Harwood v. State, No. A03A1284
| Decision Date | 20 August 2003 |
| Docket Number | No. A03A1284, No. A03A1285. |
| Citation | 262 Ga. App. 818,586 S.E.2d 722 |
| Parties | HARWOOD v. The STATE. McLucas v. The State. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Sexton & Morris, Lee Sexton, Jonesboro, Joseph S. Key, for appellants.
Chalres A. Spahos, Solicitor-General, Gilbert A. Crosby, Asst. Solicitor-General, for appellee.
On March 15, 2002, Andrew John Harwood stopped his car at a police roadblock in Henry County. After a police dog alerted positively for the presence of drugs in the car, the car was searched and marijuana was found inside, as well as on the person of Harwood's passenger, Brandi McLucas. Harwood was charged with DUI of marijuana, and McLucas was charged with possession of marijuana. They moved to suppress the evidence against them, arguing that it resulted from an illegal detention and seizure. After a joint hearing in both cases, the trial court denied their motions. Later, at a stipulated bench trial, the court found both defendants guilty of the charges against them.
In Case No. A03A1284, Harwood appeals the denial of his motion to suppress, and in Case No. A03A1285, McLucas appeals the denial of her motion. Because the appeals present identical issues, we consolidate them. Harwood and McLucas (collectively, defendants) argue that the roadblock was unconstitutional and that the police illegally prolonged their detention. Finding no merit in either argument, we affirm.
1. In reviewing a trial court's ruling on a motion to suppress, we accept the court's findings of fact unless they are clearly erroneous, and we construe the evidence most favorably to uphold the court's ruling.1
Defendants challenge the constitutionality of the roadblock. A police roadblock satisfies the Fourth Amendment if the following criteria are met: (1) the decision to implement the roadblock was made by supervisory personnel at "the programmatic level," rather than officers in the field, for a legitimate primary purpose; (2) all vehicles, rather than random vehicles, are stopped; (3) the delay to motorists is minimal; (4) the roadblock is well identified as a police checkpoint; and (5) the screening officer has adequate training to make an initial determination as to which motorists should be given field sobriety tests.2 Defendants argue that the state failed to show that the first and fourth criteria were met here.
(a) With respect to the first criterion, Sergeant Joseph Tammaro, Jr. of the Henry County Police Department testified that he authorized the roadblock in question, as well as several others that morning, for the purpose of ensuring the safe operation of vehicles on the road. He testified that all officers working at the roadblock were trained in "DUI detection," and many were trained in "standardized field sobriety tests." He further stated that he was the supervisor of the department's traffic enforcement unit; that his authority to implement roadblocks came from the department's policy manual and from his supervisor, who had delegated the task to him; and that he (Tammaro) had authorized more than 100 roadblocks since becoming a sergeant. This testimony established that the roadblock was implemented by a supervisory officer for a proper purpose.3
Defendants argue, however, that there was no competent evidence that Tammaro was authorized to order the roadblock. They contend that Tammaro's statement that he was given authority to implement roadblocks by his supervisor, who did not testify, was inadmissible hearsay. We note that Tammaro testified that his authority to order roadblocks derived not only from his supervisor's delegation, but also from department policy.4 And even if Tammaro's statement that his supervisor gave him authority was hearsay, the issue is not who delegated authority to Tammaro, but whether he in fact had such authority. His uncontradicted testimony that he was a supervising officer authorized to order roadblocks was sufficient to establish that fact. The state was not required to call his supervisor to verify that authority.5
Defendants also argue that Tammaro was not an appropriate official to implement roadblocks because he acted as a field officer as well as a supervisor. Although Tammaro's testimony at the motion hearing suggested that he was present at the roadblock in question, there was no evidence that he screened, searched, or otherwise interacted with any motorists, including defendants. The fact that the officer who ordered the roadblock also attended it does not mean that the roadblock was not implemented at "the programmatic level."6
(b) Defendants also argue that the roadblock was not adequately identified as a police checkpoint.7 The record shows otherwise. Tammaro testified that He also testified that the officers had placed "Click-it or Ticket" signs on their parked cars. Given these identifying markers, "[i]t is highly unlikely that a motorist would have taken the activity to be anything other than a police checkpoint."8 And in fact, neither Harwood nor McLucas testified that they were confused by the roadblock or had trouble identifying it.
Defendants point out that the police did not use orange cones or wear reflective hats, as required by the department's standard operating procedures. But whether the roadblock complied with departmental policy is not dispositive of the question before us— whether it satisfied the constitution.9 We find no authority for the proposition that the Fourth Amendment requires that roadblocks be identified with orange cones and that officers working there wear reflective hats.
(c) Finally, defendants claim that the roadblock was an unconstitutional drug checkpoint. They did not raise this argument before the trial court and therefore have waived it.10 Even if they had not waived the argument, it lacks merit. Tammaro's testimony established that the roadblock had a legitimate primary purpose— vehicle safety checks.11 The presence of a drug dog used to sniff vehicles suspected of containing narcotics did not invalidate the roadblock.12
2. Defendants contend that, even if the roadblock was valid, the police impermissibly prolonged their detention without reasonable suspicion of criminal activity.
Officer Mike Freeman testified that he was a trained canine officer and had his police dog, Falco, at the roadblock. Freeman stated that he was standing "a few feet away" from another police officer, Baker, when Harwood's vehicle stopped at the roadblock. Baker did not testify at the hearing. According to Freeman, however, Freeman then approached Harwood's car and smelled marijuana himself. He retrieved Falco, who alerted positively on both sides of the car. Freeman then searched the car, discovered marijuana inside, arrested McLucas, and found marijuana on her person. Meanwhile, another officer conducted field sobriety tests on Harwood, who was arrested for DUI.
Defendants told a different story. According to Harwood:
I pulled up to the road check and I was asked for my license and insurance. I gave [Baker] my license and insurance. He checked it, handed it back to me, told me to have a nice day. I rolled my windows up. I started to pull off and the officer with the K-9 unit [(Freeman)] was to the right of the vehicle and crossed in front of me and came over to the window and knocked on the window.
After Harwood rolled the window down, Freeman "stuck his head [inside] and did a little sniffing thing and said, `I smell marijuana.'" Harwood testified that Baker did not speak to Freeman before Freeman tapped on the window. Like Harwood, McLucas testified that Baker handed Harwood's license and insurance card back to him, told Harwood he could leave, and then proceeded to the car behind him without talking to Freeman.
Defendants claimed that Freeman's testimony that Baker smelled marijuana was inadmissible hearsay. Without that testimony, defendants maintained, the trial court was required to believe their version of events— that Baker had concluded the stop and released them before Freeman approached the car. In reliance on Faulkner v. State,13 defendants argued that the police could not continue to detain them after...
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