Holley v. State, 61202

• Decision Date: 11 March 1981
• Docket Number: No. 61202,61202
• Citation: 157 Ga.App. 863,278 S.E.2d 738
• Parties: HOLLEY v. The STATE.
• Court: Georgia Court of Appeals

Page 738

278 S.E.2d 738

157 Ga.App. 863

HOLLEY v. The STATE.

No. 61202.

Court of Appeals of Georgia.

March 11, 1981.

Certiorari Denied April 16, 1981.

Clyde M. Taylor, Jr., Tallahassee, Fla., Roger J. Dodd, Valdosta, Ronald A. Dion, North Miami, Fla., for appellant.

H. Lamar Cole, Dist. Atty., for appellee.

BIRDSONG, Judge.

Ernie R. Holley was convicted of three violations of the Georgia Controlled Substances Act (possession of cocaine, more than 100 pounds of marijuana, and possession of methaqualone) as well as wilfully damaging government property. He was sentenced to serve three concurrent ten-year sentences for the drug violations, plus a five-year consecutive sentence for the damage to state property, and fined $10,000 pursuant to Code Ann. § 79A-811. He brings this appeal enumerating four asserted trial errors. Held :

1. The facts and circumstances giving rise to this criminal trial and appeal show the following. At about 3:00 a. m. on the morning of January 15, 1980, an officer on duty at an agricultural control station in the state of Florida just south of the Georgia line observed a van pass the station without making the necessary stop. The officer pursued the van and stopped it about three miles north of the station but still in the state of Florida. The officer identified the driver as the appellant Holley. Holley was asked to open the back panel doors of the van so that the officer could determine if there was any prohibited agricultural products being transported. Holley voluntarily opened the back doors. The officer at once observed a clear plastic bag in plain view containing what he believed to be marijuana and smelled a faint odor of marijuana. He informed Holley that he would have to remain at the scene until a nearby county deputy sheriff could be summoned. The inspector placed Holley under arrest for bypassing the agricultural station. While the agricultural inspector was reading Holley his Miranda rights, the deputy sheriff arrived. The deputy was shown the bag of marijuana. Before anything further could be done, Holley suddenly seized the pistol belonging to the inspector, and using that weapon secured the weapon of the deputy. The inspector, using the diversion caused by a passing tractor-trailer, managed to escape to summon help. Holley also made his escape, taking the keys of the vehicles of both the deputy's and the inspector's vehicles.

A radio alert (BOLO--Be On Look Out) was made to Georgia authorities informing the Georgia authorities of the bypass of the agricultural station as well as the possession of marijuana and the seizure of the weapons of the two Florida officers. Shortly thereafter, a Georgia State Patrolman observed the van proceeding north on I-75 in Lowndes County. The vehicle was stopped and Holley once again emerged, disclaiming that he had done anything wrong in Florida. By a subterfuge, Holley reentered the van and drove off followed by a covey of police vehicles. A short distance up the highway Holley came to a roadblock and crashed into and through a police vehicle blocking passage. While the van managed to pass the blockade, it suffered a severely damaged radiator and ended up in a ditch in a cloud of steam. Using the steam as cover, Holley and a companion fled the van into some nearby woods. After several hours, Holley and his companion were apprehended. Found in a field was a gun and a brief case (which brief case Holley admitted was his property). The brief case contained another gun, as well as a quantity of cocaine and methaqualone. The van was impounded and a subsequent search of the van disclosed another quantity of methaqualone and 179 pounds of marijuana.

2. In his first enumeration of error, Holley argues that the stop by the Florida agricultural inspector was in violation of applicable Florida statutes in that a recreational vehicle is not required to make a stop at an agricultural inspection station. The argument continues that once the illegality of the initial stop is shown, all subsequent police actions suffer from the taint of that illegality. While we might disagree with the latter contention of continuing taint, we are not required to face that question, for we find the initial stop to be authorized.

It is not disputed that the agricultural inspector was vested with the authority momentarily to detain any vehicle which is required to stop at an inspection station and fails to do so and, where necessary, to arrest the occupants of such a vehicle. It also is clear that recreational vehicles are expressly excepted from the operation of the inspection law. However, the Florida inspector unequivocally testified that when he saw the van pass the inspection station, he believed the van to be a panel type vehicle which commonly is used to transport cargo, a vehicle required to stop for inspection. His testimony was unshaken that he did not become aware that the van was a recreational vehicle until long after the incident when he saw the vehicle or pictures of the vehicle in daylight hours. His avowed purpose was to examine the interior of the van for illegal agricultural products and if he had not seen and smelled the marijuana, the van could have proceeded on its journey. There is no dispute that after the initial stop, Holley voluntarily opened the van and that the officer saw the bag of marijuana in plain view and smelled the odor of the prohibited substance.

Very apropos to this factual situation is this court's holding in the recent case of State v. Misuraca, 157 Ga.App. 361, 276 S.E.2d 679, wherein we held:

"Even though acts of peace officers in detaining and questioning a citizen are necessarily a curtailment of the citizen's right to go about his business unmolested (i. e., a seizure of the person); but more importantly because investigation and questioning are necessary elements of crime prevention and detection, the exigencies of the situation as they reasonably appear at the time to the officer involved must dictate the extent of intrusion into constitutionally protected areas. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 at p. 96, 85 S.Ct. at 228. 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. Brooks v. State, 129 Ga.App. 109, 111, 198 S.E.2d 892.

"The reverse of the above is that the Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest, to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1922, 32 L.Ed.2d 612; Stiggers v. State, 151 Ga.App. 546, 547(1), 260 S.E.2d 413. Under the ... physical observations available to him at the time of the stop, and considering his...