Morris v. State

• Decision Date: 01 July 1999
• Docket Number: No. A99A0695.,A99A0695.
• Parties: MORRIS v. The STATE.
• Court: Georgia Court of Appeals

520 S.E.2d 485

239 Ga. App. 100

MORRIS v. The STATE.

No. A99A0695.

Court of Appeals of Georgia.

July 1, 1999.

Reconsideration Denied July 14, 1999.

Certiorari Denied October 29, 1999.

Virgil L. Brown & Associates, Virgil L. Brown, Zebulon, Russell B. Mabrey, Jr., Macon, Eric D. Hearn, Bentley C. Adams III, Zebulon, Larkin M. Lee, Jackson, for appellant.

Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee. McMURRAY, Presiding Judge.

Defendant William R. Morris was tried before a jury and found guilty of a single count of violating the Georgia Controlled Substances Act by possessing cocaine. Viewed in the light most favorable to the verdict, the evidence adduced at trial revealed that, after a traffic stop and during a weapons pat-down of defendant's person, defendant consented to a search of the contents of his shirt pocket. There, police found a match box containing three small plastic bags of cocaine. Defendant's motion for new trial was denied, and this appeal followed. Held:

1. Defendant moved to suppress the cocaine found on his person, arguing that the police had no reasonable basis for stopping his vehicle, and that the search of the match box exceeded the justifiable scope of a weapons pat-down as authorized by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. In two related enumerations, defendant assigns error to the denial of that motion.

Where the evidence is uncontradicted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to the undisputed facts is subject to de novo appellate review. State v. Hall, 229 Ga.App. 194-195(1), 493 S.E.2d 718. At the suppression hearing, the only witnesses were Deputies Brad White and Chris Webster of the Lamar County Sheriff's Office. Their uncontradicted testimony authorized the following facts:

On Friday, July 18, 1997, between 2:30 and 3:00 a.m., Deputies White and Webster were dispatched to The Hot Spot, a convenience store in Barnesville, Georgia, on Highway 341 North. The Hot Spot closes on Thursday evenings-Friday mornings "between the hours of two [a.m.] and 4 [a.m.]." The deputies were responding to a complaint from one of the cashiers that a man driving a black pickup truck was "outside beating on the [front] door trying to get in. She [the cashier] was scared, so she wanted a deputy to go check him out and see what the problem was." It took the deputies four or five minutes to arrive from the jail. It was "totally dark." All the "outside lights were off. It [the store] was clearly closed." The deputies saw "a black truck leaving from the front of the store." Specifically, as they approached, they saw the black truck "backing away from the door. It backed up and started past the gas pumps. By the time [the deputies] got in the parking lot and got behind it, it was towards the lower end of the parking lot," but had not yet exited the lot. There were no other vehicles in sight. The deputies initiated a traffic stop, halting the truck while it was still in the convenience store parking lot. Other than the cashier's complaint, the deputies had no independent basis for stopping this vehicle.

Deputy White spoke with the driver, defendant, while Deputy Webster spoke with the cashier. Defendant explained "he was trying to get bread." While asking defendant for his license and proof of insurance, Deputy White "detected an odor of alcohol on [defendant's] breath," and detained defendant for "just a roadside evaluation [with] the Alcosensor." When defendant exited the truck, Deputy White patted defendant down for weapons. Deputy Webster "patted [defendant's] shirt pocket because [the officer] noticed it had a bulge in it." Defendant said it was a pack of matches. When Deputy Webster inquired whether defendant minded if the deputy examined the matches, defendant said "no, go ahead." Deputy Webster "handed it to Deputy White and continued to pat [defendant] down. Shortly after, Deputy White advised [Deputy Webster] to place [defendant] under arrest." Inside the match box, Deputy Webster "found three clear, plastic bags containing a white powdery substance" that subsequently testified positive for cocaine.

(a) Even though defendant appears somewhat unsteady on his feet, the videotape of this traffic stop corroborates the consensual nature of the search yielding the cocaine 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 [Deputies White and Webster were] authorized to stop defendant's vehicle and approach, the consent is not invalid.

