Lindsey v. State

Following a bench trial, the Superior Court of Gwinnett County convicted Phillip Lindsey of possession of methamphetamine, OCGA § 16-13-30. Lindsey appeals, challenging the court’s denial of his motion to suppress evidence seized during the execution of a civil Order to Apprehend for mental health evaluation. Because the search exceeded the scope of a pat-down for weapons and because Lindsey was not at the time of the search under arrest, based on probable cause, for a criminal offense, we reverse.

Where, as here, evidence presented at a hearing on a motion to suppress is uncontroverted and there are no questions of credibility, we review de novo the trial court’s application of the law to undisputed facts. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). The evidence at the hearing in this case established the following undisputed facts. On August 18, 2004, the Probate Court of Gwinnett County issued an Order to Apprehend pursuant to OCGA § 37-7-41 (b) 1 commanding “any peace officer... to take [Lindsey] into custody” and deliver him to “a staffed Gwinnett mental health facility or Gwinnett medical center emergency room ... for an examination *645 as prescribed by law.” The basis for the order was that “upon affidavits on file in [the judge’s] office” Lindsey was “alleged to be... a drug dependent person requiring involuntary treatment and . . . presenting] a substantial risk of imminent harm to himself/herself or others as manifested by either recent overt acts or recent expressed threats of violence which present aprobabihtyofphysical injury to himselfdierself or to other persons.”

That day, an officer located Lindsey in a bar and asked him to step outside. After explaining the terms of the Order to Apprehend to Lindsey in a parking area outside the bar, the officer implemented the sheriffs department protocol that he followed whenever he placed an arrestee in the back of his patrol car. Specifically, the officer handcuffed Lindsey behind his back and then patted the outside of Lindsey’s clothing. During the pat-down, the officer did not detect anything that felt like a weapon. The officer did, however, feel a pack of cigarettes 2 and “something else that was soft and it did feel like it would be a baggie of some sort” in Lindsey’s pants pocket. Then, pursuant solely to the protocol, the officer “emptied [Lindsey’s] pockets” looking for “weapons and contraband.” The officer reached into Lindsey’s pocket and removed a plastic bag, measuring approximately one inch by 1.5 inches and containing white powder which turned out to be a gram or less of methamphetamine. The officer placed Lindsey under arrest for possession of the drug and transported him to jail for booking, rather than to a mental health facility or emergency room for examination.

It is undisputed that at the time the officer reached into Lindsey’s pocket he did not have probable cause to believe that Lindsey had committed any crime. Although Lindsey cooperated with the officer’s execution of the Order to Apprehend and “did not resist arrest,” there is no evidence that Lindsey consented to the search.

At the conclusion of the hearing on Lindsey’s motion to suppress the methamphetamine, the trial court concluded that the search was permissible as being incident to an arrest. Lindsey contends that the search of his pockets exceeded the scope of what was necessary to ensure the officer’s safety while transporting him pursuant to the probate court mental health evaluation order. In particular, Lindsey argues that the trial court erred in finding as a matter of law that the officer searched Lindsey pursuant to a lawful arrest, as authorized by OCGA§ 17-5-1. 3 We agree.

*646 “Under [OCGA § 17-4-1 4 ] a person is under arrest whenever his liberty to come and go as he pleases is restrained, no matter how slight such restraint may be.” (Citations and punctuation omitted.) State v. Nelson, 261 Ga. 246, 247 (1) (b) (404 SE2d 112) (1991). But not every taking of a person into custody by a peace officer constitutes an arrest. “Arrest” by definition denotes taking into custody an “offender against the penal laws, based on probable cause.” OCGA § 17-4-40 (procedures for issuance of an arrest warrant in Criminal Procedure Code). See also OCGA §§ 17-4-20 (authorization of arrests “for a crime”); 17-4-60 (grounds for arrest of “an offender” by a private person). See also Terry v. Ohio, 392 U. S. 1, 16 (II) (88 SC 1868, 20 LE2d 889) (1968) (recognizing that the Fourth Amendment applies to a seizure of a person which does not rise to the level of an arrest, which is defined “in traditional terminology” as a seizure which “eventuate [s] in a trip to the station house and prosecution for crime” and which is lawful only when the arresting officer “is apprised of facts sufficient to warrant a belief that the person has committed or is committing a crime”); LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 5.1 (a) (4th ed. 2006).

