Radowick v. State

• Citation: 244 S.E.2d 346,145 Ga.App. 231
• Decision Date: 14 February 1978
• Docket Number: Nos. 54893,54894,No. 2,s. 54893,2
• Parties: William J. RADOWICK v. The STATE. Steven G. LADD v. The STATE
• Court: United States Court of Appeals (Georgia)

Page 346

244 S.E.2d 346

145 Ga.App. 231

William J. RADOWICK v. The STATE.

Steven G. LADD v. The STATE.

Nos. 54893, 54894.

Court of Appeals of Georgia,Division No. 2.

Feb. 14, 1978.

Rehearing Denied March 10, 1978.

Cook & Palmour, Summerville, Bobby Lee Cook, Jr., Archer, Elsey & Vaughan, William T. Elsey, Cartersville, John Roger Sherry, Miami, Fla., for appellants.

Charles Crawford, Dist. Atty., Cartersville, Kirby G. Atkinson, Asst. Atty. Gen., Atlanta, for appellee.

QUILLIAN, Presiding Judge.

On the morning of May 23, 1977, Officer Daniels of the Cobb County Police Department, received a telephone call from an unknown individual. This call was routinely taped. The anonymous caller reported: ". . . a suspect load of marijuana on a maroon, four-wheel drive Chevrolet truck with a camper body on it. License plate KWA 642, Virginia license plate . . . The camper door came open and it was, uh, burlap bags packed in suspect-looking, you know. It was headed north on Roberts Road, at the Wade-Green Interchange and the back door came open and it was almost about to fall out, and they was real nervous the two fellows were . . . he should be in Bartow County by now." The caller did not give his name and the police did not question him. Immediately thereafter Officer Daniels sent a teletype message to the Georgia State Patrol Barracks in Cartersville, which read: "Be on the lookout for a late model maroon Chev. PU. TK. 4-wheel drive, with camper on the back. Bearing VA. Lic. KWA-642. The vehicle should be traveling North-bound on US 41. Should be in your County at this time. Poss. loaded down with marijuana. Any contact hold and notify this station."

Georgia State Trooper Moore received the message and drove south until he contacted the described vehicle. He followed it for "about a mile and a half." He noticed nothing unusual. The driver committed no traffic violations in Trooper Moore's presence. The teletype message from the Cobb County Police was the sole reason he stopped the defendant's vehicle. Defendant Radowick was driving and defendant Ladd was in the passenger's seat. The driver was "completely calm" but the passenger was "more nervous," "fidgety." Trooper Moore asked Radowick for his driver's license and the passenger for identification. He received and kept both of their driver's licenses. He asked: "Would you mind stepping back to the back of the . . . truck, and they did . . ." He explained that he had received a message and "had stopped them for suspicion of transporting contraband . . . (and) asked them if they would give (him) permission to search their vehicle." Neither defendant said "yes" or "no."

Trooper Moore testified: "I told them at the time while we were standing out there that if they did not give me consent to search the vehicle, if I couldn't search it with their permission, then I would have to go down and get a judicial officer to issue a search warrant for me to search the vehicle, that the vehicle would be searched before we let them go." He "suggested" they get in the patrol car. He denied that he ordered them into the patrol car, because "when (he) asked them about the consent search he appeared to me to be somewhat reluctant." Moore radioed for another unit.

Two policemen arrived shortly thereafter. Trooper Moore advised them of the situation and the message he had received, but they did not have a "consent search form." Then they called the local detective unit. Mr. Sullivan, a detective with the Bartow County Sheriff's Office, estimated it took them "about fifteen minutes" to reach the scene. The defendants "were in the back seat of the trooper's car. I just took it for granted they were being held for us." Mr. Sullivan was advised by Trooper Moore about the "truck was supposedly loaded with marijuana." Mr. Sullivan took the driver's licenses from Trooper Moore, advised the defendants of their Miranda rights, and they also were "advised of their rights" as to a "consent search." Defendant Radowick stated: "we were probably going to search it there that we might as well search it there, because we were going to search it downtown anyway."

