Brimer v. State

• Decision Date: 03 October 1991
• Docket Number: No. A91A1587,A91A1587
• Citation: 411 S.E.2d 128,201 Ga.App. 401
• Parties: BRIMER v. The STATE.
• Court: Georgia Court of Appeals

Page 128

411 S.E.2d 128

201 Ga.App. 401

BRIMER v. The STATE.

No. A91A1587.

Court of Appeals of Georgia.

Oct. 3, 1991.

Wood, Odom & Edge, Arthur B. Edge, IV, Newnan, for appellant.

William G. Hamrick, Jr., Dist. Atty. and David P. Oliver, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

This appeal is by John Benjamin Brimer of the trial court's denial of his motion to suppress in a prosecution for possession of cocaine, to which Brimer pleaded guilty and the trial court permitted appellant to reserve the right to appeal the denial of his motion to suppress.

On September 23, 1990, the Heard County Sheriff's Department received an anonymous call alleging that there was a party going on at a certain residence on Cherry Road where underage persons were drinking alcohol and using drugs. Similar calls had been received about such activities at this house in the past. Deputy John Bennaman, who was the senior officer and "supervising officer on duty" that evening, determined to set up a roadblock about 75 yards from the house on the public road between the house and Highway 34, "to protect the public, to keep anybody under the influence of drugs from getting on the public highway [and] killing or maiming anybody." The roadblock was designed to stop vehicles traveling in either direction; each vehicle was stopped and the driver was asked for his license and proof of insurance and was observed for proof of intoxication.

Appellant was stopped at the roadblock after leaving the house. Deputy Bennaman smelled alcohol on appellant and saw appellant's eyes were dilated; he asked appellant to get out and take a sobriety test. Another white male sat in the passenger seat of appellant's vehicle. While another deputy gave appellant a sobriety test, Deputy Bennaman "looked over in the van for any weapons that might be used against us. And as I looked over at the driver's seat, laying on the floor was a plastic, small plastic pouch with white powder in it; and I confiscated it." Held:

1. As to the procedure used by appellant of pleading guilty while reserving the issue of denial of his motion to suppress, see Mims v. State, 201 Ga.App. 277, 410 S.E.2d 824.

2. Appellant contends on appeal, first, that the roadblock was an improper basis for a lawful search and seizure because it was a mere pretext or subterfuge to stop vehicles and search for drugs such as is condemned in Brisbane v. State, 233 Ga. 339, 343, 211 S.E.2d 294, and was not properly conducted pursuant to the standard which he alleges was established in State v. Golden, 171 Ga.App. 27, 318 S.E.2d 693.

Georgia courts have held that the police may operate roadblocks for the purpose of checking the legality of the operation of vehicles, "without the necessity of any particularized suspicion of wrongdoing." Kan v. State, 199 Ga.App. 170, 404 S.E.2d 281. In Brisbane, supra 233 Ga. at 343, 211 S.E.2d 294, the Georgia Supreme Court in dictum expressed disapproval of the use of "license checks" as a subterfuge to stop and search vehicles "when they are under no founded suspicion." However, that decision involved a random, discriminate stop of a vehicle; in State v. Swift, 232 Ga. 535-536, 207 S.E.2d 459, involving a roadblock set up at the entrance to Jekyll Island during a rock concert, "to check for drivers' licenses, for car inspection stickers ... for fugitives and for runaways," (id. at 535, 207 S.E.2d 459), the same court said: " 'The state can practice preventative therapy by reasonable road checks to ascertain whether man and machine meet the legislative determination of fitness. That this requires a momentary stopping of the traveling citizen is not fatal. Nor is it because the inspection may produce the irrefutable proof that the law has just been violated. The purpose of the check is to determine the present, not the past: is the car, is the driver now fit for further driving? In the accommodation of society's needs to the basic right of citizens to be free from disruption of unrestricted travel by police officers stopping cars in the hopes of uncovering the evidence of non-traffic crimes (cits.), the stopping for road checks is reasonable and therefore acceptable....' " Id., citing Myricks v. United States, 370 F.2d 901, 904; and Connor v. State, 130 Ga.App. 74, 202 S.E.2d 200.

We did not establish, in State v. Golden, supra, specific immutable standards for determining the "reasonability" of a police roadblock, although we did find the roadblock in that case was reasonable. The general factors in State v. Golden were that the procedures did not involve random and arbitrary detention of vehicles, but were organized by experienced superiors for the stopping of all vehicles at the checkpoint, leaving no discretion to officers to focus randomly or discriminately on particular persons; and the stops themselves were minimal and reasonable in terms of time and intrusion. See also Evans v. State, 190 Ga.App. 856, 857, 380 S.E.2d 332.

We do not find the roadblock in this case was unreasonable or was itself an invasion of Fourth Amendment rights. The deputy ordering and conducting the roadblock was an experienced senior officer, and that night also was the "supervising officer on duty," who determined that a roadblock was necessary for public safety at that place and time, to determine "whether man and machine meet the legislative determination of fitness" (State v. Swift, supra 232 Ga. at 535, 207 S.E.2d 459); this purpose and design was neither unreasonable nor arbitrary in the facts of this case. That his reasons, as "supervising officer on duty," for establishing the roadblock were founded upon an anonymous tip or hearsay does not give rise to a conclusion that the roadblock was an unreasonable intrusion upon citizens traveling that public roadway. See Holbrook v. State, ...