DiSanti v. State, 77836

• Decision Date: 15 February 1989
• Docket Number: No. 77836,77836
• Parties: DiSANTI v. The STATE.
• Court: Georgia Court of Appeals

Page 729

378 S.E.2d 729

190 Ga.App. 331

DiSANTI v. The STATE.

No. 77836.

Court of Appeals of Georgia.

Feb. 15, 1989.

Bailey & Bearden, J. Lane Bearden, Calhoun, Donald F. Samuel, Atlanta, for appellant.

Darrell E. Wilson, Dist. Atty., for appellee.

BIRDSONG, Judge.

Appellant Joseph DiSanti appeals his conviction of trafficking in cocaine and his sentence.

At approximately 11:27 p.m., June 27, 1987, Trooper James Ralston stopped a vehicle driven by appellant for speeding 64 m.p.h. on I-75 in a 55 m.p.h. speed zone. At Ralston's request, appellant produced his Pennsylvania driver's license. Appellant returned to the car and retrieved documents showing his wife's ownership of the Pennsylvania registered vehicle since June 22. At that time, Ralston observed a newspaper from Erie, Pennsylvania, on the right rear floorboard. It was dated Friday, the 26th. Appellant and Ralston engaged in conversation regarding appellant's trip. Ralston asserts he became suspicious that appellant might have contraband in the car. However, he elected to issue appellant a warning ticket for the speeding offense. Before issuing the warning ticket, Ralston decided to ask appellant to consent to a search of his vehicle.

Ralston testified that his suspicions in part were based on his police experience and the following factors. Appellant said he had been visiting friends, the DiPasquals, in Florida, for a couple of days, but the newspaper from Erie in his car was dated the day earlier. The vehicle was purchased recently; and, appellant was driving it to Florida to test it out, as well as to visit his friends with whom he could not have spent much time. The tape shows appellant mentioned being in the Fort Lauderdale area. Appellant now was on his way to Cleveland, Ohio. Thus, appellant was going from a known drug source area to a major city known for narcotics problems. Appellant was traveling alone and at night. He had left his wife and three children at home with a station wagon. Appellant appeared nervous. He said he owned a tavern and weekends normally are a busy business period for taverns.

At approximately 11:40 to 11:42 p.m., Ralston issued appellant a warning ticket; he had decided not to arrest him for the speeding offense. Ralston returned appellant's driver's license and ownership documents to him. At that point appellant was free to leave, although Ralston did not inform him of this fact.

Shortly after 11:43 p.m., Ralston asked appellant if he would consent to a vehicle search. Appellant verbally consented to the search, after expressing certain strong reservations, including the assertion that nothing was in the car. Appellant reached inside his vehicle and obtained his car keys. Ralston requested appellant to sign a vehicle consent to search form, which he gave to the appellant to read. Appellant appeared to read the form, and questioned the legality of the written consent procedure. The form advised appellant that he could refuse to consent to search. Appellant continued to question the procedure, and approximately two minutes later Ralston orally advised appellant that he need not consent. Ralston also advised appellant that normally people who do not have anything to hide will consent. Appellant refused to sign the form; however, after being advised of his right of refusal, he did not attempt expressly to withdraw his previous oral consent to search.

Less than four minutes from the time he was first requested to consent orally to search, appellant, without being requested to do so, proceeded to unlock the trunk of his car. Ralston observed a suitcase or small bag of clothing in the car and a package wrapped in birthday paper. Appellant appeared to have a limited amount of clothing, enough clothing for a couple of days if that much. Trooper Ralston asked if he could pick up the package, and appellant consented, handing the package to Ralston. Appellant stated that the package was a gift from friends to his daughter and that he did not know its contents. Ralston told appellant that he believed the package felt like it contained cocaine. He based his belief on the weight of the package. Trooper Ralston asked if he could open the package, and appellant refused permission. Appellant retrieved the package, placed it in the trunk, and shut the trunk lid. Ralston believed at that point appellant had revoked his consent to search, and from that moment on, he considered that appellant was no longer free to go. Appellant became more nervous than before and evasive in his answers. He said Ellen DiPasqual had given him the present for his daughter and that he did not know what was in it. Appellant gave Ralston the DiPasqual's phone number. Ralston subsequently advised him around midnight that he was being detained until the drug dog arrived and the information about the package was checked out.

Trooper Ralston continued his investigation. He determined that the DiPasqual phone number had been called and no one answered. From 11:55 p.m. to 12:20 a.m., information was relayed to him from a phone conversation with appellant's wife. Ralston was informed that Mrs. DiSanti stated initially that her husband was in Virginia, and that he had left home on Friday morning after she went to the doctor. When asked about the DiPasquals, she said they had known them for seven or eight years, and that appellant was in Tallahassee with Mrs. DiPasqual visiting the latter's husband who was in prison. Mrs. DiSanti also said appellant was supposed to go to Virginia after leaving Tallahassee. At about 12:20 a.m., Ralston received information from his EPIC check that in 1982 appellant had been arrested for possession of one kilo of cocaine and that he also had a previous rape charge which had been dropped. At about 12:21 a.m., appellant indicated that he wanted to leave to go to the bathroom, but he was not allowed to depart the area. Trooper Ralston had requested a narcotics dog when he initially ran the EPIC check; the dog handler was on a traffic stop at...