Powers v. State

• Decision Date: 16 May 2003
• Docket Number: No. A03A0036.,A03A0036.
• Citation: 582 S.E.2d 237,261 Ga. App. 296
• Parties: POWERS v. The STATE.
• Court: Georgia Court of Appeals

582 S.E.2d 237

261 Ga. App. 296

POWERS v. The STATE.

No. A03A0036.

Court of Appeals of Georgia.

May 16, 2003.

Guy J. Notte, Madison, for appellant.

Fredric D. Bright, Dist. Atty., Richard M. Gailey, Jr., Asst. Dist. Atty., for appellee. ELLINGTON, Judge.

A Putnam County jury convicted James David Powers of possession of methamphetamine and marijuana, OCGA § 16-13-30; obstruction of a police officer, OCGA § 16-10-24; and operation of an unregistered vehicle, OCGA § 40-2-8. He appeals from the denial of his motion for new trial, claiming that the trial court erred when it denied his motion to suppress the evidence gathered during a traffic stop pursuant to a roadblock and during a subsequent search of his home. Finding no error, we affirm.

The standard of review for each of Powers' four enumerated errors is the same. "A trial court's order on a motion to suppress will not be disturbed if there is any evidence to support it, and the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous." (Citation and punctuation omitted.) McBride v. State, 246 Ga.App. 151, 152, 539 S.E.2d 201 (2000). We construe all evidence presented in favor of the trial court's findings and judgment, Loney v. State, 245 Ga.App. 376, 377, 537 S.E.2d 780 (2000). Viewed in this light, the evidence presented at the hearing on Powers' motion to suppress showed that, on the afternoon of December 4, 1999, members of the Putnam County Sheriff's Office and the U.S. Forest Service conducted a roadblock to check for impaired drivers, as well as to check driver's licenses, tags, and insurance cards.¹ At approximately 2:25 p.m., Powers approached the roadblock in his dump truck. An officer noticed that Powers' truck had an expired tag, and instructed Powers to pull his truck over to the shoulder of the road. Upon approaching Powers, the officer smelled a strong odor of alcohol on Powers' breath. While the officer worked on the expired tag citation, a Forest Service agent approached Powers' truck. The Forest Service agent observed a rifle on the seat and asked Powers to step out of the truck. The agent also smelled a strong odor of alcohol coming from Powers. The agent asked Powers if he had been drinking, and Powers stated that he had had one beer. Powers agreed to take a field sobriety test, and the agent performed a horizontal gaze nystagmus (HGN) test. Powers failed the HGN test, but, based upon his experience, the agent believed Powers was impaired by drugs, not alcohol. The agent asked Powers whether he had taken any drugs, and Powers said he had taken an over-the-counter cold medication.

Before the first officer finished processing the citation for an expired tag, the Forest Service agent asked for and received Powers' consent to search him and his truck. Powers began emptying his pockets and placed a small bag of marijuana in the agent's hat. Powers also dropped on the ground a section of straw on which there was a white powdery residue.² The agent noticed a bulge in Powers' pants pocket and asked him what it was. The agent started to pat it down, but Powers pushed him backward and ran into the nearby woods. As an officer pursued Powers, he saw Powers take something from a pocket and throw it to the ground. The officer caught Powers and arrested him for possession of marijuana and obstruction of an officer. Officers searched for but could not find the discarded item. During the subsequent search of the dump truck, officers discovered additional marijuana pushed down behind the seat.

After the arrest, a Putnam County detective arrived at the scene and asked Powers for permission to search his home. Powers refused, saying that his parents lived with him and he did not want to "put them through" a search. The detective knew, however, that Powers' parents lived at a different address. The detective conducted a criminal records background check, which revealed that Powers was a convicted felon.³

After officers transported Powers to jail, the detective prepared an affidavit and secured a search warrant for Powers' home. Officers went to Powers' home at approximately 6:00 p.m. on the evening of Powers' arrest. The officers talked with Powers' live-in girlfriend. She told the officers that, except for a small amount of marijuana in her jewelry box, the drugs in the home belonged to Powers.⁴ The officers found several firearms, marijuana, a pipe for smoking drugs, and small amounts of methamphetamine.

