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Howard v. State

The arresting officer lacked probable cause to believe that the defendant had a weapon when he felt the outline of two 3-inch tubular pill bottles in defendant's pocket during a pat-down search.

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A Muscogee County jury found Leroy Howard guilty of multiple counts of violation of the Georgia Controlled Substances Act and possession of a firearm with an altered identification mark. On appeal, he challenges the trial court’s denial of his motion to suppress, claiming that an investigating officer exceeded the scope of a Terry1 pat down when he pulled open Howard’s pocket in order to discover what was in it. Under the facts of this case, we agree and reverse.

An informant told members of the Metro Narcotics Task Force that she could purchase a quantity of marijuana from Howard. At the request of law enforcement, the informant telephoned Howard late in the evening to arrange for a purchase. The call was recorded. Howard told the informant that he did not have any “weed” at his house because he “done carried it on up to the country. Just got back and got in the bed.” Howard told the informer that he would have the marijuana to sell in the morning: “get up early now and I’ll call you by mid-morning.” This information confirmed what the agents already knew to be Howard’s pattern of behavior. After a 1997 drug arrest following the execution of a search warrant at his trailer in the “country,” i.e., Harris County, Howard told the arresting officers that he sold drugs in Columbus, but brought them out to Harris County every evening. In addition, during an impound search of Howard’s vehicle pursuant to a 1998 incident, marijuana was found hidden in his car.2

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