McDaniel v. State, 227 Ga.App. 364, 365-366(2), 489 S.E.2d 112 (whole court). Thus, defendant's argument that the search of his match box exceeded the bounds of a Terry-type frisk for weapons simply is not germane to the lawfulness of that consensual search. Hunter v. State, 190 Ga.App. 52-53(1), 378 S.E.2d 338.

(b) In our view, the articulated ground for stopping defendant's vehicle in the parking lot was neither arbitrary nor harassing but was specific and reasonable under the totality of the circumstances.

A police officer is authorized to make a brief, but nevertheless forcible, investigatory detention of an individual where the intrusion can be justified by specific, articulable facts giving rise to a reasonable suspicion that the person stopped has been, is, or is about to be engaged in criminal activity. United States v. Place, 462 U.S. 696, 702(II), 103 S.Ct. 2637, 77 L.Ed.2d 110. What is demanded of the police officer, as the agent of the State, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing. Brisbane v. State, 233 Ga. 339, 341, 211 S.E.2d 294.

In the case sub judice, the frightened cashier reported conduct arguably amounting to disorderly conduct in violation of OCGA § 16-11-39(a). It is not necessary that reasonable cause for a stop and frisk be based only upon an officer's personal observation, rather than information supplied by another person. Graves v. State, 138 Ga. App. 327, 328, 226 S.E.2d 131, citing Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612. A concerned citizen or victim of a crime is accorded a presumption of credibility. Sayers v. State, 226 Ga.App. 645, 646-647, 487 S.E.2d 437; Hinson v. State, 229 Ga.App. 840, 842 (1), (c), 494 S.E.2d 693, rev'd on other grounds, State v. Hinson, 269 Ga. 862, 506 S.E.2d 870. When the police arrived at the closed convenience store minutes after the late-night complaint, they found only a black pickup as mentioned by the cashier, with no other vehicles in sight. Since

defendant's [black pickup truck, the only vehicle in sight,] "roughly fit the description given [by the complaining citizen], 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 supra]; Brisbane v. State, 233 Ga. 339[, 211 S.E.2d 294 supra]." McGhee v. State, 253 Ga. 278, 279(1), 319 S.E.2d 836.

McDaniel v. State, 227 Ga.App. at 366(2), 489 S.E.2d 112, supra. Neither the Fourth Amendment nor Art. I, Sec. I, Par. XIII of the 1983 Georgia Constitution requires a policeman who lacks the precise level of information necessary for probable cause simply to shrug his shoulders and allow a crime to occur or a criminal suspect to escape. On the contrary, Terry, supra, recognizes that it may be the essence of good police work to adopt an intermediate response. A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be the most reasonable in light of the facts known to the officer at the time. Graves v. State, 138 Ga.App. at 328, 226 S.E.2d 131, supra. See also State v. Carter, 240 Ga. 518, 242 S.E.2d 28. That reasonable and brief, intermediary detention to establish identity and maintain the status quo is precisely what occurred in this instance. The trial court correctly denied defendant's motion to suppress made on the ground that the traffic stop was unauthorized.

2. Proof that defendant carried a match box on his person containing cocaine was sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 to authorize the jury's verdict that defendant is guilty, beyond a reasonable doubt, of violating the Georgia Controlled Substances Act as alleged in the accusation. Reeves v. State, 194 Ga.App. 539, 540(2), 391 S.E.2d 35.

3. The trial court granted the State's motion in limine to show the jury only that portion of the videotape of defendant's arrest that depicted the initial stop, search, and the discovery of cocaine. Defendant contends the court erroneously excluded the remainder of the tape, which depicted the search of a passenger and defendant's booking at the jail. He does not, however, adequately explain the relevancy of these events to the issues to be tried.

As a general rule, the admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Hood v. State, 216 Ga.App. 106, 108(4), 453 S.E.2d 128. In particular, questions of relevancy are generally matters within the trial court's discretion, and it is not error to exclude evidence that is not related to an issue at trial. Sleeth v. State, 197 Ga.App. 349, 350(3), 398 S.E.2d 298. In our view, the trial court did not abuse its broad discretion in excluding the remainder of the videotape as irrelevant.

4. Defendant...