¶1NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
¶2In the Supreme Court of Georgia
¶3 Decided: July 5, 2023
¶4 S22G1050. MIDDLETON v. THE STATE.
¶5 BOGGS, Chief Justice.
¶6 Patrick Middleton filed a motion to suppress evidence obtained
¶7during a search by Officer Amanda Graw of the Kingsland Police
¶8Department (“KPD”), arguing that she did not have authority to stop
¶9or search him because she was outside the territorial jurisdiction of
¶10the KPD. Officer Graw claimed that she did have authority to
¶11perform the stop and search because she had been deputized by the
¶12Camden County Sheriff’s Office (“CCSO”) seven years earlier. After
¶13the trial court granted the motion to suppress, the State appealed.
¶14The Court of Appeals reversed, concluding that Officer Graw had
¶15presented sufficient evidence of her deputization. See State v.
¶16Middleton, 363 Ga. App. 851 (872 SE2d 920) (2022) (“Middleton I”).
¶17We granted Middleton’s petition for certiorari to consider whether
¶18 1 the trial court erred in its ruling. We vacate the Court of Appeals’
¶19opinion with direction that it vacate the trial court’s order and
¶20remand the case to the trial court with direction to clarify its basis
¶21for ruling that the search and seizure of Middleton was unlawful. 1
¶22 1. On February 15, 2020, KPD Officer Graw stopped
¶23Middleton’s vehicle while outside Kingsland city limits in Camden
¶24County. After smelling the odor of marijuana, Officer Graw
¶25conducted a search of Middleton’s vehicle, found a controlled
¶26substance, and arrested him. Prior to trial, Middleton asked the trial
¶27court to suppress evidence obtained during the search because
¶28Officer Graw, as a KPD officer, did not have authority to make a
¶29traffic stop outside Kingsland city limits. At a motion-to-suppress
¶30hearing, Officer Graw testified that she was employed by both the
¶31KPD and CCSO by virtue of having “been deputized by the Camden
¶32County Sheriff’s Office since 2013” while riding along with CCSO
¶33deputies. She also testified that she had never worked a paid shift
¶34 1 We thank the Attorney General of Georgia, the Georgia Association of Criminal Defense Lawyers, and the Prosecuting Attorneys’ Council of Georgia for their briefs amicus curiae. 2 as a CCSO deputy or received a paycheck from the CCSO.
¶35 The trial court granted Middleton’s motion to suppress under
¶36OCGA § 40-13-30, which provides that a municipality’s law
¶37enforcement officers lack arrest powers outside of the municipality’s
¶38city limits. 2 In its written order, the trial court concluded that
¶39“without a showing that extra-territorial jurisdiction was conferred
¶40upon Officer Graw by local or other law, Middleton’s search and
¶41seizure were unlawful.” In a footnote, the trial court stated that it
¶42was “not persuaded that Officer Graw’s 2013 deputization by the
¶43Camden County Sheriff to act as an agent of the CCSO as part of
¶44her riding with CCSO deputies at the time changes its analysis,
¶45especially where the State has failed to introduce evidence as to the
¶46 2 OCGA § 40-13-30 provides:
¶47 Officers of the Georgia State Patrol and any other officer of this state or of any county or municipality thereof having authority to arrest for a criminal offense of the grade of misdemeanor shall have authority to prefer charges and bring offenders to trial under this article, provided that officers of an incorporated municipality shall have no power to make arrests beyond the corporate limits of such municipality unless such jurisdiction is given by local or other law.
¶48 3 scope and/or content of said deputization.”
¶49 The State appealed, and the Court of Appeals reversed,
¶50concluding that Officer Graw’s testimony that she was deputized in
¶512013 was sufficient to prove that she was acting within her
¶52jurisdiction as a deputy sheriff at the time of the arrest. Middleton
¶53I, 363 Ga. App. at 854-855. Middleton subsequently petitioned for
¶54certiorari, which this Court granted to review the question of
¶55whether the trial court erred in granting Middleton’s motion to
¶56suppress evidence on the basis that Officer Graw was not engaged
¶57in the lawful discharge of her official duties at the time of the search
¶58and subsequent arrest.
¶59 2. We start with the scope of a deputy sheriff’s official duties.
