Johnson v. State

• Decision Date: 11 February 1998
• Docket Number: No. A97A2034,A97A2034
• Parties: , 98 FCDR 792 JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

Page 785

496 S.E.2d 785

230 Ga.App. 535, 98 FCDR 792

JOHNSON v. The STATE.

No. A97A2034.

Court of Appeals of Georgia.

Feb. 11, 1998.

Word & Simmons, Gerald P. Word, Carrollton, for appellant.

Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Assistant District Attorney, for appellee.

SMITH, Judge.

Willie Gene Johnson was indicted on charges of possession of cocaine with intent to distribute, OCGA § 16-13-30(b), and obstruction of or hindering a law enforcement officer, OCGA § 16-10-24. A jury found Johnson guilty on the cocaine charge but acquitted him on the charge of obstruction. This appeal follows the denial of his motion for a new trial.

The evidence of record shows that on March 11, 1996, Agent Jesse Hambrick, a narcotics investigator assigned to the Coweta Judicial Circuit Drug Task Force, received details of a confidential informant's tip pertaining to Johnson that originally had been given to his fellow investigator, Sergeant Tony Johnson. Hambrick testified that he had arranged with the informant to call Sergeant Johnson should the informant be unable to reach Hambrick. According to Hambrick, the informant had told Sergeant Johnson that Willie Gene Johnson (known as Peek-A-Boo) was in possession of a quantity of crack cocaine stored in a small pill bottle; that Johnson was driving a bluish-green 1980 Dodge van with tag number TJK 346; and that Johnson was currently parked in "The Crack," an area of Villa Rica known for its drug activity. Although the record is unclear as to how the informant received this information about Johnson, Hambrick testified that this same informant had provided reliable information in the past that had led to arrests and/or seizures of drugs on at least three separate occasions during the past six months.

After receiving the details of the tip from Sergeant Johnson, Hambrick dispatched several police officers to the area described by the informant, but they were unable to locate the van. About three to four hours after learning the details of the tip, Hambrick himself then went to the area and saw a van fitting the description sitting in the middle of the street. He saw Johnson, whom he recognized from a previous drug investigation, as well as another passenger inside the van. After Johnson exited the van upon Hambrick's request, the officer patted him down and found no contraband. When Johnson refused to consent to a search of the van, Hambrick told him he would be detained until he could get a search warrant or have a canine perform a free-air search. Johnson was told that although he was not under arrest, he still was not free to leave or approach his vehicle until the investigation was concluded.

A canine unit was called to the scene. While the officers were awaiting its arrival and after Johnson had been told he was being detained, Johnson ran toward his van, opened the passenger's side door, reached in, and tried to grab a brown paper bag in which the cocaine was later found. These acts and a subsequent struggle with several officers led to Johnson's arrest for obstruction of an investigation.

The canine unit arrived approximately 15 minutes after Hambrick's request. A dog performed an air search around the van and indicated on the driver's side door that narcotics were inside the van. The officers then placed the dog inside the van, where in Hambrick's words, the dog began "indicating all over the inside of the vehicle." The van was then searched, and 85 hits of crack cocaine were found packaged in three separate containers, including a small pill bottle, a plastic bag, and a plastic container. The hits of cocaine found in the container were individually packaged in tiny plastic ziplock bags.

1. In his first enumeration of error, Johnson argues the trial court erred by denying his motion to suppress evidence because the officers did not have reasonable suspicion to detain him or probable cause to conduct a warrantless search of his vehicle.

In determining the validity of a search that is deemed valid after a suppression hearing, the trial evidence is also considered. O'Donnell v. State, 200 Ga.App. 829, 830(1), 409 S.E.2d 579 (1991). In addition, " '[a] trial court's order on a motion to suppress will not be disturbed if there is any evidence to support it, and the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous.' [Cit.]" Staley v. State, 224 Ga.App. 806(1), 482 S.E.2d 459 (1997).

Our first step is to consider whether the officers were authorized to conduct the initial investigatory questioning of Johnson based upon the tip they received from the confidential informant earlier that day. The initial stop of Johnson can be described as a Terry-type stop (see Goodman v. State, 210 Ga.App. 369, 370, 436 S.E.2d 85 (1993)), and the standard for such an investigatory stop has been set forth repeatedly. "Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889, 909 (1968)[.] Investigative stops of vehicles are analogous to Terry-stops and are invalid if based upon only unparticularized suspicion or 'hunch[.]' An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination." (Citations and punctuation omitted.) Jorgensen v. State, 207 Ga.App. 545, 546, 428 S.E.2d 440 (1993). " '[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 (1991).

The application of these legal principles to the facts of this case leads us to conclude that Hambrick had a reasonable suspicion sufficient to authorize the brief investigatory stop of Johnson. The Coweta Drug Task Force had received information from a reliable informant that Johnson was in possession of a quantity of cocaine stored in a small pill bottle. The Task Force also had been given the make, model and tag number of the vehicle Johnson was driving along with the location where the van could be found. Further, Hambrick, who was familiar with Johnson from a previous drug investigation, personally observed Johnson just a few hours later inside a van meeting the description provided by the informant and in the location provided by the informant. Assuming without deciding that the...