Barraco v. State, A00A0631.

• Decision Date: 07 July 2000
• Docket Number: No. A00A0631.,A00A0631.
• Citation: 244 Ga. App. 849,537 S.E.2d 114
• Parties: BARRACO v. The STATE.
• Court: Georgia Court of Appeals

537 S.E.2d 114

244 Ga. App. 849

BARRACO v. The STATE.

No. A00A0631.

Court of Appeals of Georgia.

July 7, 2000.

Certiorari Denied November 30, 2000.

Gilbert J. Murrah, Bainbridge, for appellant.

Ben Kirbo, Solicitor, for appellee.

BLACKBURN, Presiding Judge.

Following a jury trial in which the evidence was submitted by stipulated fact, Michael Barraco appeals his conviction of misdemeanor possession of marijuana. Barraco contends the trial court erred in denying his motion to suppress evidence of marijuana found during a search of his person, following a traffic stop. Barraco, who was initially stopped because of a defective headlight, contends the inquiry which followed his accidental display of rolling papers during his search for his driver's license exceeded the scope of the initial search. He also contends that the officer failed to give him required warnings under Miranda v. Arizona, 384 U.S 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1996), prior to searching him after he had told the officer that he used the rolling papers to smoke marijuana. We affirm.

An appellate court reviewing a trial court's order on a motion to suppress evidence must accept the trial court's decisions with regard to questions of fact and credibility unless they are clearly erroneous. The reviewing court must also construe the evidence most favorable to the upholding of the trial court's findings and judgment and must not disturb the findings of the trial judge unless no evidence exists to support them.

(Citation omitted.) Parker v. State, 233 Ga. App. 616, 617, 504 S.E.2d 774 (1998).

The facts as presented at the hearing on the motion to suppress are not in dispute. The parties stipulated the facts at trial. On February 13, 1999, Officer Green observed a car with a malfunctioning right headlight on U.S. Highway 27 in Decatur County. Officer Green stopped the car which was driven by Barraco. After advising Barraco of the reason for the stop, Officer Green asked Barraco for his driver's license and proof of insurance. Barraco pulled out his wallet, and a package of rolling papers fell out. At that point, Barraco appeared to become nervous and his hand trembled. Officer Green asked Barraco about the rolling papers, and Barraco replied he had them because he smoked marijuana. Officer Green then asked Barraco if he had any marijuana on him or in the car, and Barraco said he did not.

Officer Green asked Barraco if he could search him and the car. Barraco denied permission to search. Based on the rolling papers, the trembling of Barraco's hand immediately upon the disclosure of the papers, his general nervousness, and his statement that he smoked marijuana and used the papers to do so, Officer Green told Barraco he was going to search him and the car. Officer Green asked Barraco to get out of the car. Then, as part of the general search, Officer Green asked Barraco to empty his pockets. After he did so, Officer Green observed a bulge still in Barraco's pocket and asked him to remove the item from his pocket, which Barraco did. The item was a plastic sandwich bag containing marijuana.

1. Barraco argues that, while the initial stop for the burned-out headlight was valid, Officer Green's inquiry about the rolling papers unreasonably exceeded the permissible scope of the stop. The law generally provides that

[a]n investigatory traffic stop [should be] limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop. Smith v. State, 216 Ga.App. 453, 454-455, 454 S.E.2d 635 [(1995)].

(Citations and punctuation omitted.) State v. Blair, 239 Ga.App. 340, 341, 521 S.E.2d 380 (1999).

Here, Barraco opened his wallet to locate his license, the rolling papers fell out, and Officer Green immediately asked about their use. Barraco admitted that he used the papers to smoke marijuana. It was this response, coupled with the totality of the circumstances, above described, which provided an articulable suspicion that a crime was being committed and justified further inquiry.

In contrast, we have held that an officer's inquiry is unreasonable where the totality of the circumstances does not rise to such a level. For example, where the officer asks innumerable questions unrelated to the stop and which, almost inevitably, draw answers the officer finds "suspicious." Migliore v. State of Ga., 240 Ga.App. 783, 525 S.E.2d 166 (1999) (after stopping car for weaving, officer received conflicting answers about the nature of the relationship of the passenger and driver and their itinerary); Blair, supra (after stopping car for lack of a tag, officer received conflicting explanations about purpose of journey and ownership of car).

Under the unique circumstances here, we cannot say that the trial court erred in holding that Officer Green's further investigation did not exceed the permissible scope of the stop.

2. We now determine whether the totality of the circumstances and facts combined to establish probable cause to justify a search of Barraco and the vehicle. We note, however, that the trial court used the wrong legal standard to authorize the search. The sole evidentiary basis for the search is provided by the arresting officer's testimony that

when I asked him for his driver's license and insurance, he pulled his wallet out and he was going through his wallet. And he pulled out a package of J & B rolling papers. And at the time he pulled the rolling papers out while he was looking for his license his hand started trembling. I asked him about the rolling papers and he stated he had them because he smoked marijuana. I asked him if he had any marijuana on him or in the vehicle. He stated he did not. He stated that he drove for Bennett Sea Food and he had gotten off and he was on his way home. He stated he didn't smoke at work. I had 911 check his license. They came back valid. I asked him for consent to search him and the vehicle and he denied me consent. Based on him saying that he smoked marijuana, the rolling papers, and his hand starting to tremble, I went ahead and decided to conduct the search.

Thereafter, the State rested, and the prosecutor argued to the trial court that

[n]umber one, we all know an officer is entitled to search as part of any traffic stop without a warrant.¹ Number two, even were that not so, this Officer has outlined the articulable suspicion necessary to effectuate the search in the nervousness in the presence of the J & B rolling papers indicative of marijuana use, as well as the trembling hands.

After hearing argument, the trial court determined that "I think there is an articulable suspicion assuming—And of course, I'm not having to rule on the truthfulness of that. But assuming that to be true, I...