Cuevas v. State, 58015

• Decision Date: 31 October 1979
• Docket Number: No. 58015,58015
• Citation: 151 Ga.App. 605,260 S.E.2d 737
• Parties: CUEVAS et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 737

260 S.E.2d 737

151 Ga.App. 605

CUEVAS et al. v. The STATE.

No. 58015.

Court of Appeals of Georgia.

Argued June 12, 1979.

Decided Sept. 11, 1979.

Rehearing Denied Oct. 3, 1979.

Certiorari Denied Oct. 31, 1979.

Daryl J. Walker, Savannah, Robert A. Spiegel, Coral Gables, Fla., Richard Essen, Miami, Fla., for appellants.

Dupont K. Cheney, Dist. Atty., Kenneth R. Carswell, Hinesville, for appellee.

QUILLIAN, Presiding Judge.

The defendant and his four companions appeal their conviction of one count of possession of marijuana with intent to distribute. Deputy Sheriff Dasher, of Liberty County, was patrolling on the evening of March 13, 1978, at approximately 10:30 p. m. when he observed someone walking in the area of a warehouse in which all of the lights were off. He "didn't know whether they were breaking in or what, so (they) stopped to check it out." It was the owner, Sue Youngblood, who advised them "everything was alright." They were aware of her previous "record." The deputy stated: "We realized something wasn't right . . . " They set up surveillance across the road. A red and silver Thunderbird automobile entered the warehouse area and Sue Youngblood talked to them. She said something about "money" to the driver. The car left and a red and white truck came in and left. Later, a large "white van type truck" backed up to the warehouse door and began unloading its cargo. The deputy sheriff was familiar with marijuana bales from earlier investigations and these "appeared to be bales of marijuana being off-loaded and put into the Coastal Sign warehouse."

When the white van left he radioed Deputy Sheriff Groover and advised him "to stop the truck . . . see if they would give us permission to search the truck, if not we would get a search warrant." Deputy Groover saw the truck approach and he fell in behind for a short distance and then pulled them over. Deputy Dasher had already radioed him that "they were unloading marijuana" at the Coastal Sign warehouse. Defendant Cave was driving and one of the other defendants was a passenger. He asked Cave for his driver's license. It was a Florida license and Cave "talked like he was a foreigner." It was noted that the truck had dual wheels.

Deputy Groover asked defendant Cave if he would mind opening up the doors to the back of the truck. Defendant Cave hesitated and Groover stated: " . . . I told him if he didn't want to open the truck that I would get a search warrant to open it." Cave produced the keys and unlocked the rear door. The remaining three defendants were inside. All five defendants were placed in the rear of the patrol car and deputy Groover saw "marijuana seeds" and "strings from burlap bags" in the back of the truck. He entered the truck and found three loaded pistols.

With the combined knowledge that the white van truck with dual wheels, had been intercepted headed east on I-95, toward the coast, and that the driver spoke with a foreign accent and had a Florida driver's license, all deputy sheriffs began looking for dual wheel tracks leading from the highway to the coastal area. Deputy Stagmeier, after checking several coastal locations, found dual wheel tracks leading toward "Sunbury" and called the GBI agent in charge of the investigation. When the GBI agent arrived they followed the dual wheel tracks to "Morgan's Dock" where they observed approximately eight boats. It was then between 5 and 5:30 a. m. in the morning. The police located a Don Drake on the boat "High Noon." They talked to him about what he had seen and then took a statement from him that he had talked to two people who said they "planned to . . . bring in some stuff." One of them called Miami and then they took on about 1,000 gallons of fuel, but did not take any ice, aboard the shrimp boat Miss Carol J and departed. After the Carol J returned one man stated "that we are going to deal tonight between 7:30 and 8:00 p. m." That evening one of them drove up in his grey and burgandy Thunderbird and then a red and white truck arrived and finally a creme colored Ford van truck arrived. Four armed "spanish or mexican" males got out of the last truck and they began to unload "bales wrapped in 'krocker' sacks from the hold in the Carol J and load them on" the trucks. Drake stated that he went on the Carol J "and saw several bales still in the hold." A justice of the peace came to the dock area, swore the affiants, then issued the search warrants for the Carol J and the Coastal Sign warehouse. He did not participate in the subsequent search. A search of the Carol J revealed 162 bales of marijuana, approximately two tons, in two of the three holds of the ship. A search of the Coastal Sign warehouse turned up 403 bales of marijuana. The defendant appeal their conviction. Held :

1. The defendants enumerate but one error that the trial court erred in denying their motion to suppress the evidence which they contend "was obtained as the direct result of a series of illegal searches and seizures conducted without probable cause." However, they subdivide this enumeration into five separate claims.

