Allen v. State

• Decision Date: 20 November 1984
• Docket Number: No. 68696,68696
• Citation: 324 S.E.2d 521,172 Ga.App. 663
• Parties: ALLEN v. The STATE.
• Court: Georgia Court of Appeals

Page 521

324 S.E.2d 521

172 Ga.App. 663

ALLEN v. The STATE.

No. 68696.

Court of Appeals of Georgia.

Nov. 20, 1984.

Diane E. Marger, Atlanta, for appellant.

Robert E. Keller, Dist. Atty., William L. McKinnon, Jr., Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellant was tried before a jury and convicted of two counts of violating the Georgia Controlled Substances Act. She appeals from the judgments of conviction and sentences entered on the guilty verdicts.

The facts, as established by the record, are as follows: On January 7, 1983, Drug Enforcement Administration Agent Paul Markonni and Clayton County Detective Lynn Collier were observing passengers deplane a flight from Miami, Florida. Markonni observed a passenger, who was later identified as Al Brown and who became appellant's co-indictee, ask an airline employee the gate number of his connecting flight to Chicago. Brown was not carrying an airline ticket envelope. Some distance behind Brown, appellant left the plane carrying two airline ticket envelopes. Appellant did not ask the airline employee for any information. However, as appellant started to walk past, the airline employee asked appellant if she needed flight information. Appellant responded, "Chicago." After receiving the flight information, appellant proceeded down the concourse behind Brown, who continually looked over his shoulder in appellant's direction. Based on their belief that appellant and Brown were traveling together but were attempting to conceal that fact, Markonni and Collier followed them. When Brown arrived at the gate of his connecting flight, he remained in the area, but he did not check in. Appellant, however, presented both of her tickets at the gate and received two boarding passes. Appellant then went to a telephone and made a call. Collier overheard appellant state in her telephone conversation, "I'm trying to help him out, make a little extra money." Collier related this information to Markonni. While appellant was using the phone, Markonni determined that the appellant's tickets were sequentially numbered and had been paid for with cash.

Based upon the foregoing, Markonni determined that appellant exhibited several characteristics of the drug-courier profile, and he suspected that appellant was, in fact, carrying illegal drugs. With their weapons concealed on their persons, Markonni and Collier, who were casually dressed and not in uniform, approached appellant in the middle of the concourse. Appellant stopped, and Markonni identified himself and Collier as law enforcement officers. Markonni displayed his credentials and asked appellant if he and Collier could speak to her. She responded "Yes." Markonni then asked appellant if he could see her airline ticket. Appellant opened both ticket envelopes and handed Markonni a ticket issued in the name of Julie Allen. Markonni returned the ticket and asked if appellant had any identification. Appellant produced a driver's license issued in the same name. At that point, Markonni told appellant that he and Collier were drug agents looking for narcotics and asked appellant if she would consent to a search of her person by Collier. Markonni testified that appellant "indicated that she would consent to the search." Appellant was then asked by Markonni if she was traveling alone. Her first response was "Yes." When asked again, however, she responded "Maybe." Finally, appellant volunteered that she was traveling with someone. Markonni then explained that the search could be conducted in a nearby private office and that it would take only a few minutes. This entire encounter lasted less than three minutes. Throughout, neither Markonni nor Collier touched appellant. They stood at her right front side, and Markonni spoke in a conversational tone.

Appellant accompanied Collier into a private office. Once inside the office, Collier informed appellant that she had the right to refuse to submit to a search of her person and the right to consult with an attorney. Collier asked appellant if she understood, and appellant responded that she did. Appellant was asked to stand and place her hands against the wall. A pat down search was initiated at appellant's waist and progressed up appellant's body. In the area of appellant's chest, Collier felt a suspicious bulge that she knew "was not breast nor bra." After stating that she felt the unusual bulge, Collier asked appellant to lift up her sweater so that she could see what it was. Appellant responded "No," and slowly began to lower her hands. Collier then placed appellant under arrest and removed the bulge herself. It was a package which later proved to contain cocaine.

