Berry v. State

• Decision Date: 07 September 1982
• Docket Number: No. 64402,64402
• Parties: BERRY v. The STATE.
• Court: Georgia Court of Appeals

Page 562

294 S.E.2d 562

163 Ga.App. 705

BERRY v. The STATE.

No. 64402.

Court of Appeals of Georgia.

Sept. 7, 1982.

Frank J. Petrella, Atlanta, for appellant.

Steven E. Lister, William L. McKinnon, Jr., Asst. Dist. Attys., Jonesboro, for appellee.

QUILLIAN, Chief Judge.

Special Agent Gerald D. Chapman of the Federal Drug Enforcement Administration (DEA) was on duty at the Atlanta International Airport on July 10, 1981. DEA agents use a "drug courier profile" technique in an attempt to identify potential drug couriers arriving in Atlanta from areas where drugs are imported into the United States--such as Miami or South Florida. Agent Chapman has participated in approximately 225 to 250 drug related arrests at the Atlanta airport while on duty there. Using the "drug courier profile" technique while monitoring a flight from Fort Lauderdale to Atlanta, Chapman observed the defendant deplane approximately thirty seconds after all other passengers had departed. From past experience, Chapman attached special significance to this fact as it permitted that person to pick out people in front of him that may be watching the passengers. It also increased the chance that police watching deplaning passengers would have departed. The defendant had a "prominent bulge" in the lower abdominal area, below the belt, that was not consistent with the rest of his body. He also wore his shirt outside his pants to cover the waist area and carried a garment bag in front of this body to cover the abdominal area. From past experience, Chapman knew that drug couriers usually carried drugs strapped to their body or legs. Defendant turned in his ticket folio to the Delta ticket agent and received a ticket to Detroit. Chapman examined defendant's surrendered ticket folio which showed a one-way ticket from Fort Lauderdale, paid for in cash, which did not contain additional baggage checks. The flight reservation showed defendant was flying under the name of James Barnette and gave a telephone call-back number. Chapman called the number listed and no one at that number knew James Barnette nor had anyone at that number made a reservation for a flight to Detroit. At that point, Chapman decided to interview the defendant.

Agent Chapman was dressed in "plain clothes" and was armed, but his weapon was not visible. Chapman approached the defendant and showed him his DEA credentials and identified himself as a Federal DEA agent and asked if he could talk with him. Chapman asked for the purpose of defendant's trip to Florida. Berry stated it was to visit a friend. Chapman asked if his name was James Barnette and if he had any identification. Defendant stated his name was Barnette and he did not have any identification--he had left his wallet and keys in Florida. The defendant "was very nervous ... voice was trembling in his answers, his hands were visibly shaking ... physically perspiring ... his breathing was shallow and rapid ..."

Agent Chapman had received special training in drug identification and is familiar with cocaine hydrochloride. Chapman also has a degree in chemistry and is familiar with the appearance, texture, and "peculiar odor" that is easily identifiable with cocaine hydrochloride. Hydrochloric acid is used to process cocaine and heroin and the higher the purity of the drug, the stronger the acid and more prominent the odor. While Chapman was questioning Berry he detected and recognized the odor he "has smelled in the past associated with narcotics, either the heroin or the cocaine ... Because in both processes ... the cocaine and heroin they used both of the same type of acids in the process which is hydrochloric acid ... And having been a chemistry major and also hav[ing] a degree in chemistry [Chapman] associated that odor with the process of either one of those two drugs. Q. Is it a pronounced distinct odor? A. Yes, it is."

Chapman asked for permission to search the defendant and his garment bag. Berry at first consented, stating he didn't have a choice. Chapman advised him he did not have to consent to the search and Berry withdrew his consent. After Chapman went through the same routine again--Berry left it up to Chapman to decide. Chapman asked the defendant to accompany him to the Delta office and there asked defendant to empty his pockets and luggage. Finally, he asked defendant to explain the bulge around his lower abdomen. Berry said "his back was out" and it was a waistband. Chapman asked him to remove the waistband and then Chapman removed a large packet of cocaine--145.7 grams.

