Georgia appeals court limits “pat-down” searches and “safety frisks”

The Court of Appeals recently reaffirmed the long standing rule that an officer who conducts a traffic stop must have a particularized suspicion that an occupant of the vehicle poses a safety threat before the occupant can be patted-down. The Court went on to hold that this rule holds true even if the officer intends to search the vehicle.

In Molina v. State, a Gwinnett County case, an officer conducted a traffic stop of a pickup truck after noticing a broken tail light. Upon being asked by the officer, the driver consented to a search of the truck. The driver and the passenger, Molina, were then asked to step out of the truck. A backup officer conducted a “Terry pat-down” of Molina to search for weapons. During the pat-down, the officer felt “a large brick-like substance or material or object in his front waistband.” Unsure as to whether the brick was a weapon or drugs, the officer pulled the brick out and discovered that it was a kilo of cocaine. Molina was then charged for trafficking in cocaine.

At the suppression hearing, the officer testified on direct that prior to the pat-down Molina was breathing heavily and that the artery in his neck was pounding rapidly. The officer also stated: “Other than that. . . [he] was pretty normal.” On cross, the officer stated that he patted-down Molina immediately after he exited the truck. The officer also stated, “Every time we have a consent to search and we get someone out of a vehicle, I always pat them down for weapons.” The officer explained: “While I’m going to be tucked inside somebody’s car I want to know if while they’re standing out there they’re armed.” Molina lost the suppression hearing, and following a bench trial, he was sentenced to the minimum 25 years in prison and a $1 million fine.

On appeal, the Court of Appeals reasoned that, “If the officer has a particularized basis for his suspicion the defendant might be armed or dangerous, he may frisk a suspect.” Quoting Terry v. Ohio, the Court went on to state that, “the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” The Court determined that the officer only observed signs of nervousness, and that under Georgia law, nervousness is insufficient to establish reasonable suspicion.

The State argued that searching a vehicle while the occupant waits outside is enough of a risk to warrant a pat-down. The Court disagreed: “It is not sufficient to say the situation itself poses a danger to the officer and therefore he is justified in frisking a vehicle’s occupant. As many courts have observed, traffic stops are inherently risky. . . but a pat-down must still be based on information specific to the person frisked and not to some general policy.” As a result, the Court of Appeals reversed the trial court’s denial of the motion to suppress.

Molina was represented on appeal by John H. Petrey of the Decatur law firm Clegg, Daniels & Petrey, LLC.

Our lawyers have won numerous cases involving clients who were charged with serious drug offenses after being searched by police. In our experience, there is almost always a question as to whether a search was lawfully conducted any time police find drugs on a person or in a vehicle.

In order to show that a search was illegal, a good criminal defense attorney will conduct a thorough investigation which includes reviewing all police audio and video recordings, obtaining any police and witness statements, and examining any technology that was used such as lasers, dog sniffs or wiretaps. When a search is shown to be illegal, the court must generally suppress any drugs found during the search, and any items later found as a result of the search.

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