Bothwell v. State

• Citation: 300 S.E.2d 126,250 Ga. 573
• Decision Date: 08 February 1983
• Docket Number: No. 39097,39097
• Parties: BOTHWELL v. The STATE.
• Court: Supreme Court of Georgia

Page 126

300 S.E.2d 126

250 Ga. 573

BOTHWELL v. The STATE.

No. 39097.

Supreme Court of Georgia.

Feb. 8, 1983.

Rehearing Denied Feb. 22, 1983.

Douglas N. Peters, Decatur, for Roderick D. Bothwell.

William L. McKinnon, Jr. and Michael D. Anderson, Asst. Dist. Attys., Jonesboro, for the State.

MARSHALL, Presiding Justice.

This case is here on certiorari. Bothwell v. State, 163 Ga.App. 261, 293 S.E.2d 720 (1982). Presented for decision are questions concerning the use by law enforcement authorities of the so-called "drug courier profile," as well as their use of police dogs trained to detect the smell of certain drugs. Certiorari was granted because of the importance of these questions to both the enforcement of the criminal law and the safeguarding of interests protected by the Fourth Amendment. These are the facts of the case herein.

At approximately 9:00 a.m. on August 21, 1981, special DEA Agent Gerald Chapman was posted at Gate 821 at the Atlanta International Airport, awaiting the arrival of Delta Flight 1140 from Fort Lauderdale, Florida. Present with him was DEA Agent Paul Markonni.

Chapman observed the defendant Bothwell deplane, approach a Delta gate agent, and ask about a connecting flight to Phoenix, Arizona. Chapman observed that the defendant had a revalidated ticket in the name of Michael Thomas, which he had paid for in cash and which had one baggage claim attached. Chapman proceeded to a Delta computer terminal, from which he determined that two reservations had been made in the name of Michael Thomas. A telephone number was given on only one of the reservations, and Chapman called that number but the person answering professed no knowledge of Thomas or the airline reservations.

Chapman then went to the waiting area where the defendant was sitting. He identified himself as a DEA agent, and he asked the defendant if he could speak with him for a few minutes. The defendant responded that he could. Chapman asked to see the defendant's airline ticket, and the defendant handed it to him. The defendant told Chapman that his name was Michael Thomas but that he did not have any identification. (At this point, Chapman testified, the defendant began to behave in a nervous manner and, as the interview progressed, he acted increasingly nervous.) The defendant stated that he lived in Phoenix, and he gave a telephone number for his residence. Agent Markonni then called this number, but the person answering the telephone denied that he knew any Michael Thomas or anything about the airline reservation.

Chapman then again informed the defendant that he had Markonni were narcotics agents, and he asked the defendant whether he would allow himself and his luggage to be searched for narcotics. The defendant responded that he would. The defendant's luggage was retrieved by Markonni, and Chapman suggested that they search the luggage in a nearby Delta office in order to avoid causing the defendant any public embarrassment. The defendant agreed.

A pat-down search of the defendant revealed no narcotics or drugs. Before the luggage was searched, the defendant withdrew his consent. At that point, the defendant was allowed to leave and he continued on his flight to Phoenix. The suitcase was detained, and an Atlanta police officer was contacted who came to the airport with a dog who had been trained to detect the presence of drugs through his sense of smell. By biting and scratching the suitcase, the dog indicated that there were drugs therein. A search warrant was then obtained for the suitcase. The search of the suitcase produced a plastic bag containing cocaine. A warrant was then issued for the defendant's arrest. He was arrested as he was deplaning in Phoenix, and it was determined that his name is Bothwell and not Thomas.

Agent Chapman testified that he decided to interview the defendant because he fit several aspects of the so-called drug courier profile, i.e., traveling alone, traveling from an identified source city, flying under a false name, carrying little or no luggage, purchasing an airline ticket with cash, acting very nervous, and giving false information to the airline. Chapman further testified that the total interview time of the defendant was between five and ten minutes and that he never touched the defendant except during the pat-down.

The trial court denied the defendant's motion to suppress the cocaine, and he was convicted of the felony offense of trafficking in cocaine and the misdemeanor offense of giving a false name to a law enforcement officer. On appeal, the Court of Appeals affirmed. We granted certiorari. For reasons which follow, we affirm.

