O'Donnell v. State

• Decision Date: 16 July 1991
• Docket Number: No. A91A0407,A91A0407
• Citation: 200 Ga.App. 829,409 S.E.2d 579
• Parties: O'DONNELL v. The STATE.
• Court: Georgia Court of Appeals

Page 579

409 S.E.2d 579

200 Ga.App. 829

O'DONNELL v. The STATE.

No. A91A0407.

Court of Appeals of Georgia.

July 16, 1991.

Reconsideration Denied July 31, 1991.

Certiorari Denied Sept. 6, 1991.

Cook & Palmour, Bobby Lee Cook, Summerville, Bailey & Bearden, J. Lane Bearden, Calhoun, for appellant.

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

BIRDSONG, Presiding Judge.

Frank Patrick O'Donnell appeals his conviction of the offense of trafficking in cocaine.

At approximately 1:00 a.m. on March 24, 1990, while conducting a routine patrol of the rest area on northbound Interstate 75 just south of Calhoun, Georgia, Georgia State Patrol Trooper, Michael J. Ralston, observed appellant's vehicle, a Ford Bronco with Illinois license plates, parked in the rest area. Trooper Ralston noticed the Bronco several more times throughout the early morning hours, always in the same parking place. At about 6:45 a.m. when Trooper Ralston returned to the rest area to assist a "deputy" on an unrelated matter, he again noticed the vehicle and decided to check on the occupant or occupants in the vehicle to determine their "well-being." Trooper Ralston looked in the window of the Bronco and observed appellant asleep in the rear seat of the vehicle. He tapped on the window until appellant sat up and rolled down the window, at which time Trooper Ralston explained that he wanted to be sure appellant was physically well because in the past there had been people who had heart attacks, became ill, or had carbon monoxide poisoning. After satisfying himself that appellant was all right, Trooper Ralston asked appellant if he would mind providing him with identification. After appellant provided Trooper Ralston with his Indiana driver's license, Trooper Ralston inquired if appellant owned the vehicle, and upon finding that he did not, requested to see the vehicle's registration. The registration showed that the vehicle was registered to Plaza Limousine Service in Chicago. Trooper Ralston explained to appellant that due to prior occurrences involving stolen vehicles, he would have to investigate further to determine whether appellant had lawful possession of the Bronco. Appellant told the trooper that the vehicle belonged to his friend Roger Sticken, the owner of Plaza Limousine Service, and that Sticken had allowed appellant to borrow the vehicle for a couple of weeks while on vacation. The trooper requested and appellant provided a number in Florida where Sticken could be reached. After Trooper Ralston repositioned his patrol car perpendicular to the rear of appellant's vehicle, but in a manner so appellant's vehicle could be backed out if needed, the trooper attempted to have his dispatcher reach the registered owner of the vehicle. When the dispatcher called the telephone number provided by appellant, Sticken was not home and only his answering machine responded. Because appellant did not know the number of Plaza Limousine Service in Chicago, Trooper Ralston had the dispatcher call Chicago telephone information for the number of the company; and, although the 1990 Yellow Pages for Chicago did have an advertisement for the company, Trooper Ralston testified that the information operator was unable to find a listing for Plaza Limousine Service. The investigation continued for approximately 20 minutes during which time the trooper retained appellant's driver's license and the vehicle registration. While Trooper Ralston was waiting for the results of the check, he allowed appellant to use the restroom, although the transcript indicates the "deputy" who had remained in the rest area was asked to inform Ralston when appellant "came out" of the restroom so that appellant could not walk up behind Ralston undetected. Construing the evidence of record and drawing all reasonable inferences therefrom to support the verdict, it appears appellant was allowed to visit the rest room unaccompanied.

When appellant came back from the rest room, Trooper Ralston returned his license and the vehicle registration. Although appellant was not then informed that he was free to go, neither did he ever ask or attempt to leave the area. Appellant was asked for his consent to search the vehicle, which he agreed to verbally and in writing. Approximately 23 minutes had lapsed from the time Trooper Ralston first made contact with appellant until the time the consent form was presented and signed.

