Santone v. State, 76494

• Decision Date: 22 June 1988
• Docket Number: No. 76494,76494
• Citation: 187 Ga.App. 789,371 S.E.2d 428
• Parties: SANTONE v. The STATE.
• Court: Georgia Court of Appeals

Page 428

371 S.E.2d 428

187 Ga.App. 789

SANTONE v. The STATE.

No. 76494.

Court of Appeals of Georgia.

June 22, 1988.

Rehearing Denied July 11, 1988.

Guy J. Notte, Stone Mountain, for appellant.

Robert E. Keller, Dist. Atty., Clifford A. Sticher, Asst. Dist. Atty., for appellee.

BIRDSONG, Chief Judge.

Appellant Joseph Anthony Santone was convicted of trafficking in cocaine by knowingly bringing into this state and by knowingly being in actual possession of more than 28 grams of a mixture with a purity of more than ten percent cocaine. See generally OCGA §§ 16-13-26(1)(D); 16-13-31(a)(1). Held:

1. Appellant's first enumerated error is that the trial judge erred in overruling appellant's motion to suppress.

Agent Markonni and Agent Johnson of the DEA were in the Hartsfield International Airport watching passengers deplane from commercial flights arriving from major drug source cities. Appellant was observed getting off a flight from Fort Lauderdale. He was the "very last passenger" to deplane, and was carrying only a small leather tote bag. Appellant sought directions from airline personnel regarding a connecting flight, and Agent Markonni was able to observe appellant's ticket. The appellant did not have any baggage claims checks and his ticket had been purchased for cash. The name "Santone" was on the ticket. Agent Markonni next checked the Delta Air Lines reservation computer and discovered that appellant had purchased the ticket the same day and only two hours and fourteen minutes before flighttime. Appellant had left no call-back number with the airlines. As appellant appeared to have made a "last minute decision" to fly from Fort Lauderdale to Pittsburg, Agent Markonni decided to interview him and observe how he reacted.

Agents Markonni and Johnson went to the departure gate of appellant's next flight and arrived there before the appellant. When the appellant arrived, the agents "walked up to him" and identified themselves as police officers. Neither agent displayed his firearm. Agent Markonni asked if the appellant would speak with him for a few minutes, and the appellant responded in the affirmative. Agent Markonni then asked to see appellant's airline ticket, which the latter produced and gave to the agent. The agent verified that the ticket was a cash ticket, issued in the name of Joe Santone, and that it had no baggage claim attached thereto and bore no evidence that one had ever been thereto attached. The ticket was returned to the appellant, and the appellant was asked if he had any identification. Appellant produced an Ohio driver's license from an address book which contained no other identification cards. Agent Markonni noticed that the appellant had become "unusually nervous" and that his hand shook as he produced the driver's license. The appellant stated that he had gone to Florida to look for a job. Agent Markonni returned appellant's driver's license to him.

At this point, the appellant was informed that the agents were narcotics agents looking for drugs and asked if he would let the agents search him and his bag for drugs. Appellant hesitated and then said "yes." The agents gave appellant the option either of being searched in the departure gate area or of being searched in a private room. The appellant stated that he wanted to be searched in private. The appellant was taken to a private room. As soon as they entered the room, the appellant was read his search rights from a card that Agent Markonni carried. The appellant was specifically advised that he had the right to allow or refuse to allow a search to be made of his person and his personal property; that he had the right to consult with an attorney before deciding whether he would allow or refuse to allow the searches; and, that any illegal evidence found could be used against him in a court proceeding. Appellant stated that he understood his rights and consented to the search. A patdown of appellant revealed nothing; however, cocaine was found in the bottom of a pair of boots in appellant's tote bag. Laboratory analysis disclosed that the cocaine was 96 percent pure cocaine and that the total weight of the powder was 168 grams. After the drug was discovered, appellant was placed under arrest and was advised of his Miranda rights. Appellant was transported to the agent's office. During booking procedure, appellant was given a "very thorough search," and during the course of the search, he handed the agents a "little cocaine use kit" and a small vial containing cocaine. Appellant said that this latter quantity of drug was for his own personal use.

As a general rule, " 'the trial court's decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous.' " Jones v. State, 184 Ga.App. 328, 361 S.E.2d 693. The record of the suppression hearing has not been forwarded for consideration by this court, so we are unable to review the evidence admitted at that hearing. In the absence of a transcript of the suppression hearing, " 'we must assume as a matter of law that the evidence adduced at the hearing supported the findings of the court.' " Brannon v. State, 176 Ga.App. 781(5), 337 S.E.2d 782.

Moreover, our review of the trial transcript reveals no independent basis therein for reversal of the trial judge's ruling. As in Miller v. State, 183 Ga.App. 55, 56, 357 S.E.2d 876, " '[t]he facts disclose a valid police-citizen encounter' " followed by appellant's consent to speak with the officers for a few minutes. See generally Verhoeff v. State, 184 Ga.App. 501(2), 362 S.E.2d 85. Thereafter, appellant voluntarily remained in the officers' presence affirmatively responding to their requests to see his airplane ticket and driver's license. The appellant further consented to a search of his person and his bag, and expressly requested that he be searched in private rather than at his current location. Immediately upon entering the private room, the appellant was informed of his right to consent to or to object to the search and of his right to consult with counsel before making such an election. The accused again consented to search. The trial court found that, based on these facts, "the defendant consented to a search of his carry-on bag and that the contraband was properly seized." We accept those findings without reservation, as there exists no evidence before this court which would warrant our conclusion that the trial court's finding was "clearly erroneous." Id. In fact, the transcript of the trial shows that appellant was not subjected to any duress or coercion, and that he "freely, voluntarily and intelligently consented to the search of his person and his personal belongings." Jones v. State, supra 184 Ga.App. at 329, 361 S.E.2d 693.

2. Appellant's second enumeration of error is that the trial court erred in refusing to charge the jury "that the lesser included offense of trafficking in cocaine is possession."

This case is distinguishable from both Dalton v. State, 249 Ga. 720, 292 S.E.2d 834 and Waters v. State, 177 Ga.App. 374, 339 S.E.2d 608, as neither of ...