1. "The seven primary characteristics [of the drug courier profile] are: (1) arrival from or departure to an identified source city; (2) carrying little or no luggage, or large quantities of empty suitcases; (3) unusual itinerary, such as rapid turnaround time for a very lengthy airplane trip; (4) use of an alias; (5) carrying unusually large amounts of currency in the many thousands of dollars, usually on their person, in briefcases or bags; (6) purchasing airline tickets with a large amount of small denomination currency; and (7) unusual nervousness beyond that ordinarily exhibited by passengers.

"The secondary characteristics are (1) the almost exclusive use of public transportation, particularly taxicabs, in departing from the airport; (2) immediately making a telephone call after deplaning; (3) leaving a false or fictitious call-back telephone number with the airline being utilized; and (4) excessively frequent travel to source or distribution cities." United States v. Berry, 670 F.2d 583, 599 (5th Cir.1982).

"[C]ases involving the legality of stops, interrogations, and searches of suspected drug smugglers by law enforcement officers at airports ... raise fundamental constitutional issues concerning the Fourth Amendment safeguards protecting individuals against unreasonable searches and seizures." Id., at p. 588. Accordingly, in Berry the former Fifth Circuit Court of Appeals, sitting en banc, has issued an opinion attempting to provide guidance in this difficult area.

2. Whether a given contact between the police and citizens constitutes a "seizure" within the meaning of the Fourth Amendment--and, if so, is "reasonable"--is determined by "balancing the government interest involved against the nature of the intrusion on the individual." United States v. Berry, supra, at p. 590. See United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Here, the interest of the individual is the right embodied in the Fourth Amendment to be free from arbitrary interference by law enforcement authorities. The majestic purpose underlying this Fourth Amendment right is nothing less than the vouchsafement of our democratic form of government by insuring that it is not turned into a police state. Balanced against the interest of the individual is the very substantial interest of government in terminating the widespread and proliferating practice of trafficking in illegal drugs. "The toll on our society in lives made wretched, in costs to citizens, and in profits of gross size funnelled to the most odious criminals, is staggering." United States v. Berry, supra, at p. 594. It can also be noted that these exorbitant profits are used to facilitate trafficking in the drug through the bribery of public officials, and this corruption of public officials in itself poses a grave threat to society.

Using a balancing-of-interests test, the Supreme Court in Terry v. Ohio, supra, held that even though a police pat-down of a potentially dangerous individual may constitute a seizure within the meaning of the Fourth Amendment, it can be based on a showing of "reasonable suspicion" to believe that criminal activity is afoot rather than the more rigorous standard of "probable cause" to believe that a particular crime has been committed (the probable-cause standard being required for a full-blown arrest). See also Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). On the other hand, it was held in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), that the stopping of automobiles on the highways at the unbridled discretion of law enforcement officials cannot be justified by the state's interest in promoting public safety on the roads.

Of course, the Fourth Amendment in no way prohibits voluntary interaction between citizens and police. Coolidge v. New Hampshire, 403 U.S. 443, 488, 91 S.Ct. 2022, 2049, 29 L.Ed.2d 564 (1971); Terry v. Ohio, supra. "Only when the officer, by means of physical force or a show of authority, has in some way restrained the liberty of a citizen may he conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S., supra, at p. 19, n. 16, 88 S.Ct. at p. 1879, n. 16.

3. On two occasions, the United States Supreme Court has considered use of the drug courier profile as a basis for conducting a seizure of an individual and search for drugs.

In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), the defendant had been stopped by DEA agents because her behavior fit aspects of a drug courier profile. She was asked to consent to a search. She then began to disrobe and took packets containing heroin from her undergarments.

Two Justices of the United States Supreme Court concluded that there had not been a "seizure" of the defendant and that she had consented to the search. Three Justices opined that even if there had been a seizure it was justified by reasonable suspicion. Four Justices dissented on the ground that the defendant's conduct was insufficient to lead a police officer to reasonably to conclude that criminal activity was afoot.

In Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980), the Court in a per curiam opinion held that a DEA agent could...