O'Keefe v. State

• Citation: 189 Ga.App. 519,376 S.E.2d 406
• Decision Date: 18 November 1988
• Docket Number: No. 77574,77574
• Parties: O'KEEFE v. The STATE.
• Court: Georgia Court of Appeals

Page 406

376 S.E.2d 406

189 Ga.App. 519

O'KEEFE v. The STATE.

No. 77574.

Court of Appeals of Georgia.

Nov. 18, 1988.

Rehearing Denied Dec. 5, 1988.

Certiorari Denied Jan. 19, 1989.

Minor, Bell & Neal, Rick L. Brown, Dalton, for appellant.

Jack O. Partain III, Dist. Atty., Steven M. Harrison, Asst. Dist. Atty., for appellee.

BIRDSONG, Chief Judge.

The appellant, Donald J. O'Keefe, brings this appeal from his conviction for trafficking in marijuana. On the evening of October 21, 1986, Deputy Sheriffs Brooks Lansing and Jimmy Howell, members of the Whitfield County DUI Task Force, were observing northbound traffic on I-75, when Lansing saw O'Keefe's vehicle come by their location and he thought the car crossed over the centerline. Howell saw O'Keefe's car cross over the line on the right side as it was going around the curve. Howell testified that he told Lansing: "I believe we need to go check that one. I believe it's a DUI." The officers followed O'Keefe's car and saw it cross over the centerline twice. Howell stated: "all of a sudden he just swerved over one lane and back in the other lane; and we actually thought that Mr. O' Keefe was driving like he'd been drinking...." As Lansing left his car, O'Keefe exited his vehicle hollering: "4-1 New York." Officer Lansing did not understand what O'Keefe was saying and asked him if he was going to New York and O'Keefe explained that he was telling him the score of the World Series.

Lansing testified that O'Keefe "was very nervous. He kept fidgeting around.... He was waving his arms somewhat as he was talking.... As Officer Howell approached the car, he got even more nervous. I later walked up to the car, and we smelled some type of odor. I could not determine whether it was alcohol or not. It was a strange odor. I really never had any contact with it before." They asked O'Keefe where he was going and he could not give them a location other than outside of Chattanooga to a town he did not know the name of--but was near a military academy. Howell observed that "[t]here were too many suspicious things about him and the car." He saw tire-tools and clothes in the back seat, "it just seemed out of the way." Officer Howell smelled the strange odor and thought it might be alcohol. They gave O'Keefe an "Alco-Sensor" test and it was "zero/zero." O'Keefe was placed under arrest for improper lane usage and was told they were going to take him to the Correctional Center and he could make bond there. Lansing said that at first O'Keefe refused and requested that he be given a ticket right then. They asked for permission to search his car and he refused. Another officer had been called and arrived on the scene. The officers directed O'Keefe to follow them to the Correctional Center. When they were leaving the scene, Officer Lansing called the radio dispatcher to have a drug dog at the Center to search around the car.

It took the officers approximately 15 minutes to arrive at the Correctional Center. Officer Howell took O'Keefe into the rear portion of the jail and realized that he did not have his ticket book and had to go to his car to get it. When he returned, he made out the ticket and turned O'Keefe over to the Booking Officer. The Booking Department as a practice takes a bond from the offender and turns him over to the Identification Section. The officer in charge of ID said she was on the phone, long-distance, when O'Keefe came in; after she finished her call, she started processing O'Keefe. Because the trial judge requires a "history" of a traffic offender in cases brought before him, a personal history statement was taken, then a photograph, and finally O'Keefe was fingerprinted. She testified this was routine procedure for minor traffic violators who were non-residents. Officer Howell testified that after he made out the traffic ticket and turned O'Keefe over to Booking, he walked out of the building and was told that the drug dog had alerted on O'Keefe's car.