¶60“Sheriffs are authorized in their discretion to appoint one or more
¶61deputies.” OCGA § 15-16-23. Deputy sheriffs in many ways stand in
¶62the same shoes as the sheriff. They are usually presumed to have
¶63the same powers as the sheriff. See Jones v. Rountree, 96 Ga. 230,
¶64231 (23 SE 311) (1895) (“It is difficult to conceive why deputy-
¶65sheriffs should be appointed at all, if they are not at least competent
¶66 4 to perform such duties pertaining to the sheriff’s office as serving
¶67papers and making entries of such service.”); Veit v. State, 182 Ga.
¶68App. 753, 756 (357 SE2d 113) (1987) (“A deputy sheriff is an agent
¶69of the sheriff and in effecting the proper discharge of his duties is
¶70empowered with the same duties and powers.”). Likewise, deputy
¶71sheriffs are required by statute to take the same oath that sheriffs
¶72do. See OCGA § 45-3-7 (“Before proceeding to act, all deputies shall
¶73take the same oaths as their principals take . . . .”). However,
¶74sometimes deputies are sworn in for a more limited role, such as to
¶75work on a particular case or cases. See OCGA § 45-3-7 (exempting
¶76deputies “employed in particular cases only” from having to file and
¶77enter the record of their oath with their principal’s office).
¶78 Generally, “a public officer is presumed, until the contrary
¶79appears, to have properly performed his official duties and not to
¶80have exceeded his authority.” Fine v. Dade County, 198 Ga. 655, 663
¶81(32 SE2d 246) (1944). At a minimum, that presumption may be
¶82overcome if the party challenging the public officer’s action
¶83persuades the court that the person being held out as a purported
¶84 5 deputy does not in fact hold that position at the time of arrest. See
¶85id. Here, there is no dispute that Officer Graw was deputized in 2013
¶86by the Camden County Sheriff; what is disputed is whether she was
¶87still deputized when she arrested Middleton in 2020. The key
¶88question is thus one of scope: Was Officer Graw deputized for
¶89particular cases only, see OCGA § 45-3-7, or was the deputization
¶90general in nature? If the deputization was not restricted in scope,
¶91this case would present difficult questions about the duration and
¶92legal effect of that 2013 deputization, but those questions do not
¶93arise if in fact Officer Graw was deputized for particular cases only.
¶94 This initial question of scope is a question of fact. However, the
¶95trial court’s order is ambiguous regarding whether it made a factual
¶96finding when it took note of “Officer Graw’s 2013 deputization by the
¶97Camden County Sheriff to act as an agent of the CCSO as part of
¶98her riding with CCSO deputies at the time.” It is not clear to us
¶99whether this statement rests on a factual finding that Officer Graw
¶100was deputized only for cases that arose as she was “riding with
¶101CCSO deputies,” particularly in light of the trial court’s later
¶102 6 statement that “the State has failed to introduce evidence as to the
¶103scope and/or content of said deputization.” If the trial court’s order
¶104did depend on a factual finding as to the scope of Officer Graw’s
¶105deputization, that finding would be entitled to deference;
¶106alternatively, if the trial court’s ruling was based on the duration
¶107and legal effect of a general deputization, it would be subject to de
¶108novo review. See Nelson v. State, 312 Ga. 375, 377 (863 SE2d 61)
¶109(2021) (“In reviewing a trial court’s ruling on a defendant’s motion
¶110to suppress evidence, the trial court’s decision with regard to
¶111questions of fact and credibility must be accepted unless clearly
¶112erroneous; . . . [t]he trial court’s legal conclusions are reviewed de
¶113novo, however.”).
¶114 In light of this unresolved and threshold factual question, we
¶115vacate the Court of Appeals’ opinion with direction that it vacate the
¶116trial court’s order and remand the case to the trial court with
¶117direction that the trial court clarify whether its ruling that Officer
¶118Graw did not have legal authority to stop and search Middleton was
¶119based on the factual finding that Officer Graw had been deputized
¶120 7 for particular cases only.3
¶121 Judgment vacated and case remanded with direction. All the Justices concur.
¶122 3 Although amici in their briefs suggest in the alternative that the trial court erred because suppression is not an appropriate remedy for extraterritorial arrest, the State conceded at oral argument that this issue was never raised in proceedings below. Thus, we need not address it here. See Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (573 SE2d 389) (2002) (“[A]bsent special circumstances, an appellate court need not consider arguments raised for the first time on appeal.”). See also Harrell v. State, 297 Ga. 884, 886 n.2 (778 SE2d 196) (2015) (“[T]he State did not raise any such issue below, before or after the trial court’s ruling on the subject, [so] its ability to [rely on that argument] on appeal has been waived.”). 8