dissenting.
I respectfully dissent from the majority’s affirmance of the judgment of the Court of Appeals. In its effort to endorse the use by the Court of Appeals of the de novo standard of review, the majority erroneously disregards the trial court’s implicit credibility determination and joins the Court of Appeals in ignoring a factual determination made by the trial court concerning dangerousness. Because the trial court’s factual determination that the officer did not believe the speeding driver was dangerous must be upheld since it is supported by evidence, the Court of Appeals’ legal theory permitting the search under State v. Jarrells, 207 Ga. App. 192 (3) (427 SE2d 568) (1993) fails. Consequently, it is the ruling of the trial court, not the Court of Appeals, that must be affirmed.
Jarrells authorizes a police officer who does not arrest an occupant of an automobile to conduct a warrantless search of the vehicle’s passenger compartment if the officer has “ ‘a reasonable belief, based on specific and articulable facts and rational inferences from those facts, that the occupant(s) of the vehicle are dangerous and may gain immediate control of a weapon.’ [Cit.]” Id. at 193. In the case at bar, the trial court summarized its position at the conclusion of the hearing on the motion to suppress by asking rhetorically whether an officer can search a vehicle without knowledge of the presence of a weapon or that the driver is a dangerous person, and then stating its belief that the officer did not have a “particular reason” to think the defendant might be dangerous. Based on that factual determination, the trial court concluded the extension of the search to the automobile was unlawful.
In reviewing a trial court’s order on a motion to suppress, an appellate court must accept the trial court’s factual findings unless clearly erroneous. Tate v. State, 264 Ga. 53 (1) (440 SE2d 646) (1994). Atrial court’s finding of fact will not be deemed to be clearly erroneous if there is any evidence to support it. State v. Thomas, 275 Ga. 167, 168 (562 SE2d 501) (2002). In the case at bar, the trial court’s factual determination that the officer did not believe the driver was dangerous is supported by evidence of the way the officer handled his investigation — he left the unrestrained driver standing by the hood *510of the police cruiser, turned his back on the driver and walked to the driver’s car where he opened the passenger door, and knelt down on the ground to look inside the car. Compare Brown v. State, 269 Ga. 830 (504 SE2d 443) (1998), where the officer locked the unarrested driver in the officer’s patrol car while the officer searched the driver’s vehicle. Instead of accepting the trial court’s finding regarding dangerousness, the Court of Appeals made its own finding- — the officer was a reasonably prudent officer who was warranted in believing his safety was in danger. State v. Silva, 263 Ga. App. 371, 372-373 (587 SE2d 762) (2003); majority op. at 507. Making a finding of fact is not within the purview of an appellate court and, in this case, such appellate action is especially inappropriate since the trial court had made a finding on the issue of dangerousness. Since the trial court had determined the officer did not believe the driver was dangerous, and a valid warrantless search of a vehicle pursuant to State v. Jarrells must be based on a reasonable belief that the vehicle’s occupant is dangerous, the trial court was correct when it concluded the warrantless search of the car was invalid. Accordingly, the Court of Appeals’ judgment reversing the trial court should itself be reversed.
Moreover, the majority appears to believe it has laid to rest the issue of whether there was a credibility issue for resolution by the trial court when the majority determined there was no credibility issue raised by the officer’s “item/weapon” report and testimony. However, my reading of the transcript of the suppression hearing reveals there was another example of inconsistency in the officer’s testimony that could support the trial court making a credibility determination in granting the motion to suppress. The officer testified to three different moments in his investigation when he first smelled marijuana in the driver’s car: in the incident report he read aloud at the suppression hearing, the officer stated he smelled marijuana when he opened the passenger door. At the hearing, he testified he smelled marijuana when he “got real close,” having gone to his knees to look under the passenger seat, and he later testified he smelled marijuana when he picked up the package he found under the passenger seat. Based on this testimony, the trial court could have determined the search was illegal after making a credibility determination adverse to the State’s case. Witness credibility and the weight to be given testimony in a suppression hearing lies solely with the trial court as trier of fact and the trier of fact is not obligated to believe a witness, even if the testimony of that witness is uncontradicted. Tate v. State, supra, 264 Ga. at 56. Furthermore, the trier of fact may accept or reject any portion of the testimony, and the factfinder’s “decision with regard to the questions of fact and credibility must be accepted unless clearly erroneous.” Id. Since there is *511evidence in the record to support the trial court’s implicit credibility determination adverse to the State, a reviewing appellate court must accept it. Both the Court of Appeals and the majority err when they fail to accept the trial court’s implicit credibility determination.
Decided October 12, 2004. Summer & Summer, Daniel A. Summer, W. Bennett Gaff, for appellant. Jason Deal, District Attorney, E. Paul Stanley, Kiesha R. Storey, Assistant District Attorneys, for appellee.I respectfully dissent from the affirmance of the Court of Appeals’ inappropriate reversal of the trial court.