Manley v. State, A95A0186

• Decision Date: 07 June 1995
• Docket Number: No. A95A0186,A95A0186
• Citation: 458 S.E.2d 179,217 Ga.App. 556
• Parties: MANLEY v. STATE of Georgia.
• Court: Georgia Court of Appeals

Page 179

458 S.E.2d 179

217 Ga.App. 556

MANLEY v. STATE of Georgia.

No. A95A0186.

Court of Appeals of Georgia.

June 7, 1995.

John T. Strauss, Covington, for appellant.

Alan A. Cook, Dist. Atty., Covington, Gary D. Bergman, Thomas W. Hayes, Smyrna, for appellee.

McMURRAY, Presiding Judge.

This appeal is taken from a judgment in favor of the State in a civil forfeiture action. The action stemmed from the arrest of Charles Manley for violation of the Georgia Controlled Substances Act. This appeal by Manley alleges numerous errors by the trial court, all in the following general areas: (1) his arrest was invalid; (2) law enforcement officers were on his property illegally when marijuana was discovered and the arrest made; (3) seizure of certain of Manley's personal property was unjustified; and (4) failing to find that he "had a right to trial by jury with respect to the present forfeiture action."

Roy Morris, a conservation sergeant with the Department of Natural Resources, was checking various hunting sites for violations of the hunting laws. On one tract, the sergeant detected a strong odor of marijuana and came upon a marijuana field. Morris left the property and returned later in the day with additional law enforcement officers to destroy the marijuana. While pulling up marijuana stalks and taking them to his vehicle, he heard the sound of a truck approaching. He ran toward the truck, which rapidly backed up. Morris, who was in uniform, got into his marked vehicle and pursued the truck, using his blue lights and siren. The truck pulled over, and Manley exited the vehicle. Twist ties consistent with those seen securing the marijuana plants were found on Manley's person and in his truck. Held:

1. Defendant contends the trial court erred in finding that there was probable cause for his arrest. The defendant asserts the State had neither probable cause nor articulable suspicion to justify a stop of his vehicle.

"Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction.... Flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search." (Citations and punctuation omitted.) State v. Billoups, 191 Ga.App. 834, 835, 383 S.E.2d 198. The officer was in close proximity to the marijuana field when defendant's vehicle approached, and access to the field was limited by a locked cable. At that particular moment, the police may have had only articulable suspicion to justify a Terry stop of the defendant. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889.

However, it matured into probable cause for arrest when the officer observed the ties hanging out of defendant's pocket and in the back of his truck which were consistent with those seen tying the marijuana to the supporting stakes. Also, fresh tire tracks found near the parking place of the conservation vehicle prior to the chase suggested that Manley had been in a position to see that it was a marked law enforcement vehicle he was attempting to flee. Thus, there was probable cause for Manley's arrest. The conservation officer did not lack authority to stop or arrest Manley. OCGA § 27-1-20(a)(10); Smith v. State, 204 Ga.App. 576(1), 420 S.E.2d 29. This and additional enumerations of error premised upon the supposition that the arrest of Manley was illegal are without merit.

2. Defendant contends that law enforcement officers should not have been allowed entry onto his posted property, and that said entry constituted trespass and invalidated any forfeiture action. He specifically asserts that the posting of no-trespassing signs and no-hunting signs created a zone of privacy in which entry by anyone was forbidden. "[I]n Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 68 L.Ed. 898, the United States Supreme Court held that even if the law enforcement agents had trespassed onto privately owned land an illegal search and seizure did not occur, because the special protection accorded by the Fourth Amendment to the people in their ' "persons, houses, papers, and effects" ' is not extended to the open fields." Perry v. State, 204 Ga.App. 643(2), 645, 419 S.E.2d 922. See also Mattingly v. State, 205 Ga.App. 777(1), 423 S.E.2d 709 and Thomas v. State, 203 Ga.App. 529, 531(2), 533-534, 417 S.E.2d 353. Also, the conservation officer did not lack authority to go upon the property. OCGA § 27-1-20(a)(6).

3. Manley contends that there was insufficient evidence to justify the seizure of his 1973 Chevrolet pickup truck, including a rifle and rifle accessories therein, his 1969 Chevrolet Camaro, $469 cash, and Mettler digital scales.

Manley asserts that he was on the property checking deerstands and sighting his rifle, and that the wire ties found in his possession were for securing camouflage covering on a deerstand. However, the testimony revealed that Manley was in his 1973 Chevrolet pickup truck when he tried to flee from Morris, that a rifle and accessories were in the cab of the truck, and that in the back of the truck were pull-ties consistent with those used in the care and cultivation of the marijuana plants located on the property. Under OCGA § 16-13-49(d)(2), property that is used in any manner to facilitate a violation of the Georgia Controlled...