Prior to trial, Powers filed a motion to suppress the evidence resulting from his stop at the roadblock and from the search of his home. The trial court conducted a hearing and denied the motion. The case proceeded to trial, and the jury convicted him on all counts. He appeals from the denial of his motion for new trial, challenging only the denial of his motion to suppress.

1. Powers contends the roadblock was unconstitutional, arguing the officers gave conflicting testimony about the roadblock at the motion hearing. Powers also argues that the true purpose of the roadblock was to detect evidence of ordinary criminal wrongdoing. Both of these assertions lack merit.

The Supreme Court of Georgia addressed the constitutionality of the type of roadblock utilized in this case in LaFontaine v. State, 269 Ga. 251, 252-253(3), 497 S.E.2d 367 (1998). In LaFontaine, the Court held as follows:

It has been held that police officials may set up highway roadblocks for the purpose of requiring motorists to display their driver's license, and that such a practice does not invade their right to use the public ways free from unreasonable and unwarranted interception. Nor does such a practice constitute an unlawful arrest or restraint or an illegal search contrary to the United States Constitution. The State can practice preventative therapy by reasonable road checks to ascertain whether man and machine meet the legislative determination of fitness. Although a roadblock cannot be used as a subterfuge to detain citizens for the purpose of searching their automobiles, a momentary stop of a traveling citizen to perform the license checks or to check the present fitness of a car or driver for further driving is permissible. Roadblock stops have appreciably less intrusion on the part of travelers and do not create the fear and surprise engendered in motorists by roving patrol stops because the motorist is not singled out; the traveler is reassured when all vehicles are stopped. [Accordingly, a] roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the "screening" officer's training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

(Citations and punctuation omitted.) Id. However, the four LaFontaine factors are "not absolute criteria which must be satisfied before a roadblock is legitimate. Rather, this Court looks to the totality of the circumstances surrounding the roadblock to determine whether the factors were satisfied." (Citation and punctuation omitted.) Loney v. State, 245 Ga.App. at 376, 537 S.E.2d 780.

(a) Construing the evidence presented in this case in favor of the trial court's ruling,⁵ the record shows that a supervising officer authorized the roadblock prior to December 4, 1999, and was present while the roadblock was conducted. Screening officers, trained and certified in the detection of impaired drivers, were present.⁶ The officers clearly marked the roadblock, parking their vehicles on both sides of the road with lights activated. Officers stopped every car and checked for a valid driver's license, tag, and proof of insurance. There was no evidence that officers at the roadblock had unfettered discretion or stopped individual drivers in an arbitrary or oppressive manner. See Loney v. State, 245 Ga.App. at 376, 537 S.E.2d 780 (LaFontaine factors help to ensure roadblocks are not used in an arbitrary or oppressive scheme to detain certain citizens for improper searches). Therefore, based upon the totality of the evidence presented, we find the roadblock in this case was constitutionally valid under LaFontaine.

(b) Powers also claims that the roadblock was a mere subterfuge and that its actual purpose was to impermissibly look for "ordinary criminal wrongdoing." See City of Indianapolis v. Edmond, 531 U.S. 32, 44(III), 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) (police officers cannot use a road checkpoint to interrogate and search travelers in the hope of discovering criminal behavior). Powers attempts to back up this claim in his brief by implying, without citation to the record, that the officers ran a criminal background check on him when they saw the rifle in the front seat of his truck. The undisputed evidence showed, however, that the officers did not run a criminal background check on Powers until after he was arrested for marijuana possession and obstruction of a police officer, which occurred after he produced a packet of marijuana during the consensual search and after he attempted to run from the officers. Powers' argument lacks merit.

Accordingly, the trial court did not err in denying Powers' motion to suppress on the basis that the roadblock was unconstitutional.

2. Powers contends the Forest Service agent lacked a reasonable suspicion of criminal activity sufficient to detain him for further investigation after the first officer finished citing him for an expired tag. The record, however, shows otherwise.

It is undisputed that, due to Powers' expired tag, the officers had the reasonable and articulable suspicion necessary to justify a brief detention after stopping him at the roadblock.⁷ In...