The State v. Alford.

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and REESE, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

August 24, 2018

In the Court of Appeals of Georgia
A18A0939. THE STATE v. ALFORD.

BARNES, Presiding Judge.

After arresting Tramain Rashade Alford, a police officer searched a backpack

found on the floorboard of the vehicle in which Alford was a passenger and

discovered illegal drugs. Alford was charged with possession of cocaine and

possession of less than one ounce of marijuana, and he filed a motion to suppress all

evidence recovered during the search. Alford contended, among other things, that the

arresting officer did not have probable cause to detain him and that all evidence

seized as a result of his unlawful detention should be excluded from evidence at trial.

Following a hearing, the trial court granted the motion to suppress. The trial court

pointed out that the officer testified that he arrested Alford for violating an open

container ordinance, but the State failed to produce a certified copy of the ordinance
at the hearing. Consequently, the trial court ruled that the ordinance could not serve

as a basis for justifying Alford’s arrest and the subsequent search. The State now

appeals, contending that the trial court erred in granting Alford’s motion to suppress.

For the reasons discussed below, we vacate the judgment and remand with direction.

On review of a motion to suppress, we apply these principles:
First, the trial judge’s findings based upon conflicting evidence are
analogous to the verdict of a jury and should not be disturbed by a
reviewing court if there is any evidence to support them. Second, the
trial court’s decision with regard to questions of fact and credibility
must be accepted unless clearly erroneous. Third, the reviewing court
must construe the evidence most favorably to the upholding of the trial
court’s findings and judgment. Fourth, we review questions of law de
novo.

(Citations and punctuation omitted.) Reyes v. State, 334 Ga. App. 552, 552 (1) (780

SE2d 674) (2015). See Miller v. State, 288 Ga. 286, 286-288 (1) (702 SE2d 888)

(2010). Guided by these principles, we turn to the transcript of the hearing on

Alford’s motion to suppress.

The transcript reflects that on the morning of June 26, 2014, two patrol officers

with the Warner Robins Police Department were dispatched to a neighborhood where

a city code enforcement officer had observed two men drinking alcohol in a vehicle

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parked in the road. According to one of the officers, when he approached the open

driver’s side window of the parked vehicle, he smelled alcohol and burnt marijuana.

The other officer testified that when he approached the open front passenger window,

he saw two open beers and smelled burnt marijuana. Upon seeing the open beers, the

officer on the passenger side asked who was drinking alcohol inside the vehicle, and

Alford, who was in the front passenger seat, admitted that he had been drinking the

beer next to him. At that point, the officer arrested Alford for violating the city’s open

container ordinance. Both officers testified that they then searched the vehicle

because of the odor of marijuana coming from it.

During the search of the vehicle, the arresting officer found a backpack on the

front passenger floorboard where Alford had rested his feet. The arresting officer

asked Alford whether the backpack belonged to him. Alford answered in the

affirmative and further responded that the cocaine and marijuana inside the backpack

were his as well. The arresting officer opened the backpack and discovered a plastic

bag of marijuana, a plastic bag of cocaine, and a small digital scale. The officers also

found a “bunch of ash in the car,” but no “burnt roaches, blunts or anything like that.”

Based on the drugs found during the search of the backpack, Alford was

charged with possession of cocaine and possession of less than an ounce of

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marijuana. He filed a motion to suppress all evidence seized during the search,

contending, among other things, that the arresting officer did not have probable cause

that he had committed an ordinance violation or other offense and that, as a result, the

evidence subsequently seized by the officer was inadmissible at trial. The trial court

thereafter conducted a hearing where the two patrol officers testified to events as set

out above. After the State presented the officers’ testimony and rested, Alford argued,

among other things, that because the State had failed to tender a certified copy of the

open container ordinance, the ordinance could not serve as the basis for his arrest and

the subsequent search of the backpack. The State did not seek to reopen the evidence

to tender a certified copy of the ordinance, but instead argued that Alford’s arrest and

the search nevertheless were justified because the officers had smelled marijuana.

The trial court granted Alford’s motion to suppress. The court explained why

it was excluding the drugs seized from the backpack: “According to the arresting

officer, the basis for the arrest was a violation of the open container ordinance;

however, at the hearing the State failed to produce a certified copy of that ordinance.

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Therefore, the ordinance may not serve as a basis for upholding the arrrest and

subsequent search.”1 This appeal by the State followed.

1. The State first contends that Alford, as a passenger in the vehicle, lacked

standing under the Fourth Amendment to challenge the search of the vehicle where

his backpack was found, and that his motion to suppress should have been denied on

that basis. We disagree.

