McDaniel v. State

• Decision Date: 15 July 1997
• Docket Number: No. A97A0847,A97A0847
• Citation: 489 S.E.2d 112,227 Ga.App. 364
• Parties: , 97 FCDR 2793 McDANIEL v. The STATE.
• Court: Georgia Court of Appeals

Page 112

489 S.E.2d 112

227 Ga.App. 364, 97 FCDR 2793

McDANIEL v. The STATE.

No. A97A0847.

Court of Appeals of Georgia.

July 15, 1997.

Emmett J. Arnold IV, Jonesboro, for appellant.

Robert E. Keller, District Attorney, Lisa S. Estes, Assistant District Attorney, for appellee.

McMURRAY, Presiding Judge.

During an investigative traffic stop, defendant Christopher McDaniel consented to a search of his vehicle and person, where the police officer found marijuana, cocaine, and stolen goods. Defendant's combined motion to suppress/motion in limine was denied. After a bench trial, defendant was found guilty of two counts of violating the Georgia Controlled Substances Act for possession of cocaine and possession of less than one ounce of marijuana, and further found guilty of entering an automobile with the intent to commit a theft. The question on appeal is whether the officer, who had observed no suspicious conduct, could properly stop the vehicle based on a "be on the lookout" dispatch which, unbeknownst to the officer, had been revoked. We hold the stop was authorized under the circumstances of this case and affirm the convictions.

Only Officer Monteau and Officer Hudson testified at defendant's suppression hearing. Their evidence would authorize the following findings of fact: Just before midnight on April 16, 1996, Officer Monteau of the Clayton County Police Department was dispatched to the Brookstone Ridge Apartments, where a tenant reported that he had twice seen the occupants of a white Isuzu Rodeo suspiciously looking into the tenant's parked Jeep Cherokee. The first time, "he saw a white Isuzu Rodeo and a silver Isuzu Rodeo driving through his apartment complex, and both vehicles had stopped by his [the tenant's] Jeep Cherokee and the occupants had took a look at it...." At 2:34 a.m., Officer Monteau witnessed two such vehicles leaving the adjoining Garden Walk Apartments. The white Isuzu Rodeo had a "Bob Davis drive out tag...." The silver Rodeo's driver slammed on his brakes, turned his lights off, and put the vehicle in reverse while the white Rodeo sped off in another direction. Suddenly the silver Rodeo sped out of the apartment complex at a high rate of speed, and Officer Monteau followed. The silver Rodeo then turned into the next apartment complex, but because of a security gate, returned immediately to the highway. Based on this suspicious conduct, Officer Monteau radioed his dispatcher to contact the neighboring Riverdale Police Department to be on the lookout for a possible stolen silver Rodeo with a certain tag number. Officer Monteau turned on his blue flashing lights and stopped the silver Rodeo. Joined by another officer from his police force, Officer Monteau questioned and frisked the driver, defendant McDaniel, and the other occupants. Defendant would not consent to a vehicle search. Determining that the Rodeo was not stolen and finding nothing amiss, Officer Monteau allowed them to leave and informed his dispatcher of the results of the stop. The dispatcher's duty was to pass this information on to the Riverdale police.

Officer Lee Hudson of the Riverdale Police Department "receive[d] a lookout over [his] radio[, for two] Isuzu Troopers or Rodeo type vehicles, one silver and one white, ... believed ... to be stolen vehicles or one of them to be stolen." Acting on the original lookout and unaware of the previous traffic stop by Officer Monteau, Officer Hudson pulled the same Rodeo over, roughly an hour after Officer Monteau had released it. Upon speaking with defendant, Officer Hudson "could smell heavy marijuana smoke inside the vehicle." Officer Hudson asked for defendant's consent to search the vehicle. Defendant "said yes, and stepped out of the car. As he stepped out of the car, [Officer Hudson saw] on the floorboard ... a partial marijuana cigarette and one in the ashtray." Officer Hudson obtained a "separate consent to search [defendant's] body," at which time Officer Hudson found three bags of suspected cocaine in defendant's left front pocket. Officer Hudson "noticed several pieces of shattered glass from a vehicle window in the floorboard carpet. A further search found several Freaknik type tee-shirts. [Officer Hudson] then radioed to Clayton County Unit 324[, i.e., Officer Monteau,]" to "check the Garden Walk Boulevard area where he saw the vehicles to see if there had been any vehicles entered in that area." Officer Monteau did not inform Officer Hudson of the results of his previous stop of defendant's vehicle. Held:

1. In his first enumeration of error, defendant claims that Officer Monteau lacked an articulable suspicion to make the initial stop. We disagree.