Officer Lansing was assisted in making out his affidavit and making a request for a search warrant. A magistrate was called to the Correctional Center and swore the officers, heard the evidence, and issued a search warrant for O'Keefe's car. Officer Howell served O'Keefe, who was still in the Center, with the warrant. He took O'Keefe's keys, opened the trunk of the car, and nine pillowcases full of a leafy green material was discovered. Subsequent examination identified the substance as marijuana. O'Keefe appeals from his conviction before the judge without a jury. Held:

1. Appellant alleges the initial stop of the appellant's car was "a pretextual stop based upon an impermissible 'drug courier profile.' " Evidence was introduced to show that the Federal Drug Enforcement Administration had initiated a plan called "Operation Pipeline" and sponsored a seminar in Georgia which was attended by law enforcement personnel. The purpose of the operation was to deploy trained and reinforced patrols along I-75 and I-95 in Georgia specifically targeting drug and narcotics "mules" transporting drugs from Florida to northern distribution points. A drug courier profile was formulated and included such characteristics as northbound cars with Florida license plates, particularly those with rental plates (bearing the letter "Z"). Another characteristic was to look at the back seat of the car for items usually carried in the trunk. Officers were told not to stop a car solely on the use of this profile. In Georgia, the State Patrol initiated "Operation Nighthawk" to perform surveillance on I-75 and I-95. Officers Lansing and Howell had attended a lecture given by Trooper Mickey Little of the Georgia State Patrol on the drug courier profile for automobiles. The record of Trooper Little was admitted in evidence to show that after he attended a seminar on Operation Pipeline by the DEA, his percentage of Florida cars stopped for traffic violations increased dramatically. Appellant introduced evidence to show that Officers Lansing and Howell stopped three cars on the evening of October 21. All three cars had Florida license plates.

Officer Lansing stated that his primary purpose of being on patrol that evening was DUI, not drug interdiction. Although he saw the Florida tag before he stopped the vehicle, it was a traffic stop. The trial judge questioned Lansing on whether O'Keefe was stopped for a traffic offense, or because of any kind of profile or characteristics of a drug courier and he responded: "That was the reason of the initial stop, yes sir, was the Improper Lane Usage." But the officer admitted he did not forget about the drug courier profile, and when he saw the Florida tag, the nervousness of the driver, the "junk" in the rear seat of his vehicle, his inability to tell them where he was going, and smelled the strange odor emanating from the car, he decided that he would have the car "sniffed" by a drug dog.

Howell admitted he was concerned when pulling over cars for traffic offenses when they had a Florida tag, because "somebody carrying quite a large bit of Cocaine or marijuana, there's a possibility they could be armed and dangerous." However, he was a member of the DUI Task Force, he was on DUI patrol and their primary purpose that night was "DUIs ... not drug interdiction.... We actually felt like he was a DUI."

Hence, there was evidence that both officers had been trained in Operation Nighthawk and use of the drug courier profile for cars. But both officers denied using the profile to stop O'Keefe's car. Instead, they testified that the initial impetus to follow the car resulted from his crossing the traffic lanes and after following O'Keefe for one and one-half to two miles and observing him "swerve" over the centerline once and cross it twice, they "felt like he was a DUI." The stop of O'Keefe's vehicle was authorized if the officers saw a traffic offense committed in their presence. Hartley v. State, 159 Ga.App. 157, 158, 282 S.E.2d 684; Kilgore v. State, 158 Ga.App. 55(1), 279 S.E.2d 239. The evidence was sufficient for a rational trier of fact to find that the appellant committed the offense of improper lane usage beyond a reasonable doubt. Eisenberger v. State, 177 Ga.App. 673, 674(1), 340 S.E.2d 232. At issue is whether the officer's testimony was credible or whether the circumstantial evidence as to the drug courier profile predominated.

"On appeal from the denial of a motion to suppress evidence obtained through a search that the defendant contends was illegal, 'the trial court's decision on questions of fact and credibility ... must be accepted unless clearly erroneous.' " State v. Harris, 246 Ga. 759(1), 272 S.E.2d 719. The trial court's findings of fact and credibility are not clearly erroneous. This enumeration is without merit.

2. It is alleged that it was error to deny the motion to suppress "since no reasonable or articulable suspicion existed for such detention" of the appellant and his automobile. We have found no illegal detention of appellant or his automobile. The initial stop was made because of observation of a traffic offense committed by O'Keefe. Officers Lansing and Howell testified as to their routine procedure in stopping and arresting out-of-state drivers for traffic offenses. Both officers said that they routinely took out-of-state offenders to the Correctional Center, booked them, let them post bond, and released them. Officer Lansing testified that "department policy dictates that anytime an out-of-state motorist is written a citation in Whitfield County he is to be issued the citation there at the Center ... he will post a cash bond there, or have a property signed--bond signed by a bondsman; and then [is] free to leave there from the Center." (Emphasis supplied.) This policy was given to him by "a superior officer." Officer Howell said the only reason for taking O'Keefe to the Correctional Center was to require him to post bond. He always wrote the ticket at the...