Kelley v. State

¶1concurring specially and in judgment only. I concur in the judgment only. Although I agree with the outcome of this case, I do not believe that the majority needs to reach the issue of whether the search of Kelley’s pockets exceeded the scope of the pat-down search because the pat-down search was not constitutionally permissible under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). See Molina v. State, 304 Ga. App. 93, 95 (695 SE2d 656) (2010) (holding that “an initial frisk must be ‘supported by a reasonable belief that [the defendant] was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a pat-down of a person for weapons.’ ”) (Citation omitted.). Here, the officer unequivocally testified that he did not intend to arrest Kelley when he asked Kelley to exit the vehicle and that he had no reason to believe that Kelley was armed at that time. Accordingly, the trial court erred in denying Kelley’s motion to suppress.