THIRD DIVISION

ELLINGTON, P. J.,

DILLARD and MCFADDEN, 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

September 2, 2015

In the Court of Appeals of Georgia

A15A1388. MYERS v. THE STATE.

DILLARD, Judge.

Following a stipulated bench trial, Shameka Shontay Myers was convicted of

possessing less than one ounce of marijuana. Myers appeals this conviction, solely

contending that the trial court erred in denying her motion to suppress evidence

discovered after law enforcement illegally seized a passenger in her vehicle and, thus,

illegally seized her as well. For the reasons set forth infra, we affirm.

At the outset, we note that the Supreme Court of Georgia has reiterated three

fundamental principlesto follow in reviewing a ruling on a motion to suppress. First,

the trial court sits as the trier of fact at a hearing on a motion to suppress,

1

and

1 Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013); Miller

v. State, 288 Ga. 286, 286 (1) (702 SE2d 888) (2010).
because it hears the evidence, the court’s “findings based upon conflicting evidence

are analogousto the verdict of a jury and should not be disturbed by a reviewing court

if there is any evidence to support [them].”

2 Second, the trial court’s decision with

regard to questions of fact and credibility must be accepted “unless clearly

erroneous.”3 Finally, we, as the reviewing court, must construe the evidence “most

favorably to the upholding of the trial court’s findings and judgment.”4

So viewed, the record reflects that at 3:30 a.m. on the day in question, an

officer responded to a noise complaint in a Henry County neighborhood and, while

investigating same, made a mental note of a vehicle parked in front of a house that

had no carsin the driveway. The officer also observed that this vehicle contained two

occupants and its windows were fogged. 

After concluding his investigation into the noise complaint, the officer again

passed by the vehicle and decided to make contact. The officer parked nearby and

2 Miller, 288 Ga. at 286 (1) (punctuation omitted); accord Brown, 293 Ga. at

803 (3) (b) (2).

3 Miller, 288 Ga. at 286 (1) (punctuation omitted); accord Brown, 293 Ga. at

803 (3) (b) (2).

4

 Miller, 288 Ga. at 286 (1) (punctuation omitted); accord Brown, 293 Ga. at

803 (3) (b) (2).

2
approached the vehicle on foot, noticing that the windows were still foggy. He also

detected the odor of marijuana and saw that the passenger was beginning to exit the

vehicle. The officer instructed the passenger to sit back down in the vehicle, which

the passenger did. 

The officer then made contact with the driver, Myers, at her window and

detected an even more overwhelming odor of marijuana when she rolled down the

window. He also observed a hollowed out tobacco wrapper on the ground outside of

the driver’s door. And when he confronted the occupants about the odor, they denied

having marijuana. Thereafter, the officer asked Myers and the passenger to exit the

vehicle separately, conducted a pat down of the passenger, and located marijuana and

drug paraphernalia on the passenger. He then conducted a pat down of Myers and,

although he did not find anything on her, he did discover marijuana in a container on

her side of the vehicle during a subsequent search. 

Following her charge for possession of marijuana, Myers filed a motion to

suppress the evidence, arguing that she was illegally detained after the officer

illegally detained the passenger by ordering the passenger back into the vehicle

without reasonable articulable suspicion of criminal activity. And after a hearing on

the matter, the trial court denied Myers’s motion, finding that the officer had

3
reasonable articulable suspicion after he detected the odor of marijuana upon

approaching the vehicle. Following her conviction in a stipulated bench trial, this

appeal by Myers follows.

As we have previously explained, the Supreme Court of the United States has

sculpted out, at least theoretically, three tiers of police-citizen encounters:

(1) communication between police and citizens involving no coercion

or detention and therefore without the compass of the Fourth

Amendment, (2) brief seizures that must be supported by reasonable

suspicion, and (3) full-scale arrests that must be supported by probable

cause.5

In the first tier, police officers may “approach citizens, ask for identification,

and freely question the citizen without any basis or belief that the citizen is involved

in criminal activity, as long as the officers do not detain the citizen or create the

impression that the citizen may not leave.”6 And here, the trial court correctly

determined that the officer’s initial approach to the vehicle fell under the first

5 Brown v. State, 301 Ga. App. 82, 84 (686 SE2d 793) (2009) (punctuation

omitted); accord Santos v. State, 306 Ga. App. 772, 773-74 (1) (703 SE2d 140)

(2010).

6 Brown, 301 Ga. App. at 84 (punctuation omitted); accord Santos, 306 Ga.

App. at 773-74 (1).

