Fritzius v. State

• Decision Date: 21 March 1997
• Docket Number: No. A96A1667,A96A1667
• Citation: 484 S.E.2d 743,225 Ga.App. 642
• Parties: , 97 FCDR 1703 FRITZIUS v. The STATE.
• Court: Georgia Court of Appeals

Page 743

484 S.E.2d 743

225 Ga.App. 642, 97 FCDR 1703

FRITZIUS v. The STATE.

No. A96A1667.

Court of Appeals of Georgia.

March 21, 1997.

Billy J. Dixon, Jonesboro, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

BIRDSONG, Presiding Judge.

After a stipulated bench trial, Fritzius was convicted on one count of possession of methamphetamine, a Schedule II controlled substance (OCGA §§ 16-13-26(3)(B); 16-13-30(a)), and one count of possession of a firearm during the commission of a crime (OCGA § 16-11-106(b)(4)). He appeals from the denial of his motion to suppress evidence seized in what he contends was an illegal search, violative of the Fourth Amendment to the United States Constitution and of Art. I, Sec. I, Par. XIII of the Constitution of the State of Georgia. He makes no independent argument on the state constitutional grounds, so we do not address that issue. Null v. State, 216 Ga.App. 641, 642, 455 S.E.2d 359.

Officer Beveridge, in uniform and accompanied by his drug detection dog, was preparing to participate with a police narcotics unit in executing a search warrant on a mobile home occupied by Henry Fallaw. Another officer who was conducting surveillance of the mobile home saw two men leave it, enter a vehicle and drive off. Officer Beveridge was asked merely to identify the occupants of the vehicle to see if one was Fallaw. While the search was conducted, the officer stopped the car approximately two miles away.

He requested the driver's license and proof of insurance, which the driver said he did not have because he had lost his wallet. The driver, who actually was Henry Fallaw, also said he believed he did have a valid license and gave the officer the name and birth date of his brother William. Beveridge noticed Fallaw was nervous and asked if he had any illegal weapons or drugs on his person. Fallaw first said no, then admitted he had two marijuana cigarettes in his back pocket. Beveridge took those and placed Fallaw under arrest.

Passenger Fritzius exited the vehicle at Beveridge's direction. He told the officer he had no illegal drugs or weapons on his person and consented to a search, which produced nothing. The car was registered to Fritzius, and he refused the officer's request for consent to search its interior. The officer brought the drug detection dog from his car and directed him to do an odor search of the car's exterior. The dog alerted to the vehicle's door, and a small plastic bag containing methamphetamine was found under the floor mat on the passenger's side where Fritzius had been sitting. A revolver was found under Fritzius' seat.

Fritzius contends the vehicle stop was invalid because it was not supported by reasonable, articulable suspicion as required under Terry v. Ohio, 392 U.S. 1, 23, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968). He does not complain independently of Beveridge's actions after the stop. Our analysis commences according to the following guide, derived from pronouncements of the United States Supreme Court. " 'Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action--a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. (Cit.)' [Cit.]" State v. McFarland, 201 Ga.App. 495, 496, 411 S.E.2d 314. A Terry stop " 'must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. [Cits.]' " Tarwid v. State, 184 Ga.App. 853, 854(1), 363 S.E.2d 63.

Fritzius does not dispute that the search warrant for the mobile home was based upon probable cause to believe drug activity took place there. The warrant was about to be executed when the vehicle and its occupants left. Fritzius contends Beveridge had no suspicion the vehicle's occupants were engaged in drug activity but only stopped the car to identify the occupants. Beveridge testified he stopped the vehicle because it had just left the mobile home and another officer asked him to find out if Fallaw, who was named in the warrant, was in the car. Additionally, the record reveals a certain stipulation of facts which purports on its face to contain matters beyond that already in evidence. Held:

When a person is leaving a premises which is about to be searched pursuant to a warrant, a brief, momentary detention by law enforcement personnel is permitted when supported by articulable suspicion or probable cause. Michigan v. Summers, 452 U.S. 692, 699-700, 101 S.Ct. 2587, 2592, 69 L.Ed.2d 340. In Summers, a warrant had been obtained to search a house for narcotics. As the officers approached the house, they encountered owner Summers descending the front steps. They asked for his assistance in gaining entry and detained him while they searched the premises. In deciding the detention was supported by articulable suspicion, the Court examined both the character of the intrusion on Summers' liberty and personal security, and the justification for the intrusion. Id. at 700-701, 101 S.Ct. at 2593-2594. As to the character, the Court noted that the detention was less intrusive than the search pursuant to the warrant, and that the fact that the detention occurred at the residence "add[ed] only minimally to the public stigma associated with the search itself." Id. at 701-702, 101 S.Ct. at 2594. As to the justification for detention, the Court noted the interest in preventing flight if any contraband was found, the interest in reducing the risk of harm to officers involved in the search, and the interest in facilitating the search by the resident's presence. Id. at 702-703, 101 S.Ct. at 2594. It also noted that a magistrate had found there was probable cause to believe someone in the residence was committing a crime, providing another

"objective justification for the detention." Id. at 703, 101 S.Ct. at 2594.

"On reviewing a trial court's ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court's findings on disputed facts and credibility must be accepted unless clearly erroneous. [Cit.]" Burse v. State, 209 Ga.App. 276, 433 S.E.2d 386. The Court found as fact, inter alia, that the vehicle was stopped because the police expected one occupant to be the resident of the search premises. The record does not reveal that this finding of fact is clearly erroneous within the meaning of Burse, supra.

It is a well-established appellate rule that on appeal the evidence must be viewed in the light most favorable to support the verdict. Grant v. State, 195 Ga.App. 463, 464(1), 393 S.E.2d 737. Thus, in determining whether the State met its burden of proof that the search and resulting seizure were legal, this Court must view the evidence of record in accordance with the dictates of Grant, supra. In determining the legality of a search, this Court can consider all evidence of record, including that found in pretrial, trial and post-trial proceedings. Bonds v. State, 188 Ga.App. 135, 372 S.E.2d 448; accord Underwood v. State, 218 Ga.App. 530(1), 462 S.E.2d 434.

Review of the record in the light most favorable to supporting the verdict reveals that appellant consented to a stipulated bench trial and to these resulting stipulation of facts: "The car was stopped in Clayton County.... Some of this is already in evidence. But it was stopped by Agent Beveridge as he received information that the defendant and the co-defendant who were driving in this defendant's car were leaving a location for which they had a search warrant for drugs." (Emphasis supplied.) The record reveals this stipulation of fact, which on its face professed to contain facts beyond those already in evidence, establishes that the detaining officer had received information before the stop that the occupants in the car had been observed leaving the search scene. Moreover, at the suppression hearing the detaining officer testified that he was aware not only that the search warrant was issued for a specific trailer lot location but also that the subject of the warrant was co-defendant Henry Calhoun Fallaw (who later was determined to be a co-occupant of the detained vehicle), and that he was to stop the departing vehicle to see if the co-defendant was an occupant thereof.

The dissent has interpreted the dictates of the United States Supreme Court in Michigan v. Summers, supra, in too restrictive a manner. The Supreme Court clearly held in Summers, supra at 703-705, 101 S.Ct. at 2594-2596: "The existence of a search warrant, however, also provides an objective justification for the detention. A judicial officer has determined that police have probable cause to believe that someone in the home is committing a crime. Thus a neutral [and detached] magistrate rather than an officer in the field has made the critical determination that the police should be given a special authorization to thrust themselves into the privacy of a home. The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant.... If the evidence that a citizen's residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen's privacy is justified, it is constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search his home. Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable...