McAdoo v. State, 64375
| Decision Date | 08 September 1982 |
| Docket Number | No. 64375,64375 |
| Citation | 295 S.E.2d 114,164 Ga.App. 23 |
| Parties | McADOO v. The STATE. |
| Court | Georgia Court of Appeals |
Robert F. Coheleach, Clarkston, for appellant.
Steve Lister, Asst. Dist. Atty., Jonesboro, for appellee.
Appellant John Thomas McAdoo appeals from his conviction in the Superior Court of Clayton County of trafficking in cocaine, and mandatory sentence of five years' imprisonment and fine of $50,000 under the Georgia Controlled Substances Act (Code Ann. § 79A-811(j)). We affirm.
The facts as established by the record show that on August 12, 1981 appellant, while deplaning from a flight arriving from Ft. Lauderdale, Florida in Hartsfield Atlanta International Airport, was observed by Paul J. Markonni, senior agent of the airport detail of the federal Drug Enforcement Administration (DEA). Markonni was on duty attempting to identify and apprehend domestic drug couriers and appellant attracted his attention because appellant's behavior was characteristic of many of the indicia of the so-called "drug courier profile." Ft. Lauderdale being a major source for the importation and distribution of narcotics, incoming flights from that city were routinely observed. Markonni noticed appellant because of an exchange of glances and nod of the head between appellant and another passenger who was some distance away. The two appeared to be traveling together but trying to conceal that fact. Watching appellant as he checked in for a connecting flight to Detroit, Markonni saw him tender two tickets and receive two boarding passes from the ticket agent.
Markonni identified himself to the ticket agent and examined the tickets presented by appellant. The tickets were round trip from Detroit to Ft. Lauderdale, paid in cash and issued in the names of Raymond and Jeffrey Cork, and indicated a stay in Ft. Lauderdale of just over eighteen hours. A call back number listed for Ft. Lauderdale was the Airport Holiday Inn, and the room number shown had been rented to John McAdoo of Pontiac, Michigan for two parties. The room bill and charges for four long distance calls to Michigan had been paid in cash. McAdoo, who was dressed in jogging shorts and a tee shirt, did not appear to be traveling for business.
Based on this information and his twelve years' training and experience with DEA, Markonni deduced that appellant warranted further investigation. Markonni, accompanied by another agent who stayed apart and did not speak, approached appellant, presented his credentials, advised him he was a federal officer and asked to speak with him for a minute, to which appellant agreed. Both agents were dressed in casual clothes which hid their weapons. Markonni spoke in a normal conversational tone of voice trying "to attract as little attention to what we do as possible to avoid any kind of scene or disturbance on the concourse." Appellant was not touched and no commands were made or implied. Appellant voluntarily surrendered an envelope containing two passenger copies, two boarding passes and one baggage claim check. Appellant identified himself as John McAdoo, stating that he was traveling with someone else and produced his driver's license upon request. He admitted that his name was not Cork as shown on the tickets, and told Markonni that his companion was named Richard Glover.
At that point Markonni returned appellant's tickets and driver's license and explained that he was a narcotics officer looking for drugs going through the airport. He asked appellant if he were carrying any drugs on his person or in the bag he had checked. When appellant replied in the negative, Markonni told him that the circumstances looked suspicious and asked if he would mind cooperating and allow the agents to search him. Appellant said he would not mind but he was not carrying any drugs or narcotics and would rather be searched some place more private. As the agents led appellant to an empty airline office, he asked to go to the bathroom. Markonni told him to wait just a few minutes because if he were not carrying anything it would be a quick search and then he could do anything he wanted to.
Upon reaching the office, Markonni read appellant his Miranda rights and appellant said that he understood them. Markonni conducted a patdown search; in the area of appellant's lower abdomen inside his shorts he felt a bulge and "could hear plastic when [he] moved [his] thumb back and forth." A plastic bag was removed from appellant's clothing which Markonni suspected contained about two ounces of cocaine, and appellant was placed under arrest. Appellant consented to a search of his suitcase and a small amount of cocaine was also found therein. Appellant did not appear to be under the influence of drugs or alcohol, carried on an intelligent conversation and seemed a person of average intelligence. The entire encounter, from initial approach to arrest, lasted no more than six or seven minutes.
1. Appellant argues that the trial court erred in denying his motion to suppress evidence seized as a result of his illegal detention and search. We do not agree.
The constitutionality of such a stop by an airport DEA agent based upon an "articulable suspicion" that the defendant was carrying illegal narcotics was first considered by this court in State v. Reid, 149 Ga.App. 685, 686, 255 S.E.2d 71, which held that because Reid's behavior fit the drug courier profile compiled by the DEA in a number of respects and he consented to a search after being approached, there was probable cause for the search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. The United States Supreme Court reversed, holding that the evidence was insufficient to justify a "Terry stop." On remand this court merely affirmed the trial court's grant of the motion to suppress without discussion of any seizure question. State v. Reid, 156 Ga.App. 78, 274 S.E.2d 164. This issue was subsequently treated by the Georgia Supreme Court on grant of certiorari in State v. Reid, 247 Ga. 445, 276 S.E.2d 617, cert denied 454 U.S. 883, 102 S.Ct. 369, 70 L.Ed2d 195. Based on U. S. v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497, that court determined that there was "nothing in the record to suggest that the defendant had any objective reason to believe that he was not free to end the conversation and proceed on his way and for that reason we conclude that the agent's initial approach to him was not a seizure." State v. Reid, supra, 247 Ga. p. 450, 276 S.E.2d 617.
If there is no seizure, there is no constitutional violation. The unresolved question now confronting us is what constitutes a seizure. Under Mendenhall, Mendenhall, supra, 446 U.S. at pp. 553-554, 100 S.Ct. at pp. 1877-1878.
In United States v. Berry, 670 F.2d 583 (5th Cir. 1982), a recent case involving strikingly similar facts and the same DEA agent, the Fifth Circuit Court of Appeals sitting en banc examined the issue of whether any airport stop must be held a seizure. The majority observed initially U. S. v. Berry, supra, p. 591.
Adopting the reasoning of Judge Johnson, speaking for the majority in Berry, we will weigh the intrusion on an individual's Fourth Amendment rights against equally important governmental interests in deterring the ever increasing drug smuggling problem. Thus, where airport stops are of "extremely restricted scope and conducted in a non-coercive manner," they will not invoke the Fourth Amendment. Berry, p. 594. No significant intrusion occurs if the law enforcement officer does not forcibly interfere with an individual's progress and ascertains whether the individual is willing to cooperate with police before making any further inquiries.
The question, of course, in no way reaches those situations where the individual approached does not consent to be searched; indeed, neither...
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