Shortly thereafter, Brown was placed under arrest. Both appellant and Brown were read their Miranda rights. Markonni took possession of appellant's airline ticket, to which a baggage claim check was attached. The suitcase to which the corresponding claim check was attached was retrieved, and appellant acknowledged that the suitcase was hers. Markonni asked if he could search the suitcase, and appellant stated that he could. Although appellant further stated that the locked suitcase would have to be broken open because she did not have the key, it was unlocked with the key which was found in Brown's possession. A quantity of marijuana was found inside the suitcase.

1. Appellant enumerates as error the denial of her motion to suppress evidence of the illegal drugs, contending that she was illegally "seized" within the meaning of the Fourth Amendment during her encounter with the two officers on the concourse.

"The Fourth Amendment's proscription against unreasonable searches and seizures governs all seizures of the person, 'including seizures that involve only a brief detention short of traditional arrest. [Cits.]' [Cit.] 'The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but "to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." [Cit.]' [Cit.] In distinguishing between an intrusion amounting to a 'seizure' of the person and an encounter that intrudes upon no constitutionally protected interest, we adopt that standard proposed by Justice Stewart in United States v. Mendenhall, [446 U.S. 544, 554 (100 SC 1870, 64 L.Ed. 497) (1980) ]: '(A) person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " Moran v. State, 170 Ga.App. 837, 840, 318 S.E.2d 716 (1984). See also McAdoo v. State, 164 Ga.App. 23(1), 295 S.E.2d 114 (1982).

In other words, the "Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, brief 'seizures' that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause. [Cits.]" United States v. Berry, 670 F.2d 583, 591 (5th Cir.1982). Factors determinative of whether or not an intrusion or "seizure" has occurred "include the lack of interference with the individual's progress, ascertaining whether the individual is willing to cooperate with police before making further inquiries, no display of official authority beyond a statement that the person stopping the individual is a law enforcement officer, and conducting the encounter in an appropriately deferential manner to avoid causing the individual ... anxiety and fear...." McAdoo v. State, supra, 164 Ga.App. at 26-27, 295 S.E.2d 114.

Under the facts of this case, it is clear that appellant was not "seized" during her encounter with Markonni and Collier on the concourse. As previously stated, the law enforcement officers did not display weapons. They were dressed in casual clothing and identified themselves. Markonni spoke in a conversational tone, asking for, rather than demanding, appellant's tickets and identification. Markonni held the ticket and driver's license only long enough to read them before returning them to appellant. The agents stood at appellant's side and did not block her path. Furthermore, the agents assured appellant that they would not cause her to miss her connecting flight.

" 'In short, nothing in the record suggests that [appellant] had any objective reason to believe that [she] was not free to end the conversation in the concourse and proceed on [her] way, and for that reason we conclude that the agent[s'] initial approach to [her] was not a seizure.' [Cits.]" Voight v. State, 169 Ga.App. 653, 654, 314 S.E.2d 487 (1984). See also State v. Reid, 247 Ga. 445, 449 (276 S.E.2d 617) (1981); Moran v. State, supra, 170 Ga.App. at 839(1), 318 S.E.2d 716; McShan v. State, 155 Ga.App. 518(1), 271 S.E.2d 659 (1980).

2. Appellant further asserts that after Markonni verified that the name on her ticket and on her identification corresponded, his subsequent request to search and his further questioning constituted an illegal detention.

Our review of the record reveals no evidence to authorize a finding that appellant had any cause to believe that she was no longer free to leave after she had identified herself. The evidence demonstrates that after Markonni returned appellant's ticket and identification, the encounter continued in a "deferential manner." In effect, appellant tacitly consented to stay and to answer Markonni's questions.

We know of no rule which mandates that a voluntary encounter between an officer and an individual must necessarily end once the officer determines that the individual possesses an airline ticket and a driver's license with corresponding names. Appellant voluntarily remained in the officer's presence after providing identification, and no illegal seizure occurred at this point. See generally Voight v....