During the search, Trooper Ralston found 1,995 grams of cocaine in the left rear quarter panel of the vehicle. Appellant claims he had no knowledge of the cocaine. Held:

1. In considering the legality of a search, this court can consider all relevant evidence of record, including that adduced at the suppression hearing as well as at trial. Jones v. State, 187 Ga.App. 421, 422-423, 370 S.E.2d 784. We first consider appellant's argument that he was "seized" at the time Trooper Ralston requested and retained his license and vehicle registration after the trooper had ascertained that appellant was physically well. "In determining whether a given contact between a police officer and a citizen violated a defendant's Fourth Amendment rights, the court must first determine whether the encounter was a 'seizure' within the meaning of the Fourth Amendment. See United States v. Mendenhall, 446 U.S. 544, 553 (100 SC 1870, 1876, 64 LE2d 497) (1980) (Stewart, J.) (with Rehnquist, J., concurring). The Fourth Amendment's proscription against unreasonable searches and seizures governs all seizures of the person, 'including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, 394 U.S. 721 [89 S.Ct. 1394, 22 L.Ed.2d 676] (1969); Terry v. Ohio, 392 U.S. 1, 16-19 [88 S.Ct. 1868 [1877-1879], 20 L.Ed.2d 889] (1968).' United States v. Brignoni-Ponce, 422 U.S. 873, 878 (95 SC 2574 [2578], 45 LE2d 607). 'The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but "to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals." (Cit.)' United States v. Mendenhall, supra [446 U.S.] at 553-554 . In distinguishing between an intrusion amounting to a 'seizure' of the person and an encounter that intrudes upon no constitutionally protected interest, we adopt that standard proposed by Justice Stewart in United States v. Mendenhall, supra at 554 : '(A) person has been "seized" within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' " Moran v. State, 170 Ga.App. 837, 839-840, 318 S.E.2d 716.

"In other words, the 'Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, brief "seizures" that must be supported by reasonable suspicion, and full-scale arrests that must be supported by probable cause. (Cits.)' [Cit.] Factors determinative of whether or not an intrusion or 'seizure' has occurred 'include [but is not limited to] the lack of interference with the individual's progress, ascertaining whether the individual is willing to cooperate with police before making further inquiries, no display of official authority beyond a statement that the person stopping the individual is a law enforcement officer, and conducting the encounter in an appropriately deferential manner to avoid causing the individual ... anxiety and fear....' [Cit.]" Allen v. State, 172 Ga.App. 663, 665, 324 S.E.2d 521.

In the present case, we conclude that the initial approach of Trooper Ralston to the vehicle and his subsequent inquiry as to the appellant's well-being did not constitute a Fourth Amendment seizure. At most there was a police-citizen verbal encounter involving no coercion or detention within the meaning of Verhoeff v. State, 184 Ga.App. 501, 503(2), 362 S.E.2d 85.

The record conclusively establishes that appellant was not initially stopped and detained by Trooper Ralston for any purpose whatever. Appellant was stopped of his own volition, and was found lying in the back seat area of a parked car. Rather than detaining appellant in any fashion, Trooper Ralston merely approached the stationary appellant to inquire as to his physical well-being. After ascertaining appellant was not in the throes of a medical emergency, Trooper Ralston asked if appellant would "mind" presenting identification; appellant voluntarily cooperated by presenting his Indiana driver's license. We find that under the attendant circumstances this routine-type traffic inquiry was not arbitrary, harassing, or coercive. And considering appellant had voluntarily stopped in a public rest area, parked, and laid down in the vehicle late at night, causing Trooper Ralston to have a legitimate concern primarily regarding his medical status but also because signs prohibiting overnight parking in the rest area apparently were being ignored, it was not unreasonable within the meaning of the Fourth Amendment for Trooper Ralston thereafter to initiate promptly a routine and limited inquiry to determine appellant's identity. In the case at bar, appellant was not detained and his movement impaired; rather, appellant was merely approached while voluntarily stopped and, after his safety was ascertained, appellant was asked routine identification questions in a minimally intrusive manner, which the record reflects he answered readily and without protest. In such circumstances, the validity of an officer's initiated investigative or protective conduct is determined in each case " '[b]y balancing the extent of the intrusion against the immediacy and importance of the interest in crime prevention or law enforcement which is sought to be advanced.' " See Arena v. State, 194 Ga.App. 883, 886(1), 392 S.E.2d 264....