Although this case presents an issue of first impression in Georgia, the custody authorized by an order to apprehend pursuant to OCGA §§ 37-3-41 (a) and 37-7-41 (b) is plainly civil protective custody, not a criminal arrest. See Davis v. Charter-By-The-Sea, 183 Ga. App. 213, 215 (1) (358 SE2d 865) (1987) (OCGA§ 37-7-41, which provides “for the involuntary delivery, by a peace officer, of a patient suffering from alcoholism or drug abuse to an ‘emergency receiving facility’ for the purpose of obtaining an examination of that person... envisions a civil arrest and custody and delivery”). 5 The common *647 thread running through the criminal procedure statutes discussed above is that authority to make a criminal arrest arises from a determination that there is probable cause to believe the person is an offender against the penal laws. Under Georgia’s Mental Health Code, by contrast, taking a person into civil custody is not an arrest of a criminal offender based on probable cause. Other jurisdictions have reached the same conclusion with respect to similar statutes. See, e.g., State v. Friend, 711 SW2d 508, 510 (Mo. 1986) (person transported to j ail for detoxification and safekeeping pursuant to civil statute was not under arrest); State v. Lawrence, 648 P2d 1332 (Ore. App. 1982) (person taken into protective civil custody for detoxification was not arrested in the criminal sense); Cordell v. Weber, 673 NW2d 49 (S.D. 2003) (person transported to jail for emergency mental health evaluation was not under arrest). 6 As a result, we hold that a peace officer executing an order to apprehend pursuant to OCGA §§ 37-3-41 (a) and 37-7-41 (b) does not thereby arrest the person to be examined such that a search incident to arrest is authorized. 7

*648 Nor does a search of a civil detainee before being placed in a patrol car, absent some valid reason for the officer to take custody of the clothing, container, or bag searched, come within the ambit of allowable inventory searches. An inventory search of property found on the person or in the possession of an arrested person before placing the arrestee in jail is reasonable and constitutionally permissible if conducted in accordance with standard police practice. Illinois v. Lafayette, 462 U. S. 640, 643-645 (II) (103 SC 2605, 77 LE2d 65) (1983). Inventory searches support several governmental interests, including the need to safeguard the facility by preventing the introduction of objects which could be used to harm other prisoners or the detainee himself; protection of the police from danger; protection of the detainee’s property while it remains in police custody; protection of police from false claims and disputes over lost or stolen property; and ascertaining or verifying the identity of the person being incarcerated. See id.; South Dakota v. Opperman, 428 U. S. 364, 369 (96 SC 3092, 49 LE2d 1000) (1976); United States v. Edwards, 577 F2d 883, 893 (II) (C) (5th Cir. 1978); LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 5.3 (4th ed. 2006). “A police inventory of some possession of the arrestee, such as a suitcase [or the arrestee’s clothing], presupposes that the police had some valid reason for taking custody of that object, for it is only because of such taking of custody that the police can be said to have some obligation to safeguard the contents.” LaFave, Search and Seizure, A Treatise on the Fourth Amendment, § 5.5 (a) (4th ed. 2006). Thus, an inventory search which is not necessary to achieve the recognized custodial goals of such a search is not permissible. Gaston v. State, 155 Ga. App. 337 (270 SE2d 877) (1980). In jurisdictions that have considered the question, inventory searches have been permitted before a person was placed inside the secure area of a jail, even where the person was not under arrest but was being held in protective custody such as for detoxification. 8 We find no controlling precedent, however, authorizing a full inventory search on the basis that a person will be trans *649 ported to another location in a patrol car. 9

Because the law enforcement officer in this case lacked any reason to believe that a search more intrusive than a Terry-type pat-down was necessary to protect his own and Lindsey’s safety en route to the mental health facility, and because the officer lacked probable cause to believe that Lindsey had committed any crime, a full search of Lindsey’s person before placing him in the patrol car was an unreasonable intrusion. Accordingly, the trial court erred in denying Lindsey’s motion to suppress the drugs found during that search.

Judgment reversed.