“[R]ights under the Fourth Amendment are personal, and in order to challenge

the validity of a government search an individual must actually enjoy the reasonable

expectation of privacy, that is, the individual must have standing. Thus,

demonstrating standing is a threshold burden for suppression of the evidence.”

(Citations omitted.) Hampton v. State, 295 Ga. 665, 669 (2) (763 SE2d 467) (2014).

Alford met that burden with respect to the backpack that was searched by the officers.

Irrespective of whether Alford had a privacy interest in the vehicle in which he

was a passenger, he had a reasonable expectation of privacy in the searched backpack,

1
The trial court also suppressed Alford’s statements to the officer after his
arrest that the backpack and drugs inside it belonged to him because Alford had not
been advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16
LE2d 694) (1966). The State does not appeal the trial court’s suppression of Alford’s
post-arrest statements.

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given that it was found on the passenger side floorboard and Alford told the officer

that it belonged to him. As we have explained:

It is apparent beyond doubt that society is prepared to accept as
reasonable that both vehicle owners and their authorized passengers may
carry bags and parcels with them into the automobile; it is further our
view that society is prepared to recognize a right of privacy in the
contents of those closed packages and bags, which legitimate passengers
and vehicle owners carry with them into the vehicle at least to the extent
of vesting the passenger or owner with lawful authority to assert a
violation of Fourth Amendment rights due to an illegal search or seizure
of those objects.

(Citation and punctuation omitted.) Bowen v. State, 210 Ga. App. 348, 349 (1) (436

SE2d 76) (1993). Accordingly, Alford had standing to challenge the validity of the

search of the backpack. See State v. Hall, 229 Ga. App. 194, 197 (2) (b) (493 SE2d

718) (1997) (passenger had standing to challenge search of bag containing his

clothing that was seized from car trunk); Bowen, 210 Ga. App. at 349 (1) (passenger

had standing to challenge search of her purse found in car); State v. Corley, 201 Ga.

App. 320, 322-323 (411 SE2d 324) (1991) (physical precedent only) (passenger had

standing to challenge search of closed drawstring bag found within his arm reach in

car, where passenger claimed ownership of the bag and the contraband in it).

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Compare Keishian v. State, 202 Ga. App. 718, 719-720 (415 SE2d 324) (1992)

(passenger did not have reasonable expectation of privacy in plastic bags of cocaine

found on floor behind passenger seat, because mere assertion of ownership in seized

contraband insufficient to confer standing).

2. The State next contends that the motion to suppress filed by Alford did not

provide sufficient notice to the State that he would challenge the State’s failure to

produce a certified copy of the open container ordinance at the suppression hearing.

Consequently, the State argues that Alford waived such a challenge and that the trial

court thus erred in concluding that the State was required to tender a certified copy

of the open container ordinance to establish the validity of Alford’s arrest based on

that ordinance. Again, we disagree.

“When a defendant files a motion seeking suppression of items allegedly seized

unlawfully, OCGA § 17-5-30 (b) requires the defendant to state in the motion why

the search and seizure were unlawful so as to afford notice of the legal issues which

will be before the trial court.” (Citation and punctuation omitted.) Glenn v. State, 288

Ga. 462, 465 (2) (a) (704 SE2d 794) (2010).2

2
OCGA § 17-5-30 (b) provides:
The motion shall be in writing and state facts showing that the search
and seizure were unlawful. The judge shall receive evidence out of the

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 In cases involving warrantless searches, the factual showing required by
OCGA § 17-5-30 need not be made in great detail, because in such cases
many of the necessary allegations are negative facts (e.g., the search was
conducted without a warrant, the movant did not consent to the search)
and conclusions based upon mixed questions of law and negative fact
(e.g., the officer lacked probable cause to arrest or search). In such
cases, motions to suppress are held sufficient if they put the state on
notice as to the type of search involved (without warrant vs. with
warrant), which witness to bring to the hearing on the motion, and the
legal issues to be resolved at that hearing.

(Citation, punctuation, and footnote omitted.) Dean v. State, 246 Ga. App. 263, 264

(540 SE2d 246) (2000). See Lavelle v. State, 250 Ga. 224, 227 (3) (297 SE2d 234)

(1982).

Here, the State maintains that Alford’s written motion to suppress failed to

provide it with sufficient notice that one of the legal issues at the suppression hearing

would be whether the State had established a lawful arrest through the tender of a

presence of the jury on any issue of fact necessary to determine the
motion; and the burden of proving that the search and seizure were
lawful shall be on the state. If the motion is granted the property shall be
restored, unless otherwise subject to lawful detention, and it shall not be
admissible in evidence against the movant in any trial.

