Pupo v. State
| Citation | 187 Ga.App. 765,371 S.E.2d 219 |
| Decision Date | 22 June 1988 |
| Docket Number | Nos. 76677,76678,s. 76677 |
| Parties | PUPO v. The STATE. DONABY v. The STATE. |
| Court | Georgia Court of Appeals |
Theron M. Moore, Perry, for appellant (case no. 76677).
R. Robider Markwalter, Macon, for appellant (case no. 76678).
G. Theron Finlayson, Dist. Atty., George R. Christian, Asst. Dist. Atty., for appellee.
The appellants, Pupo and Donaby, were stopped by a Georgia State Patrol officer while proceeding northbound on I-75 in a vehicle registered in Donaby's name but being driven by Pupo. The trooper testified that he stopped the vehicle because he observed it "weaving" across its lane of traffic and into the emergency lane. He further testified that, upon being informed of the reason for the stop, Pupo acknowledged that he had been driving for a considerable length of time and was very tired. The trooper administered a breath test to Pupo, with negative results, and then asked for and obtained his signed consent to a search of the vehicle.
The ensuing search led to the discovery of small quantities of marijuana and cocaine inside the vehicle's trunk. The appellants were arrested on the basis of this discovery, and during a more thorough search of the vehicle which was later conducted at the jail, an additional pound of cocaine was discovered inside the heater cannister of the vehicle's engine compartment. On appeal from their convictions of trafficking in cocaine, the appellants contend that the original search was conducted in violation of their Fourth Amendment rights and that the trial court consequently erred in refusing to suppress the contraband as evidence.
1. Citing United States v. Smith, 799 F.2d 704 (11th Cir.1986), the appellants argue that the initial stop of the vehicle was unlawful because the asserted "weaving" of the vehicle was used as a mere pretext to conduct an investigation for drugs. In Smith, as in the present case, the arresting officer testified that he had observed the defendants' vehicle "weaving" prior to stopping it; however, the trooper there conceded that he had not stopped the vehicle on the basis of this observation but "had determined to make an 'investigative stop' of the vehicle from the moment he began pursuit in reliance on the drug courier profile." Id. at 706. Furthermore, the trial court in Smith determined, on the basis of the evidence presented at the suppression hearing, that no traffic violation whatever had in fact occurred. Concurring in this assessment, and further concluding that none of the observed "drug courier profile" characteristics had been sufficient to give rise to an articulable suspicion of criminal wrongdoing, the Federal Court of Appeals accordingly held that the stop had violated the defendants' Fourth Amendment rights.
The case before us is clearly distinguishable from Smith in that the trial court in the present case determined, on the basis of the evidence presented at the suppression hearing, that the observed "weaving" of the appellants' vehicle had in fact served as the actual reason for the stop, the immediate purpose of which had been to investigate a possible DUI violation rather than to effect a search for drugs. Moreover, although it was shown that the trooper had participated in a program known as "Operation Pipeline," the goal of which was to increase the interception of drug trafficking on the interstate highways, and that he had been accompanied at the time of the stop by a GBI agent, there was no indication that his decision to stop the appellants' vehicle had been influenced, much less dictated, by a "drug courier profile." Consequently, the trial court's factual determination that the trooper's initial detention of the vehicle had constituted a bona fide traffic stop is supported by the evidence and must be sustained on appeal. See generally State v. Swift, 232 Ga. 535, 536, 207 S.E.2d 459 (1974).
2. The appellants contend that, even assuming that the initial detention of the vehicle was valid, the trooper was without probable cause to conduct a search. We agree. However, the search was not predicated on probable cause but on appellant Pupo's consent. Having already effected a valid stop of the vehicle, the trooper certainly did not violate the appellants' Fourth Amendment rights merely by requesting such consent. Accord Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
3. The appellants contend that the trooper's conduct in obtaining Pupo's consent must be considered coercive pursuant to this court's decision in Radowick v. State, 145 Ga.App. 231, 244 S.E.2d 346 (1978). We disagree. In Radowick, it was shown that the police had held the defendants for "an inordinate period of time" prior to obtaining their consent and had informed them that a search warrant "would" be obtained in the event they did not consent. Id. at 242, 244 S.E.2d 346. No such circumstances were shown in the present case.
4. The appellants contend that Pupo's consent cannot be considered knowing and voluntary because he was without sufficient knowledge of the English language to read and understand the written consent form which he was called upon to sign and because the trooper...
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...278, 279, 551 S.E.2d 400 (2001) (physical precedent only), citing Kan v. State, supra at 171, 404 S.E.2d 281; Pupo v. State, 187 Ga.App. 765, 766(2), 371 S.E.2d 219 (1988). Accord State v. Benjamin, 266 Ga.App. 205, 206(2), 596 S.E.2d 623 (2004); Anderson v. State, 265 Ga.App. 146, 150(2), ......
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