Cole v. State

¶1dissenting.

¶2Because the consent to search obtained by Officer Smith was not voluntary, I must respectfully dissent.

¶31. After Officer Smith determined that Cole’s failure to maintain a lane was not the result of being under the influence of marijuana, Smith decided to ask for consent to search Cole’s car because he thought there might be marijuana there. Cole refused consent. It was then Officer Smith testified:

A: I wanted to inspect his vehicle and he stated no the first time. So at that point I have nothing to hold him on, he’s free to go. . . .

*427Q: If when he said no to the consent and he had tried to leave, would he have been free to leave?

A: Yes, sir.

Q: Did you think you had anything to hold him on at that point?

A: No, sir.

¶4(Emphasis supplied.) Smith did not tell Cole this, but instead asked again for consent to search. And it was during this second request — after Officer Smith had already determined that Cole was free to go — Smith testified that he might have threatened to get a drug dog if Cole did not consent to a search. Smith, in an admirably candid fashion, admitted that he had used such threat before with other detainees and possibly had used it in this instance:

Q: And then as far as asking him whether or not if he didn’t consent, you’d go get a drug dog, you said that you’ve actually made that particular statement to people before?

A: Yes, sir.

Q: And you said that you didn’t recall whether or not you made that statement to Mr. Cole?

A: No, sir.

Q: Okay. So you could have made that statement to him, is that what you’re telling the Court?

A: It’s possible, yes, sir.

¶5The State has the burden to prove consent was freely and voluntarily given, and consent to search “must be the product of an essentially free and unrestrained choice by its maker.”1 Cole did not have the burden to present “affirmative evidence” that the drug dog statement was in fact made. The State had the burden to present evidence that such statement was not made. Moreover, the majority’s assertion that “the State could simply argue that the statement was not made” is patently insufficient. It is a tenet of the law that a prosecutor’s argument is not evidence, and, in this case, there was no factual basis upon which the prosecutor could argue that the drug dog statement was not made, since Officer Smith plainly testified that “It’s possible, yes, sir” he made such statement. The majority’s holding presents a new and interesting development in the law when the State is permitted to meet an affirmative constitutional burden by proving only that an officer “cannot recall” if he said or did something he should not have done and, further, testifies it is possible he did it.

¶6*428Since the only evidence before the trial court — and before this Court — is that Officer Smith made drug dog statements in the past, and “[¡]?8 possible, yes, sir,” he made such statement here, the prosecution cannot as a matter of fact or law (or common sense) meet its burden to show that “Officer Smith made no statement about getting a drug dog,” as was concluded by the trial court and adopted by the majority. The finding that Officer Smith did not threaten Cole with a drug dog is clearly erroneous.2

¶72. Equally interesting for the future of Terry stop/detention cases is the majority’s conclusion that “reasonable articulable suspicion” can be imputed to an officer who specifically testifies that “I have nothing to hold him on, he’s free to go,” but continues to detain the suspect in order to obtain a consent to search.3 I believe this is the first time in Georgia an appellate court has found that an officer who did not have a reasonable articulable suspicion should have had it and has supplied it for him. The propriety of the majority’s imputation is based on a reviewing court’s ability to find “probable cause” where an officer is unsure whether such exists.4

¶8In my view, however, “probable cause,” is an objective determination — by an officer or otherwise — based on objective factors; while “reasonable articulable suspicion” is a subjective determination by an officer in the field based on objective circumstances on the scene. As such, if objective circumstances in the field do not create in an officer a reasonable suspicion of wrongdoing, we cannot give it to him after the fact.5

¶9But pretermitting this and given that a majority of this Court wishes to be able to impute “reasonable articulable suspicion” to an officer who does not have it, I find this case an especially diverting vehicle for the majority’s holding because of the strong, strong evidence that Officer Smith was absolutely correct when he determined *429that the odor of marijuana present on the scene was insufficient to support a further detention of Cole:

A: Upon making contact with the driver, Mr. Cole, I smelled a slight odor of marijuana come [sic] from the car. ... It didn’t have the fresh sort of like —.

Q: It didn’t smell like it was burning right then?

A: No, sir, but it was like it was like the smoke was in the car, it had been smoked a lot in the car.

Q: When he rolled down the window, like a big cloud of smoke didn’t come billowing out?

A: No, sir. . . . It’s the smoke that’s embedded into the vehicle, and it’s kind of hard to tell if it’s recently been smoked or it’s old. . . .

Q: Now, you stated that prior to you beginning this search, that this embedded smoke or whatever you want to call it was a — I believe you used the words a slight odor?

A: From standing at the driver’s side door with my head two to three feet above the car. . . .

Q: [M]y question is, Mr. Cole may not have been smoking at all; some other people may have been smoking days earlier. Is that a possibility based on the slight odor?

A: It is possible.

Q: Am I correct in assuming since I didn’t hear it on direct, that you did not smell any marijuana coming from his person, did you?

A: It’s not in the report. . . .

Q: Well, that would be something you would put in your report had it happened. . . . You’d put it in the report?

A: Yes, sir.

¶10In addition, Officer Smith’s investigation into whether Cole might be driving under the influence of drugs showed that, “Once he stepped out of the vehicle and talked to me, he was steady on his feet, and other than the bloodshot eyes, he seemed to be fairly okay.”

¶11In State v. Folk,6we determined that the odor of burning marijuana alone was sufficient to justify an officer’s warrantless search of a vehicle. In Patman v. State7we distinguished between the odor of burning marijuana which “suggests that marijuana is still present,” and the smell of marijuana smoke which “merely suggests that marijuana was present in the past.” Such distinction was predicated on the fact that the standard necessary for a detention is a reasonable *430articulable suspicion that a suspect “either currently or would soon be engaged in an unlawful activity.”8

¶12Here, Officer Smith, present on the scene, determined from the surrounding circumstances — including the marijuana smell — that he had “nothing further to hold Cole on.” And the above evidence certainly supports this conclusion, since the odor of marijuana was only “slight”; did not appear to be fresh; and Cole, himself, neither smelled of marijuana nor acted as if he were under the influence.

¶13However, on the basis of the evidence as noted above, we give the boot to Officer Smith’s determination that Cole was free to go. The majority finds, instead, that the marijuana odor on the scene — an odor that this Court obviously did not experience — was of such consequence and immediacy that it should have created a “reasonable articulable suspicion” in Officer Smith that Cole was engaged in wrongdoing — even though it did not. Respectfully, I cannot give credence to this exercise of clairvoyant powers.

¶14Because the facts in this case do not support a reasonable suspicion of current wrongdoing based on the odor of marijuana and plainly support Officer Smith’s determination to the contrary, this Court cannot impute such reasonable suspicion to Officer Smith — even if it wanted to.

¶15I am authorized to state that Judge Miller and Judge Phipps join in this dissent.