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Hernandez-Espino v. State

The defendant's consent to search was tainted because it occurred during an unlawful second-tier encounter with a law enforcement officer.

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We granted Jose Herminio Hernandez-Espino’s application for interlocutory review of the trial court’s denial of his motion to suppress crack cocaine found in his pocket during a search to which he consented. We agree with Hernandez-Espino that his consent to the search was tainted because it occurred during an unlawful second-tier encounter with law enforcement officers. Accordingly, we reverse.

“The burden of proving a search was lawful is on the state. The state thus has the burden of proving the validity of a consensual search. Moreover, we are required to scrutinize closely an alleged consent to search.” Foster v. State, 285 Ga. App. 441, 442 646 SE2d 302 2007 citations and punctuation omitted. In reviewing the denial of a motion to suppress on appeal, “we owe no deference to the way in which the trial court resolved questions of law, but we generally accept its findings about questions of fact and credibility unless clearly erroneous.” Edenfield v. State, __Ga.__, __ 2 __SE2d__ Case No. S13P0210, decided June 17, 2013 citation and footnote omitted.

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