it back and forth between” them. The officer detected the odor of burning marijuana. He moved closer and confirmed his opinion that the odor was that of marijuana. At that point the defendant and his companion saw the officer and the defendant "crunched [the cigarette] with his fingers.” The officer took the cigarette out of defendant’s hand. It was a marijuana cigarette and the defendant was placed under arrest. A
The defendant argues that there was insufficient "probable cause to arrest for a crime committed in [the officer’s] presence.” We do not agree. Although there is some controversy as to whether or not the odor of burning marijuana by itself supplies sufficient probable cause for a search or an arrest (See Brewer v. State, 129 Ga. App. 118, 120 (199 SE2d 109); Cunningham v. State, 131 Ga. App. 133, 136 (205 SE2d 899) (concurring opinion) (revd. on other grounds 232 Ga. 416); Rogers v. State, 131 Ga. App. 136, 139 (205 SE2d 901); Cunningham v. State, 133 Ga. App. 305, 310 (211 SE2d 150); Yawn v. State, 134 Ga. App. 77 (4) (213 SE2d 178)), all opinions of this court are in agreement that "it may be considered and may be a part of a totality of circumstances sufficient to validate one.” Yawn v. State, 134 Ga. App. 77 (4), supra.
In the instant case, a trained law enforcement officer seeing two individuals passing one cigarette back and forth between them (Culpepper v. State, 132 Ga. App. 733 (1) (209 SE2d 18)), recognizing the distinctive odor of burning marijuana (Rogers v. State, 131 Ga. App. 136, 139, supra), and seeing the unusual and obvious concealment movement of crushing the cigarette and placing it in his hand (See Dickson v. State, 124 Ga. App. 406 (184 SE2d 37); Rogers v. State, 131 Ga. App. 136, 139, supra; Culpepper v. State, 132 Ga. App. 733 (1), supra), provided a totality of circumstances which established probable cause to search. Yawn v. State, 134 Ga. App. 77 (4), supra. The subsequent finding of the marijuana cigarette in the hand of the defendant was sufficient cause for his arrest. The following search of his person was permissible as being made in conjunction with the lawful arrest. United States v. Robinson, 414 U. S. 218, 224 (94 SC 467, 38 LE2d 427).
"[W]here there is a conflict in the evidence on the motion to suppress, the ruling of the trial court will be upheld where there is evidence to authorize a finding in support of his order.” (Emphasis supplied.) State v. Swift, 232 Ga. 535 (2) (207 SE2d 459); Woodruff v. State, 233 Ga. 840 (3) (213 SE2d 689); Parks v. State, 150 Ga. App. 446, 448 (2) (258 SE2d 66). The Georgia Supreme Court cites Lego v. Twomey, 404 U. S. 477 (92 SC 619, 30 LE2d 618), as the
Judgment reversed.
Dissenting Opinion
dissenting.
I would affirm the trial court’s order granting Medders’ motion to suppress.
It is well established that, on a motion to suppress, the trial judge, as a finder of fact, is authorized to resolve any conflicts in the testimony, evaluate the demeanor of the witnesses, and take into consideration the totality of the circumstances surrounding the search and seizure in arriving at his finding. Hatcher v. State, 141 Ga. App. 756 (234 SE2d 388) (1977); Brooks v. State, 129 Ga. App. 393 (199 SE2d 578) (1973); Kelly v. State, 129 Ga. App. 131 (198 SE2d 910) (1973). In contrast, the appellate courts must make their determination on the basis of the record.
The record in this case supports the trial court’s determination that appellant was arrested on a mere "hunch.” The arresting officer "waffled” in his testimony. At one point, he said he smelled marijuana. At another, he stated he smelled what he thought was marijuana. Finally, he stated he did not know that the substance seized from appellant was marijuana until he received the crime lab report.
After hearing the evidence and evaluating the witnesses, the trial court rejected the state’s "downwind” theory of probable cause. See State v. Smith, 137 Ga. App. 101 (223 SE2d 30) (1975). "In the absence of evidence of record demanding a finding contrary to the judge’s determination, this court will not reverse the ruling sustaining a motion to suppress.” State v. Smith, 134 Ga. App. 602 (215 SE2d 345) (1975). The evidence of record in the case at bar does not demand a finding contrary to the
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