Smith v. State

• Decision Date: 16 July 2003
• Docket Number: No. A03A0673., No. A03A0669
• Citation: 262 Ga. App. 614,585 S.E.2d 888
• Parties: SMITH v. The STATE. Caldwell v. The State.
• Court: Georgia Court of Appeals

585 S.E.2d 888

262 Ga. App. 614

SMITH v. The STATE.

Caldwell v. The State.

Nos. A03A0669, A03A0673.

Court of Appeals of Georgia.

July 16, 2003.

Reconsideration Denied July 31, 2003.

Angela D. Duncan, Doraville, for appellant (case no. A03A0669).

Tyrone M. Hodnett II, for appellant (case no. A03A0673). Daniel J. Porter, Dist. Atty., Julie L. Johnson, Asst. Dist. Atty., for appellee.

ANDREWS, Presiding Judge.

Pursuant to the grant of an interlocutory appeal, Patrice Smith and Alfred Eugene Caldwell appeal from the trial court's denial of their motions to suppress. Both Smith and Caldwell were charged with theft by receiving and theft by taking of two computer monitors and two computer keyboards, as well as possession of cocaine and less than an ounce of marijuana. Caldwell also was charged with possession of a firearm by a convicted felon and use of a firearm during the commission of a felony.

In considering an appeal from denial of a motion to suppress, this Court construes the evidence in favor of the trial court's ruling, and we review de novo the trial court's application of the law to undisputed facts. Jones v. State, 259 Ga.App. 849, 850, 578 S.E.2d 562 (2003). Absent an abuse of discretion, the trial court's order on a motion to suppress will not be disturbed. Hatcher v. State, 219 Ga.App. 82, 84, 464 S.E.2d 236 (1995).

Smith's grounds for her motion to suppress were that there was no probable cause or reasonable and articulable suspicion for the stop of her car; that she was held without probable cause; that she was not properly and timely given her Miranda warnings; and that all evidence regarding the stop, any statements she made after the stop, and any evidence seized should be suppressed as the "fruit of the poisonous tree." Caldwell's grounds were lack of probable cause for his arrest; no exigent circumstances; the searches were illegal and without his consent; and all evidence obtained as a result of the search was "fruit of the poisonous tree."

Viewed in favor of the trial court's ruling, the evidence was that, on December 28, 2000, Gwinnett Police responded to a 911 call from the employees of a computer store. When Officer J.P. Wilbanks arrived, a store employee reported that boxes containing two computer monitors and two keyboards had been stolen from the store's loading dock. The employee returned to the loading dock in time to see a car containing two men pull around the building, with the boxes containing the computer equipment in the back seat. The car was a smaller, white passenger model with license plate number 680 PPY.

Jeff Griffin told Officer Wilbanks that he was driving near the computer store at the time of the incident and noticed a white car leaving the parking lot at a high rate of speed and in a reckless manner. He saw people running up behind the vehicle waving at it. Suspecting something was wrong, he began to follow the car. He noted that the car had the license plate number 680 PPY. Griffin followed the car to a residential area and then returned to the computer store to report what he had seen.

Griffin subsequently rode with Wilbanks along the route he had seen the car take until they located a vehicle matching the witnesses' description. The car was unoccupied and parked in front of the 700 building of an apartment complex. Wilbanks confirmed that the license number on the car was 680 PPY and noted that it was backed up directly in front of Apartment 702. He then drove to the exit area of the apartment complex and called for additional officers to come to the scene. Another officer, Lieutenant Hood from the Norcross Police Department, arrived a short time later. As the two officers were talking, they saw the white car drive up to the exit area. Wilbanks waved the car down in order to speak with the driver, later identified as Smith. Smith's baby was also in the car.

Wilbanks explained that the car Smith was driving had been seen leaving the scene of a theft and asked what she was doing at the apartment complex. Smith said that she lived in Winder and was at the apartment to visit a friend, but she was leaving because she had been unable to find her friend. She told the officers that she had been close to her car the whole time and had merely parked in front of the 700 building to throw away some trash. When Wilbanks checked the car earlier, however, no one was around it or the nearby dumpster. While they were talking, a third policeman, Gwinnett County Officer Wilkerson arrived. Wilbanks acknowledged that, at this point, Smith was being detained and was not free to leave, although she was not under arrest. At some point during this period, Wilbanks confiscated Smith's cell phone as she attempted to place a call.

