Murphy v. State, A97A1690

• Decision Date: 28 January 1998
• Docket Number: No. A97A1690,A97A1690
• Citation: 230 Ga.App. 365,496 S.E.2d 512
• Parties: , 98 FCDR 603 MURPHY v. The STATE.
• Court: Georgia Court of Appeals

Page 512

496 S.E.2d 512

230 Ga.App. 365, 98 FCDR 603

MURPHY v. The STATE.

No. A97A1690.

Court of Appeals of Georgia.

Jan. 28, 1998.

Garland, Samuel & Loeb, Donald F. Samuel, Atlanta, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

McMURRAY, Presiding Judge.

Defendant Murphy filed this appeal after his conviction for trafficking in cocaine. Defendant contends the trial court erred in denying his motion to suppress cocaine which drug enforcement agents seized from his pants during a warrantless search at Atlanta International Airport. We reverse because defendant's consent to this search was coerced and the search was not supported by probable cause. "When an officer represents to an accused that a warrant to search will be obtained if consent is refused, and does not have probable cause to secure the warrant, then the accused's consent is invalid. Code v. State, 234 Ga. 90, 95, 214 S.E.2d 873 (1975)." Darby v. State, 216 Ga.App. 781, 783(2), 455 S.E.2d 850.

The trial court's order denying defendant's motion to suppress includes the following findings of fact: "The testimony at the [motion to suppress] hearing included that of [Special Agent] Roderick Jordan of the Georgia Bureau of Investigation. Agent Jordan is a member of the Drug Enforcement Task Force stationed at the Atlanta Airport. Agent Jordan testified that he has 22 years of experience in narcotics, including seven years stationed at the airport. Agent Jordan's training includ[es] six months on-the-job training with Agent Paul Markonni and several training schools. Agent Jordan stated that he had interviewed hundreds or thousands of people in regards to drugs and had found concealed drugs.

"The evidence shows that on November 16, 1995, [Special] Agent Robert Johnson [of the Drug Enforcement Administration] relayed to Agent Jordan information that he had received. This information indicated that a man, who identified himself as Jeffrey Murphy, had purchased a round-trip cash ticket from Atlanta to Newark. The ticket was purchased at 6:21 p.m. for a flight that left Atlanta at 8:00 p.m. No reservation had been made. The flight was scheduled to arrive in Newark at 10:07 [p.m.] Murphy's return flight was scheduled for 7:00 a.m. the next morning. The Agents realized that, according to his itinerary, Murphy could only have spent approximately nine hours in Newark. The description obtained of Mr. Murphy was of [an African-American] male, approximately thirty, 5'10"' or 5'11"' with gold in his teeth, wearing a mid-length leather coat. Murphy did not check any luggage.

"Agent Jordan testified as to the significance of the flight to Newark. He stated that New York City is considered a drug-source city and Newark is a gateway to New York. Drug couriers frequently fly to Newark when they cannot get a flight into one of the two New York airports. Jordan testified that Newark airport is in fact closer to New York City than one of the New York airports.

"Agent Jordan testified the [significance] of a ticket purchased shortly before a flight is that it is typical of the drug trade. People in the drug business are in a hurry and do not make prior plans or prior reservations. Further, drug couriers often do not check any luggage because they are not staying long and try to travel as light as possible. Drug couriers often pay with cash to prevent showing a trail of their travel and because drugs are generally a cash business.

"Agents Jordan and Johnson identified a man getting off the plane from Newark who fit the description of Jeffrey Murphy. He was walking very quickly. The Agents caught up to him by the escalator. Agent Johnson approach[ed] the man and identified himself. Agent Jordan positioned himself so as to hear the conversation. Agent Johnson asked to speak with the man who later identified himself as Jeffrey Murphy. Murphy agreed to speak with the Agents and Agent Johnson asked to see his ticket. Defendant patted his pants and pockets looking for his ticket. According to Agent Jordan, Murphy patted himself down eight times looking for his ticket. Finally, he told Agent Johnson that he must have left his ticket on the plane. (The ticket was subsequently found in his coat pocket after Defendant was searched.)

"Agent Johnson asked Defendant for his name and identification. Defendant provided a New York driver's license with the name Jeffrey Murphy. After possibly noting some information on a newspaper, [Agent] Johnson returned the license to Murphy. The agent questioned Murphy about his trip. Murphy stated that he had gone to see a friend and later added that the friend was sick. Murphy could not provide the friend's name. Murphy later stated that he went to visit his sick son in the hospital, but could not provide his son's name or the name of the hospital.

"Agent Johnson asked Defendant for permission to search him. Defendant refused consent and responded, 'Isn't it my right not to be searched?' After more questioning, the Agents again asked for permission to search, Defendant said no. Agent Jordan asked him why he did not want to be searched and if it was because he was embarrassed. Defendant said he just did not want to be searched. The Agents then advised Defendant that they were detaining him so that they could apply for a search warrant. Defendant told the Agents to go ahead and search. Agent Jordan testified he asked Murphy two or three times if he was sure it was alright. Murphy turned and put his hands on the wall. Agent Jordan told him that was unnecessary. The ensuing search revealed a brick of cocaine in the Defendant's pants just below the waistline.

"Agent Jordan testified that during the encounter (prior to the search) the Defendant had become increasingly nervous. His breathing was heavy and shallow. Defendant had trouble speaking and avoided eye contact. His hands shook. After Defendant gave the agents his identification, he put his hands in his coat pocket and kept pulling the coat closed as if he was trying to hide something in the area of his waist. Murphy's shirt was not tucked into his pants. [Agent] Jordan testified this is typical of drug couriers transporting drugs on their body. [Special] Agent Robert Johnson ... testified to essentially the same facts as [Agent] Jordan." Held:

1. The articulable suspicion which will authorize an airport stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, has been defined as whether under the totality of the circumstances the law enforcement officer has " 'a particularized and objective basis for suspecting the particular person stopped of criminal activity.' United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, , 66 L.Ed.2d 621 (1981)." Vansant v. State, 264 Ga. 319, 320(2), 443 S.E.2d 474. Evidence in the case sub judice that defendant deplaned in Atlanta after an 11-hour round-trip to...