When defendant first saw Officer Monteau, he slammed on his brakes, turned off his headlights, and immediately put his vehicle in reverse. Defendant raced away, unsuccessfully trying to enter a secure complex before abruptly speeding off again. These odd and evasive circumstances created a reasonable suspicion of criminal activity to permit a limited investigative stop of the vehicle. Stanley v. State, 191 Ga.App. 603, 604(2), 382 S.E.2d 686. " '[D]eliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea.' [Cit.]" State v. Webb, 193 Ga.App. 2, 4(1), 386 S.E.2d 891. See also Burgeson v. State, 267 Ga. 102, 105(3)(a), 475 S.E.2d 580 ("Flight can be a significant factor in determining probable cause.").

2. In his second and third enumerations, defendant contends Officer Hudson lacked any reasonable, articulable suspicion to stop his vehicle after he had been released by Officer Monteau.

In the case sub judice, defendant consented to the search of his vehicle and person, yielding the tangible items (marijuana cigarettes, cocaine, and stolen tee shirts) sought to be suppressed. " 'Once a voluntary consent is legally obtained, it continues until it either is revoked or withdrawn. (Cits.)' Mallarino v. State, 190 Ga.App. 398, 403(2), 379 S.E.2d 210 (1989). ' "A valid consent eliminates the need for either probable cause or a search warrant. (Cit.)" ' Wright v. State, 189 Ga.App. 441, 444(1), 375 S.E.2d 895 (1988)." Boggs v. State, 194 Ga.App. 264, 390 S.E.2d 423. If Officer Hudson was authorized to stop defendant's vehicle and approach, the consent to search is not invalid.

When the police received a call to be on the lookout for a possibly stolen car, and defendant's car "roughly fit the description given for the lookout, this provided the basis for an articulable suspicion justifying the stop. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Brisbane v. State, 233 Ga. 339, 211 S.E.2d 294 (1974)." McGhee v. State, 253 Ga. 278, 279(1), 319 S.E.2d 836. We conclude the stop of defendant's stop was lawful, even though based on a revoked "be-on-the-lookout" dispatch, where that revocation preceded the stop by but one hour and such revocation had not yet been communicated to the arresting officer. Specifically, the Riverdale officer's momentary detention of defendant's vehicle was reasonable despite being based on another jurisdiction's (Clayton County's) recalled dispatch, where the recall of that dispatch one hour earlier was not seasonably communicated.

The existence of a reasonable suspicion to stop a moving vehicle, like " '[t]he existence of probable cause [to arrest] must be "measured by current knowledge, i.e., at the moment the [stop or] arrest is made and not hindsight. (Cit.)" (Cit.)' Jackson v. State, 191 Ga.App. 439, 441(2), 382 S.E.2d 177 (1989)." Harvey v. State, 266 Ga. 671, 673, 469 S.E.2d 176. "Although in [stopping defendant's silver Rodeo with the specified tag number in the case sub judice], the [Riverdale] officer relied upon the [initial report of the Clayton County officer], he [Riverdale officer] neither knew, nor could be reasonably expected to have known, that the information [of a possible stolen vehicle] was incorrect when he made the arrest. The [articulated suspicion], which [had just been recently] proven wrong, was stale by [less than an hour]. This Court, in hindsight, [ought] not declare [an otherwise reasonable traffic stop] to be invalid when the [detaining] officer reasonably relied upon [an articulated ground] which he had no reason to [suspect] was incorrect. [Cits.]" Harvey v. State, 266 Ga. supra at 673, 469 S.E.2d 176. It follows that the Riverdale officer was justified in approaching defendant's car, where he detected the distinctive aroma of marijuana. See, e.g., Galbreath v. State, 213 Ga.App. 80, 82(2), 443 S.E.2d 664. The trial court correctly denied defendant's motion to suppress and that ruling is affirmed.

The dissent's reliance on State v. Stringer, 258 Ga. 605, 372 S.E.2d 426, is misplaced. In Stringer, that defendant was arrested on a 21-month-old bench warrant for two misdemeanor charges, even though that bench warrant had been recalled. The trial court's suppression of Stringer's custodial statement was affirmed by the Supreme Court of Georgia, which reasoned that the "documented collective knowledge and negligence of the law-enforcement department must be imputed to the officer executing the [recalled] bench warrant. [Cits.]" 258 Ga. supra at 607, 372 S.E.2d 426. Like the Supreme Court in Harvey, we conclude that "State v. Stringer, supra, is not authority for a contrary holding." 266 Ga. supra at 673, 469 S.E.2d 176. "Probable cause for an arrest[, like reasonable suspicion to detain,] does not depend on, and is an entirely separate question from, the existence of a valid bench warrant and its reasonable execution. [Cit.]" Harvey v. State, 266 Ga.. supra at 673, 469 S.E.2d 176.

Judgment affirmed.

ANDREWS, C.J., BIRDSONG, P.J., and ELDRIDGE, J., concur.

BEASLEY, SMITH and RUFFIN, JJ., dissent.

BEASLEY, Judge, dissenting.

I concur in Division 1 but dissent with respect to Division 2. In it we focus on McDaniel's motions to suppress the evidence found by Officer Hudson and...