The trial court found: 1) defendant had not been seized when the DEA agents stopped and questioned him initially about his name, purpose of his trip to Florida, etc., 2) that defendant voluntarily accompanied the DEA agents to the room to be searched, 3) that defendant tacitly consented to the search, and 4) that the officer had probable cause to believe that a crime was being committed in his presence and had probable cause to arrest the defendant and conduct a search pursuant to that arrest. Defendant appeals his conviction. Held:

1. Pretermitting the issue of whether the defendant consented to the search, we find sufficient probable cause for the arrest of the defendant and a search incident to that arrest.

Our Supreme Court, in Vaughn v. State, 247 Ga. 136, 138, 274 S.E.2d 479 "reiterated the applicability of the constitutional standard of Beck v. Ohio," 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964) for a lawful arrest without warrant, i.e. "... whether at that moment the facts and circumstances within [the officers] knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [defendant] had committed or was committing an offense." Id. 247 Ga. at 137, 274 S.E.2d 479. "The 'probable-cause' requirements for a search without a warrant are the same requirements necessary for the issuance of a warrant by a magistrate. And these requirements are that the judicial officer issuing such a warrant must be supplied with sufficient information to support an independent judgment that probable cause exists for the issuance of the warrant. See Whitley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971)." Morgan v. Kiff, 230 Ga. 277, 280, 196 S.E.2d 445. " 'In dealing with probable cause ... as the very name implies, we deal with probabilities. They are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.' Brinegar v. United States, 338 U.S. 160, 175, (69 SC 1302 [1308], 93 LE 1879). There is also a great 'difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search.' Draper v. United States, 358 U.S. 307, 311-312, (79 SC 329 [331-32], 3 LE2d 327). As Judge Learned Hand said in United States v. Heitner, 149 F.2d 105, 106 (C.A. 2d Cir.): 'It is well settled that an arrest may be made upon hearsay evidence; and indeed, the "reasonable cause" necessary to support an arrest cannot demand the same strictness of proof as the accused's guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties.' " Sanders v. State, 235 Ga. 425, 440, 219 S.E.2d 768, U.S. cert. den. 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800; Accord: Strauss v. Stynchcombe, 224 Ga. 859, 865, 165 S.E.2d 302; McCorquodale v. State, 233 Ga. 369, 376, 211 S.E.2d 577.

"To justify the arrest without warrant, the officer need not see the act which constitutes the crime take place, if by any of his senses he has personal knowledge of its commission." (Emphasis supplied). Lynn v. State, 130 Ga.App. 646(1), 204 S.E.2d 346. Hence, odor as well as sight, hearing, taste or touch can be used in establishing probable cause. The U. S. Supreme Court has held that "[p]rohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guarantees against unreasonable search." Taylor v. United States, 286 U.S. 1, 6, 52 S.Ct. 466, 467, 76 L.Ed. 951. In a later decision the Supreme Court broadened this holding. "If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character." Johnson v. United States, 333 U.S. 10(1), 68 S.Ct. 367, 92 L.Ed. 436.

This Court has generally followed Taylor, supra, rather than Johnson, supra, holding: "Although there is some controversy as to whether or not the odor of burning marijuana by itself supplies sufficient probable cause for a search or an arrest [Cits.], all opinions of this court are in agreement that 'it may be considered and may be a part of a totality of circumstances sufficient to validate one.' " State v. Medders, 153 Ga.App. 680, 681, 266 S.E.2d 331. Accord: Dickson v. State, 124 Ga.App. 406, 184 S.E.2d 374; Rogers v. State, 131 Ga.App. 136(3), 205 S.E.2d 901; Culpepper v. State, 132 Ga.App. 733(1), 209 S.E.2d 18; Yawn v. State, 134 Ga.App. 77(4), 213 S.E.2d 178. However, "[p]robable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction." Cook v. State, 136 Ga.App. 908, 909, 222 S.E.2d 656. The totality of the circumstances here, cited above, amply support the trial court's finding of probable cause to arrest for a crime being committed in the officer's presence--possession of either heroin or cocaine--as both are controlled substances under the Georgia Controlled Substances Act. Code Ann. Chap. 79A-8 (Ga.L.1974, pp. 221, et seq.). Incident to...