Dawson v. State, A99A0230.

• Decision Date: 26 May 1999
• Docket Number: No. A99A0230.,A99A0230.
• Citation: 518 S.E.2d 477,238 Ga. App. 263
• Parties: DAWSON v. The STATE.
• Court: Georgia Court of Appeals

518 S.E.2d 477

238 Ga. App. 263

DAWSON v. The STATE.

No. A99A0230.

Court of Appeals of Georgia.

May 26, 1999.

Certiorari Denied October 15, 1999.

Lloyd D. Murray, Pembroke, for appellant.

Dupont K. Cheney, District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.

RUFFIN, Judge.

Neil Dawson was convicted of possession of cocaine with the intent to distribute. He appeals the denial of his motion to suppress evidence arising from the search of his automobile, arguing that the State did not have probable cause for the search. We affirm.

On appeal of a trial court's ruling on a motion to suppress, we are guided by three principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment.

(Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994).

Officer Michael Albritton of the Richmond Hill Police Department testified that, on September 27, 1996, he saw a white Cadillac traveling southbound on I-95. Albritton activated his radar gun, which showed that the car was traveling at 76 miles per hour, well over the 55 mile per hour speed limit. Albritton stopped the car, which was being driven by Dawson, and asked Dawson to get out of the car and produce his driver's license and proof of insurance. Dawson exited the vehicle and handed Albritton his driver's license, explaining that his insurance card was in the glove box. Dawson told Albritton that one of his co-workers was a passenger in the car. Albritton then approached the passenger door to speak with the passenger, Cosmo Thomas, and to get the insurance card from the glove box. As Thomas rolled down the passenger window, Albritton detected a strong odor of burnt marijuana coming from the interior of the car. Albritton testified that he was familiar with the smell of marijuana from his experience as a police officer and from his military training.

Albritton asked Dawson to move the vehicle to a less exposed position off the interstate, and wrote Dawson a ticket for speeding. Albritton then retrieved his drug dog, Jessica, from his patrol car and had Jessica perform a free-air search around the exterior of Dawson's vehicle. Jessica alerted on the right rear door of the car, indicating the presence of narcotics. Albritton asked Dawson if he would consent to a search of his car for drugs. After initially indicating that he would consent, Dawson refused to sign a consent form produced by Albritton. However, after Albritton informed Dawson that he had probable cause to search the vehicle even if Dawson refused, Dawson consented to a search and executed the consent form.

Albritton then had Jessica search the interior of the car, and she alerted on a briefcase in the rear passenger area. Albritton opened the briefcase and found two plastic bags, each one containing several smaller bags of a white powdery substance that appeared to be cocaine. Albritton also found a green leafy substance that appeared to be marijuana on the rear portion of the seat.

Dawson moved to suppress evidence resulting from the search, arguing (1) that his consent was not voluntarily given, and (2) that the drug dog's alerts did not provide probable cause to search the vehicle because the State did not prove the dog's reliability. The trial court denied the motion on both grounds.¹

1. We have previously held that a drug dog's alert on a vehicle gives an officer probable cause to believe that contraband is present therein. Milan v. State, 228 Ga.App. 310, 311, 491 S.E.2d 401 (1997); Roundtree v. State, 213 Ga.App. 793, 794-795, 446 S.E.2d 204 (1994); Donner v. State, 191 Ga.App. 58, 60, 380 S.E.2d 732 (1989). However, Dawson contends that the alert in this case was not, in and of itself, sufficient to establish probable cause because the drug dog was not shown to be reliable.

As an initial matter, Dawson is mistaken in focusing solely on the drug dog's alert as providing the basis for a finding of probable cause. As we stated in State v. Gilman, 218 Ga.App. 895, 897, 463 S.E.2d 720 (1995),

the existence of probable cause is determined by whether, "given all the circumstances..., including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, [462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ].

"[P]robable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances." (Punctuation omitted.) Howie v. State, 218 Ga.App. 45, 46(1), 459 S.E.2d 179 (1995). In addition to the drug dog's alert, there was evidence that Officer Albritton detected a strong odor of burnt marijuana from inside the vehicle. In reviewing the trial court's denial of Dawson's motion to suppress, we consider whether the totality of the circumstances, and not merely the drug dog's alert, supports a finding of probable cause. See O'Keefe v. State, 189 Ga.App. 519, 526-527(3), 376 S.E.2d 406 (1988) (regardless of whether odor of burning marijuana by itself supplies probable cause for search, it may be considered in totality of circumstances); Holmes v. State, 163 Ga.App. 753, 755(1), 294 S.E.2d 719 (1982) (trooper's detection of odor of marijuana, together with totality of circumstances, sufficient to provide probable cause); Johnson v. State, 230 Ga.App. 535, 538, 496 S.E.2d 785 (1998) (drug dog's alert, together with totality of circumstances, sufficient to provide probable cause).

Although we are aware of no Georgia cases directly on point, several federal cases have discussed what evidence must be shown of a drug dog's reliability in order to find probable cause based on the dog's alert. In United States v. Daniel, 982 F.2d 146, 151-152 & n. 7 (5th Cir.1993), the Fifth Circuit held that, if it is shown that a dog is trained to detect the presence of controlled substances, it is not necessary to show how reliable the dog has been in the past in order to uphold the issuance of a search warrant based on the dog's alert. The Fifth Circuit applied this ruling to warrantless searches in United States v. Williams, 69 F.3d 27, 28 (5th Cir. 1995), holding that, "[b]ecause a showing of the dog's reliability is unnecessary with regard to obtaining a search warrant, a fortiori, a showing of the dog's reliability is not required if probable cause is developed on site as a result of a dog sniff of a vehicle."

The Sixth Circuit has held that "[f]or a positive dog reaction to support a determination of probable cause, the training and reliability of the dog must be established." United States v. Diaz, 25 F.3d 392, 394 (6th Cir.1994). However, that Court did not define the quantum of evidence necessary to establish a drug dog's reliability, stating that

[w]hen the evidence presented, whether testimony from the dog's trainer or records of the dog's training, establishes that the dog is generally certified as a drug detection dog, any other evidence, including the testimony of other experts, that may detract from the reliability of the dog's performance properly goes to the "credibility" of the dog. Lack of additional evidence, such as documentation of the exact course of training, similarly would affect the dog's credibility. As with the admissibility of evidence generally, the admissibility of evidence regarding a dog's training and reliability is committed to the trial court's sound discretion.

Id. Thus, under Diaz, evidence that a dog is certified as a drug detection dog essentially constitutes prima facie evidence of the dog's reliability. Although the dog's "credibility" may be undermined by evidence of its lack of training or past unreliability, the ultimate determination as to whether the dog is sufficiently reliable to support a determination of probable cause is for the trial court as the trier of fact.

The Sixth Circuit has subsequently held that

[a] positive reaction by a properly trained narcotics dog can establish probable cause for the presence of controlled substances. United States v. Diaz, [supra]. However, for such a reaction to support a determination of probable cause, the training and reliability of the dog must be established.

United States v. Berry, 90 F.3d 148, 153 (6th Cir.1996). However, the Court in Berry indicated that evidence that the dog has been trained as a drug detection dog is sufficient to establish its reliability:

We find that the information contained in the affidavit [supporting

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