Smith later told police that she had actually been visiting a male friend named Cory in Apartment 809, and she agreed to take the officers there. When they arrived at the apartment, Cory and the other occupants of the apartment denied that Smith had been there. When Cory was asked about the computers, he indicated they should look in Apartment 702.

Wilbanks then directed Smith to walk with him to Apartment 702. Wilbanks had Smith stand in front of the apartment door, then stood to one side, out of sight, and knocked on the door. Caldwell opened the door, and Wilbanks observed large quantities of electronic equipment behind him. Wilbanks then leaned into the apartment, without stepping inside, and saw several boxes containing computer equipment that matched the store employee's description.

At that point, Wilbanks reached in and grabbed Caldwell in a wristlock. The officer walked Smith and Caldwell over to the patrol cars. As they were walking, Smith spontaneously stated that she had just purchased the computers that day. Wilbanks handed Caldwell off to Officer Wilkerson, who patted Caldwell down and found a loaded .25 caliber pistol in his waistband. Wilbanks then placed Smith in the back of a patrol car and advised her of her rights. Smith told Wilbanks that the apartment was hers and that her name was on the lease. Wilbanks asked for permission to search the apartment, stating that his other option was to go and seek a search warrant. In response, Smith consented to a search of the apartment. At this point Smith had been detained for approximately one and one-half hours.

Afterward, the officers entered the apartment, where they located Derrick Campbell, a third co-defendant, hiding under a bed. They confirmed that the computer boxes matched those taken from the store and found two additional guns, a film canister full of crack cocaine, and some marijuana. The officers brought Caldwell back into the apartment and advised him of his rights. He stated that the guns and drugs were his, but that he did not know how the computers had gotten into the apartment. The officers also brought Smith inside the apartment, where she watched the officers itemize and remove each item, but did not withdraw her consent.

1. Smith and Caldwell assert that Wilbanks's initial stop of Smith's car was illegal because he lacked articulable suspicion. We disagree.

A police officer may make a momentary detention and investigation based upon specific and articulable facts, which must exceed mere inclination, caprice, or harassment. State v. Stansbury, 234 Ga. App. 281, 283, 505 S.E.2d 564 (1998); Bailey v. State, 202 Ga.App. 427, 428, 414 S.E.2d 330 (1992). "The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause." (Citation and punctuation omitted.) Freeland v. State, 223 Ga.App. 326(1), 477 S.E.2d 633 (1996).

The store employee gave a description of the car involved in the crime, including the license tag number. Griffin, who gave an identical description, followed the car to the vicinity where it was later found parked. Wilbanks confirmed that the car in question had the reported license tag number, and the stop was made within an hour after the theft occurred. Under these circumstances, we find that Wilbanks had articulable suspicion to stop the car and detain Smith for further investigation at the scene. See Brown v. State, 253 Ga.App. 741, 742(1), 560 S.E.2d 316 (2002).

2. Smith and Caldwell also assert that Smith was unlawfully detained without being read her Miranda rights.

Miranda protections apply when an individual is either (1) formally arrested or (2) restrained to the degree normally associated with a formal arrest. Ayres v. State, 259 Ga.App. 290, 292(1), 576 S.E.2d 597 (2003). Although Wilbanks testified that Smith was not free to go at the time of the stop, he stated that she was not under formal arrest until she was placed in the patrol car. Therefore, we must determine whether Smith's earlier detention involved the degree of restraint associated with a formal arrest. In doing so, we apply an objective test to determine whether a reasonable person in Smith's place "would feel so restrained as to equate to a formal arrest." (Punctuation and footnote omitted.) Id. "A reasonable person has been defined as one neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances." ( Citation and punctuation omitted.) Turner v. State, 233 Ga.App. 413, 415(1)(a), 504 S.E.2d 229 (1998).

While Smith was not free to leave, not every detention equates with an arrest. A "law enforcement officer coming upon the scene of suspected criminal activity will conduct a general on-the-scene investigation and may detain temporarily anyone at the scene.... Such detentions do not trigger the requirements of Miranda v. Arizona." (Citation and punctuation omitted.) Tolliver v. State, 273 Ga. 785, 786, 546 S.E.2d 525 (2001...