A. It is urged that there was a lack of probable cause to search the defendant's truck. This enumeration does not face the principle issue: "Was the search of the truck legal?" We find that it was, as there was a valid consent and probable cause existed to make the search.

Warrantless searches of motor vehicles have always been based on different criteria than those of an individual's home. The principal basis has been the mobility of the auto makes it impractical to immediately secure a warrant. Carroll v. United States, 267 U.S. 132, 153-154, 45 S.Ct. 280, 69 L.Ed. 543. Less stringent requirements govern search of motor vehicles because the expectation of privacy in one's auto is significantly less than in one's home. South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 49 L.Ed.2d 1000. However, there are other exceptions to the warrant requirement: 1. consent, 2. incident to lawful arrest, and 3. probable cause with exigent circumstances. United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59.

In the instant case the police officials observed from neutral ground (across the road) the developments that aroused their suspicion. A trained police officer, with previous experience in investigations involving bales of marijuana, saw what he thought to be bales of marijuana being unloaded from a white van type truck. This is a sufficient basis for probable cause to stop and search the truck for evidence of residue of marijuana, for as the term implies in dealing with probable cause the police officer deals with probabilities. Sanders v. State, 235 Ga. 425, 440, 219 S.E.2d 768; Kiriaze v. State, 147 Ga.App. 832, 833, 250 S.E.2d 568.

It is not determinative that the officer himself thought that he did not have probable cause to search. Probable cause is not to be determined by law enforcement officials but a neutral, detached magistrate. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. The defendant may be anxious to accord undue weight to this officer's opinion that he did not have probable cause, but if a police officer's opinion was controlling, it is doubtful that any searches in the future would ever be found unreasonable as law enforcement officials almost always appear to believe they have probable cause to search.

The criterion is whether, at that moment, the facts and circumstances within his knowledge and of which he had reasonably trustworthy information, including information from other police officers (Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 28 L.Ed.2d 306), were sufficient to warrant a prudent person in believing the defendants had or were committing an offense. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142. We find that there was probable cause.

Secondly, a valid consent search was established. No one could seriously contest the conclusion that suspicious activities were taking place at a late hour in a formerly closed warehouse involving a person with a known criminal background. A Terry -type stop was authorized because of the founded and articulable suspicion that the defendants possessed contraband. Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612. The officer testified: "I asked him if he minded opening the truck up or the back of the truck, that I wanted to see in the back of the truck. Q. Okay, what did he say? A. He hesitated and then I told him if he didn't want to open the truck that I would get a search warrant to open it . . . He reached in his pocket pulled out a key and unlocked the door . . ."

Consent searches are valid (Davis v. United States, 328 U.S. 582, 583, 66 S.Ct. 1256, 90 L.Ed. 1453) but where the state relies upon consent, the burden is upon them to demonstrate that the consent was voluntary, and not the result of duress or coercion, express or implied. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854. Voluntariness must be determined from all of the circumstances. Brand v. State, 129 Ga.App. 747, 748, 201 S.E.2d 180. The record discloses the officer did not draw his pistol, or use threatening or coercive language. He made a statement of fact, in essence: "Consent, or I will get a search warrant." Probable cause existed for the issuance of such a warrant and we see no obstacle to the procurement of a valid search warrant if one had been required. Where the statement is made that the subject can consent or a search warrant will be procured, if true, this does not amount to duress or coercion as would invalidate the subsequent search. Bailey v. State, 147 Ga.App. 621, 622, 249 S.E.2d 675; Code v. State, 234 Ga. 90 (III), 214 S.E.2d 873; see also Guest v. State, 230 Ga. 569, 571, 198 S.E.2d 158. "(T)he trial judge was authorized to find that the consent was not the product of coercion, duress or deceit." Code v. State, 234 Ga. 90, 95, 214...