After the consent to search form was secured, the detectives approached the back door of the pickup truck. One detective stated that he smelled marijuana. The other detective "sniffed around the door" and agreed that it was marijuana. The rear door was secured by two screws and nailed shut. After it was pried open, 74 bales of marijuana were found inside. Defendants appeal their conviction. Held :

1. The first issue to be resolved is whether the police were authorized to stop the defendants' vehicle. The United States Supreme Court, in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 and Brinegar v. United States, 338 U.S. 160, 177, 69 S.Ct. 1302, 93 L.Ed. 1879, specifically upheld an individual's "freedom to use public highways in swiftly moving vehicles for dealing in contraband and to be unmolested by investigation and search in those movements. In such a case the citizen who has given no good cause for believing he is engaged in that sort of (criminal) activity is entitled to proceed on his way without interference." 338 U.S. 160, at p. 176, 69 S.Ct. 1302, at p. 1311, 93 L.Ed. 1879.

Carroll and Brinegar antedated Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, the progenitor of the doctrine that a police officer may make "an intrusion short of arrest" where he has "specific and articulable facts" which reasonably warrant such intrusion. Thus, the individual's "freedom to use public highways" is circumscribed by the state's police power when the officer has "specific and articulable facts" which warrant a stop of a vehicle to investigate the circumstances which provoke a reasonable and founded suspicion. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607.

This court has held that "articulable suspicion" is "less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment." Allen v. State, 140 Ga.App. 828, 830, 232 S.E.2d 250, 252. The U.S. Supreme Court, in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612, held that a policeman was justified in stopping an individual on a "tip" that he would be carrying a gun and that Terry recognized that the Fourth Amendment did not require a police officer who lacked the precise level of information necessary for probable cause to arrest an individual, to simply shrug his shoulders, walk away, and permit the crime to occur or the criminal to escape. On the contrary, Terry recognized it could be the essence of good law enforcement practice to adopt an intermediate response by a "brief stop " of the suspicious person "to maintain the status quo momentarily while obtaining more information" to confirm or dispel the information received. 407 U.S. 143, at 146, 92 S.Ct. 1921, 1923. (Emphasis supplied.)

In Brignoni-Ponce, the Court explained that such "limited searches and seizures . . . were a valid method of protecting the public and preventing crime . . . (and) because of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives" that when a police officer's information leads him to reasonably suspect a violation of the law "he may stop the car briefly and investigate the circumstances that provoke suspicion." 422 U.S. 873, at p. 881, 95 S.Ct., at p. 2580. (Emphasis supplied.) We find there was a "founded suspicion" based on "articulable facts." The stop was authorized.

2. The second threshold reached is, if the stop was legal, was the subsequent search legal? The state contends the search was authorized on two grounds: (1) probable cause, and (2) consent. We will deal with the issue of probable cause first.

An automobile in which contraband is concealed and transported may be searched without a warrant if police have probable cause for believing the automobile to be searched contains the contraband. Gondor v. State, 129 Ga.App. 665(1), 200 S.E.2d 477. The search without a warrant is permitted where it is impractical to obtain one because of the automobile's potential for instant mobility. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. Thus, Georgia has less stringent requirements for a warrantless search of an automobile than a permanent dwelling. Underhill v. State, 129 Ga.App. 65, 68, 198 S.E.2d 703. However, the fact that it is an automobile is not talismanic. The right to search and the validity of the seizure are dependent "on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law." Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543, supra.

Here the basis for the stop and establishment of probable cause to search was information from an unknown informant. The U.S. Supreme Court has held where the impetus for the search originates with an informant, the police officials should be informed (1) of some of the underlying circumstances from which the informant concludes that contraband is where he claims it is, and (2) some of the underlying circumstances from which the officer concludes the informant, whose identity need not be disclosed, is credible or his information is reliable. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723.

The officer receiving the call from the unknown informant was given the circumstances which demonstrated why he knew the suspected contraband was where he said it was. But, was the second prong of Aguilar established? We hold that it was not. The detailed information of the description of the camper was verified by observation of the state trooper, but this is merely corroboration of "innocent activity and data" which is "unilluminating" as to any criminal activity. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637...