Green v. State

• Decision Date: 16 January 1990
• Docket Number: No. A89A2326,A89A2326
• Parties: GREEN v. The STATE.
• Court: Georgia Court of Appeals

Page 285

390 S.E.2d 285

194 Ga.App. 343

GREEN v. The STATE.

No. A89A2326.

Court of Appeals of Georgia.

Jan. 16, 1990.

Rehearing Denied Jan. 29, 1990.

Certiorari Granted March 8, 1990.

John M. Beauchamp & Associates, Kermit S. Dorough, Jr., Albany, for appellant.

Britt R. Priddy, Dist. Atty., Henry O. Jones III, Asst. Dist. Atty., for appellee.

BANKE, Presiding Judge.

On May 31, 1989, while on patrol in an area of Albany regarded by them as a "heavy drug activity area," two plainclothes police officers observed the appellant engaged in conduct which they associated with drug dealing. Upon seeing the officers, the appellant turned to walk away from them, making an apparent dropping gesture with his hand as he did so. The officers thereupon confronted him and during routine questioning learned that he was on probation. They then caused him to be transported to the police station, where, pursuant to the terms and conditions of his probation, he was directed to produce a urine specimen for chemical analysis. Based on the results of the tests performed on the specimen, which revealed the presence of cocaine metabolites in the appellant's system, the state both filed a petition to revoke his probation and procured an indictment charging him with possession of cocaine. The present appeal is from the appellant's conviction and sentence on the cocaine possession charge.

The appellant has disclosed in his brief filed in support of this appeal that he "stipulated" during the probation revocation proceedings "to the violation of May 31, 1989," following which he was "sentenced" to serve 90 days in jail for violating his probation. However, it does not appear that any such stipulation was made or brought to the attention of the jury during the trial of the present case. Consequently, the appellant's conviction on the cocaine possession charge rests solely on the urinalysis results revealing the presence of cocaine metabolites in his system. Held:

1. " 'The presence of cocaine in a defendant's bodily fluids is considered to be direct positive evidence of possession of cocaine. (Cit.)' [Cits.] Accordingly, there was sufficient evidence produced at trial to authorize any rational trier of fact to find appellant guilty beyond a reasonable doubt of possession of cocaine. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Stevens v. State, 165 Ga.App. 814, 815(1), 302 S.E.2d 724 (1983)." Buffington v. State, 190 Ga.App. 365(1), 378 S.E.2d 884 (1989).

2. The appellant contends that his Fourth Amendment rights were violated by the invocation of the mandatory conditions of his probation to obtain a urine sample for use as evidence against him in an independent criminal prosecution. We disagree.

The appellant was prohibited under the terms of his probation from utilizing any controlled substance except pursuant to a physician's prescription; and he was required to produce "from time to time upon oral or written request by any probation supervisor, or by any city, county or state law enforcement officer, ... a breath, spittle, urine, and/or blood specimen for analysis for the possible presence of" such substances. In Smith v. State, 250 Ga. 438, 439, 298 S.E.2d 482 (1983), the Georgia Supreme Court held that "[t]he requirement that a probationer, upon request, produce body fluid for analysis is reasonable as an aid in determining compliance with the prohibition upon the use of controlled substances." Cf. Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), and Luke v. State, 178 Ga.App. 614(2), 344 S.E.2d 452 (1986) (upholding the validity of an analogous requirement authorizing warrantless searches of the probationers' homes). While conceding that a probationer may lawfully be required to produce bodily fluid specimens for chemical analysis upon the request of a probation officer engaged in the routine performance of his duties, the appellant contends that where, as in the present case, other law enforcement officials are permitted to make such requests, the potential for police harassment becomes so great as to invalidate the condition. However, the Georgia Supreme Court rejected such an argument in Smith, supra, holding that where "the request for urinalysis ... arose out of [the defendant's] probationary status, and was made by a local law enforcement officer, in the county where he had been convicted, with the express intention of monitoring his compliance with the terms of his probation," no ground for reversal existed. Id., 250 Ga. at 440, 298 S.E.2d 482.

Although the request for urinalysis at issue in the present case was not made as a routine incident of the probation supervision process, as was the case in Smith, supra, it is apparent without dispute from the record that it was prompted by a good-faith suspicion, arising from routine police investigative work, that the appellant was dealing in drugs, rather than by a desire to harass him. We are unwilling to hold that the request was violative of the appellant's Fourth Amendment rights under these circumstances merely because the test results were subsequently used as evidence against him in an independent criminal prosecution as well as for probation revocation purposes. Accordingly, we hold that the appellant's motion to suppress the test results was properly denied.

3. The appellant contends that his production of the urine specimen was also violative of his Fifth Amendment right against self-incrimination because the request for it was not preceded by the Miranda warnings and because refusal to comply would itself have been punishable as a violation of his probation. However, it is well settled that the production of bodily fluid samples is not communicative or testimonial in nature and thus does not implicate a defendant's privilege against self-incrimination. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (holding that a DUI suspect's privilege against self-incrimination was not violated by the extraction of a blood sample without his consent); South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (holding that a DUI defendant's due process rights were not violated by the introduction of evidence that he had refused to take a blood-alcohol test, although police had failed to warn him that such a refusal could be used against him in this manner). Cf. United States v. Euge, 444 U.S. 707, 100 S.Ct. 874, 63 L.Ed.2d 141 (1980) (rejecting a Fifth Amendment challenge to the compulsion of a handwriting exemplar); United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (rejecting a Fifth Amendment challenge to the compulsion of a voice exemplar). Based on these authorities, we hold that the production of the urine specimen at issue in this case did not result in any violation of the appellant's Fifth Amendment rights.

4. The appellant contends that the trial court erred in "disregarding" his request for funds to obtain an expert "qualified to testify as to the fallible operation of the machines utilized to examine the urine specimen provided by [him] and to conduct an independent evaluation of the substance." However, though the appellant filed an application seeking to obtain such funds, the record does not reflect that he made any attempt to elicit a ruling on the...