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certified copy of the open container ordinance. But, Alford’s motion to suppress

stated in relevant part:

The Defendant shows that on or about June 26, 2014, he was illegally
detained and charged with the above-stated [drug] offenses in violation
of OCGA § 17-4-20[3] in that the arresting officer did not have probable
cause to believe that the defendant was guilty of any crime, offense, or
ordinance.

And, in its written response to Alford’s motion to suppress, the State challenged the

adequacy of the motion but acknowledged that Alford was claiming that “he was

illegally arrested” and that the “arresting officer did not have probable cause.” Under

these circumstances, the State had notice that Alford was challenging his arrest on

June 26, 2014, and that one of the legal issues at the suppression hearing would be

whether there was probable cause to arrest him for violating an ordinance or other

law.

Where a defendant challenges the legality of his arrest, and the State relies on

an ordinance to justify the arrest, the State must introduce a certified copy of the

3
OCGA § 17-4-20 addresses the circumstances under which an arrest can be
made by a law enforcement officer, including a warrantless arrest where an “offense
is committed in such officer’s presence or within such officer’s immediate
knowledge.” OCGA § 17-4-20 (b) (2) (A).

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ordinance at the suppression hearing. LaRue v. State, 137 Ga. App. 762, 762-763 (1)

(224 SE2d 837) (1976) (whole court). As we have explained, “[w]here such an

ordinance is relied on, it must be pleaded and proved in the trial court, and absent a

properly admitted copy of the ordinance, neither the trial court nor this court may take

judicial notice of its existence.” (Punctuation and footnote omitted.) Lucas v. State,

284 Ga. App. 450, 451 (644 SE2d 302) (2007). And, prosecutors are presumed to

know the law. Billups v. State, 228 Ga. App. 804, 806 (1) (b) (493 SE2d 8) (1997).

See Felton v. State, 93 Ga. App. 48, 49-50 (1) (90 SE2d 607) (1955) (“Everyone is

presumed to know the law, of which the rules of evidence are a part,” and the

presumption apples to “both lawyers and judges.”). Accordingly, given that the State

had notice before the suppression hearing that Alford was challenging the legality of

his arrest, the State was on notice that it had to introduce competent evidence to prove

the legality of that arrest at the hearing, which in this context meant a certified copy

of the open container ordinance.

3. Lastly, the State contends that even if it failed to prove the lawfulness of

Alford’s arrest based on an open container ordinance violation, the officer’s search

of the backpack in the vehicle was not tainted by the unlawful arrest and should not

have been suppressed as fruit of the poisonous tree. In this regard, the State maintains

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that the officers already had probable cause to search the backpack in the vehicle,

pursuant to the automobile exception to the warrant requirement, based on the smell

of marijuana they had detected coming from the vehicle when they approached it,

separate and apart from Alford’s arrest.4

“Under the automobile exception to the warrant requirement imposed by the

Fourth Amendment, a police officer may search a car without warrant if he has

probable cause to believe the car contains contraband, even if there is no exigency

preventing the officer from getting a search warrant.” (Citation and punctuation

omitted.) Shell v. State, 315 Ga. App. 628, 631 (2) (727 SE2d 243) (2012). Applying

this exception, our Supreme Court and this Court have held that where a trained

police officer detects the odor of burning or burnt marijuana coming from a vehicle,

4
The State does not argue on appeal that the officers’ testimony that they
smelled marijuana coming from the vehicle provided probable cause to arrest Alford.
See Caffee v. State, __ Ga. __ (2) (b) (814 SE2d 386, 392-393) (2018) (“Many
appellate courts, this one included, have concluded that a police officer has probable
cause to search when that officer, through training or experience, detects the smell of
marijuana. But . . . probable cause to search is not the same as probable cause to
arrest. To have probable cause to arrest, additional factors must be present to show
that a particular person is the source of the odor; that is, the arresting officer must
have probable cause to believe that a particular person smells of marijuana because
he is in possession of it.”) (citations and punctuation omitted).

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the officer has probable cause to conduct a warrantless search of the vehicle, provided

that the officer’s ability to identify the odor is placed into evidence. See Douglas v.

State, 303 Ga. 178, 182 (2) (811 SE2d 337) (2018); Jones v. State, 319 Ga. App. 678,

679 (1) (738 SE2d 130) (2013); Williams v. State, 273 Ga. App. 637, 639 (1) (615

SE2d 789) (2005); State v. Folk, 238 Ga. App. 206, 209 (521 SE2d 194) (1999)

(whole court). Such a search can encompass “every part of the vehicle which might

have concealed the drug contraband, including the trunk and closed containers.”

(Citation and punctuation omitted.) Jones, 319 Ga. App. at 679 (1). See Shell, 315 Ga.

App. at 631 (2) (“[W]hen there is probable cause to search for contraband in a car, it

is reasonable for police officers to examine packages and containers without a

showing of individualized probable cause for each one.”) (citations and punctuation

omitted).

The present case involves the interplay between the aforementioned principles

relating to the search of a car for drug contraband and the “fruit of the poisonous tree”

doctrine. “Where there is no legal justification for [an] arrest, its unlawful fruits may

not be introduced in evidence.” Moore v. State, 155 Ga. App. 299, 300 (3) (270 SE2d

713) (1980). See Taylor v. State, 127 Ga. App. 409, 410 (1) (193 SE2d 876) (1972)

(whole court) (“the fruits of an illegal arrest are not admissible in evidence against a

12
defendant”). But, seized contraband is not “fruit of the poisonous tree” merely

because it would not have been found but for the unlawful arrest. See Wong Sun v.

United States, 371 U.S. 471, 488 (III) (83 SCt 407, 9 LE2d 441) (1963); State v.

Cooper, 260 Ga. App. 333, 336 (2) (579 SE2d 754) (2003). “Rather, the more apt

question in such a case is whether, granting establishment of the primary illegality,

the evidence to which instant objection is made has been come at by exploitation of

that illegality or instead by means sufficiently distinguishable to be purged of the

primary taint.” Wong Sun, 371 U.S. at 488 (III). See Cooper, 260 Ga. App. at 336 (2).

Furthermore, even where contraband could not be properly seized from a

vehicle as incident to an arrest, the contraband is not fruit of the poisonous tree, if the

contraband would have been inevitably discovered “during a search based on

probable cause because the officer smelled marijuana in the car.” Foster v. State, 321

Ga. App. 118, 119 (1) (741 SE2d 240) (2013).

Under the inevitable discovery doctrine, if the State can prove by a
preponderance of the evidence that evidence derived from police error
or illegality would have been ultimately or inevitably discovered by
lawful means, then the evidence is not suppressed as fruit of an
impermissible search or seizure. In other words, there must be a
reasonable probability that the evidence in question would have been
discovered by lawful means, and the prosecution must demonstrate that

13
 the lawful means which made discovery inevitable were possessed by
the police and were being actively pursued prior to the occurrence of the
illegal conduct.

(Citation and punctuation omitted.) Id. at 119-120 (1) (upholding trial court’s

conclusion that drugs found in purse in car in which defendant was passenger would

have been inevitably discovered by officer, who “testified that he had smelled

marijuana when he first approached the car, and testified regarding his expertise in

recognizing the odor”).

Here, upon finding that the State had failed to tender the open container

ordinance, the trial court concluded that “the ordinance may not serve as a basis for

upholding the arrest and subsequent search.” However, the trial court did not go on

to address and rule on whether the drugs discovered during the subsequent search of

the backpack in the vehicle constituted tainted fruit of the arrest based on the officers’

testimony regarding the smell of marijuana. In this regard, we note that in its order,

the trial court, as part of its summary of the testimony at the suppression hearing,

pointed out that the arresting officer “stated that he had smelled the odor of burnt

marijuana” before searching the vehicle and finding the backpack where the drugs

were discovered. However, the trial court did not further state in its order whether it

14
credited the officer’s testimony regarding the odor and did not address whether the

officer was qualified to make such a determination. Nor did the trial court address the

“fruit of the poisonous tree” doctrine after concluding that the State failed to prove

the legality of Alford’s arrest.

Under these circumstances, we vacate the judgment and remand the case to the

trial court to address the application of the “fruit of the poisonous tree” doctrine in

the first instance. See Causey v. State, 334 Ga. App. 170, 175 (3) (778 SE2d 800)

(2015) (vacating and remanding for trial court to consider in first instance whether

seized methamphetamine was fruit of the poisonous tree). See generally State v.

Kazmierczak, 331 Ga. App. 817, 822 (771 SE2d 473) (2015) (whole court) (whether

probable cause existed to search based on an odor involves determining whether “the

officer was qualified to recognize the odor based on his or her training and

experience, whether the officer was able to determine the particular location where

the odor was originating from, and whether the officer detected the odor from a place

where he or she was legally entitled to be”); Jones, 319 Ga. App. at 679 (1) (whether

to credit officer’s uncorroborated testimony that he smelled marijuana emitting from

15
the car “was for the trial court, sitting as the trier of fact in ruling on the motion to

suppress,” to determine).

Judgment vacated and case remanded with direction. McMillian and Reese,

JJ., concur.

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