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Gary v. State

Officer's request for defendant to lift his lip was in furtherance of defendant's voluntarily consent to a search of his mouth.

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Jonathan D. Gary filed a motion to suppress evidence found during what he contends was an illegal search of his person. The trial court denied the motion. Gary appeals, and we affirm.

In construing the evidence most favorably to uphold the trial court’s findings and judgment,1 the facts adduced at the motions hearing show that at approximately 11:40 p.m., Lowndes County Narcotics Division Investigators Wilbur and Pitchford were conducting a routine patrol of a high drug crime area in Valdosta, Georgia. Gary was alone on the street walking westbound. When Gary saw the investigators’ patrol car, “he immediately stopped, turned around and started walking back in the other direction.” The investigators went around the block and pulled up beside Gary. Investigator Pitchford was familiar with Gary and knew that “he is not normally on that side of town.” The investigators approached Gary and asked his name; Gary told them. Investigator Wilbur asked if he could pat Gary down for weapons and drugs, and Gary said yes. Wilbur asked Gary if he would empty his pockets and Gary complied. The investigators testified at the motion hearing that they did not imply Gary was required to cooperate with any of their requests; that Gary was not under arrest; and that Gary was free to leave at any time, since there was “nothing we could have done. I mean, if he said, I don’t want to talk to you, see you later, he could have walked off and left.”

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