4
category of such encounters.

7 Furthermore, whether or not the officer’s order that the

passenger return to the vehicle escalated the situation to a second-tier encounter as

the trial court determined,

8

the officer at that point unquestionably had reasonable

articulable suspicion to briefly detain both Myers and the passenger.

7

See, e.g., Whitmore v. State, 289 Ga. App. 107, 109 (657 SE2d 1) (2008)

(noting that officer’s approach to make inquiry of vehicles that were already stopped

was a first-tier encounter); Carrera v. State, 261 Ga. App. 832, 834 (584 SE2d 2)

(2003) (“It is well established that an officer’s approach to a stopped vehicle and

inquiry into the situation are not a ‘stop’ or ‘seizure’ but rather clearly fall within the

realm of the first type of police-citizen encounter.” (punctuation omitted)).

8

See Santos, 306 Ga. App. at 774 (“Examples of circumstances that might

indicate a second-tier detention include . . . the use of language or tone of voice

indicating compliance with the officer’s request might be compelled.” (punctuation

omitted)); Akins v. State, 266 Ga. App. 214, 216 (1) (596 SE2d 719) (2004) (“[P]olice

officers may approach a citizen, ask for identification, ask him to roll down a window

or step out of a car, and freely question him without any articulable suspicion, aslong

as the officers do not detain the citizen or create the impression that the citizen may

not leave.”); Johnson v. State, 231 Ga. App. 273, 273 (498 SE2d 359) (1998)

(physical precedent only) (“Defendant’sresponse to the requestfor identification was

‘do I have to.’ In responding affirmatively, the deputy seized the person of

defendant.”). Cf. Whitmore, 289 Ga. App. at 110 (holding that encounter was still

within the first tier when, after making inquiry of vehicles stopped on the side of the

road, officer “requested that [the drivers] move their vehicles to a parking lot . . . so

asto avoid impeding traffic and to ensure greater safety” (emphasissupplied)); Stokes

v. State, 238 Ga. App. 230, 232 (518 SE2d 447) (1999) (“Asking an individual to step

outside for safety reasons is a permissible action that does not rise to the level of a

seizure. This court has also recognized that distinction between and officer’s

‘appropriately deferential’ request for cooperation and a demand rising to the level

of a stop.” (citations omitted) (emphasis supplied)).

5
Articulable suspicion, of course, requires a “particularized and objective basis

for suspecting that a citizen isinvolved in criminal activity.”

9 Thissuspicion need not

meet the higher standard of probable cause, but it must be more than a mere caprice

or a hunch.

10 Thus, in assessing whether a reasonable articulable suspicion exists, we

are charged with looking to “the totality of the circumstances.”11 And in this case, the

officer observed a vehicle with two occupants parked in a residential area at 3:30

a.m., its windows obscured by fog. Then, as the officer approached the vehicle to

make inquiry of the occupants, he detected the odor of marijuana. Indeed, the officer

testified that he first detected the odor as he approached the vehicle, which was

simultaneous with the passenger’s attempt to exit the vehicle, and that the odor was

why he “would have her stay.” The detection of the odor of marijuana provided the

officer with reasonable articulable suspicion to briefly detain both Myers and the

9

State v. Whitt, 277 Ga. App. 49, 50 (625 SE2d 418) (2005) (punctuation

omitted); accord Padron v. State, 254 Ga. App. 265, 268 (1) (562 SE2d 244) (2002).

10 Whitt, 277 Ga. App. at 50; Padron, 254 Ga. App. at 268 (1).

11 Holmes v. State, 293 Ga. 229, 230 (2) (744 SE2d 701) (2013); State v.

Thompson, 256 Ga. App. 188, 189 (569 SE2d 254) (2002).

6
passenger to conduct an investigation into the matter.12 As a result, the trial court

properly denied Myers’s motion to suppress.

Judgment affirmed. Ellington, P. J., and McFadden, J., concur.

12

See, e.g., Bailey v. State, 283 Ga. App. 365, 368 (2) (641 SE2d 548) (2006)

(holding that trial court “could have concluded that [the officer] smelled marijuana

smoke rather than unburned marijuana in [the defendant’s] vehicle, which gave him

a reasonable articulable suspicion of criminal activity”); Tomlin v. State, 242 Ga.

App. 405, 406 (530 SE2d 27) (2000) (“The odor of marijuana emanating from a car

provides a reasonable suspicion that marijuana is present in the car.”).

7