Smith v. State, A94A2622
| Decision Date | 28 February 1995 |
| Docket Number | No. A94A2622,A94A2622 |
| Citation | 216 Ga.App. 453,454 S.E.2d 635 |
| Parties | SMITH v. The STATE. |
| Court | Georgia Court of Appeals |
Daniel B. Kane, Atlanta, for appellant.
David McDade, Dist. Atty., Jackie N. Stanton, James E. Barker, Asst. Dist. Attys., for appellee.
Eric Ake Smith was convicted of possession of less than one ounce of marijuana in violation of the Georgia Controlled Substances Act. On appeal, Smith contends the trial court erred in denying his motion to suppress.
The evidence shows that one morning, shortly after midnight, Smith was pulled over by an investigator in the narcotics division of the Douglasville Police Department. The officer testified he observed Smith swerve into different lanes three or four times, and pulled him over because he suspected Smith could have been under the influence of alcohol or drugs. The officer told Smith why he pulled him over and requested his driver's license, which Smith produced. The officer then asked Smith if he had been drinking. When Smith told the officer he had not been drinking, the officer asked why Smith was weaving. Smith told the officer he was very tired because he had traveled from another state. The officer testified Smith had no odor of alcohol on his breath and no field sobriety tests were administered.
Following the questions regarding Smith's weaving, the officer asked if he could search Smith's pickup truck. When Smith would not give his consent to the search, the officer asked if he had any contraband, specifically narcotics, in the truck. When Smith denied having contraband and explained that he just did not want the officer to search the truck the officer told Smith he would have to call the K-9 unit. The officer testified he detained Smith because he "suspected he possibly could have had narcotics in his vehicle," then went back to his patrol car, requested the K-9 unit and checked the status of Smith's driver's license. When asked the basis for his suspicion, the officer stated that because Smith "wouldn't consent to a search, [he] felt he had something to hide in the vehicle." After checking the license and calling for the K-9 unit, the officer observed Smith seated in the truck and placing something in his mouth. When the officer approached the truck, he saw part of a plastic bag sticking out of Smith's mouth. Following the officer's instructions, Smith stepped out of the truck and spit out a bag of what appeared to be marijuana.
In determining whether the trial court erred in denying Smith's motion to suppress the marijuana, we must determine "whether the officer's action [in pulling Smith over] was justified at its inception, and whether [the detention] was reasonably related in scope to the circumstances which justified the interference in the first place." Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1967).
1. Smith argues that the initial stop was unlawful because the weaving was a mere pretext to conduct a drug investigation. We disagree. Id. at 21-22, 88 S.Ct. at 1880. In the instant case, those facts were that the officer observed Smith weaving and this weaving "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." Pupo v. State, 187 Ga.App. 765, 766(1), 371 S.E.2d 219 (1988). The trial court found, and we agree, that stopping a vehicle under these circumstances was appropriate for the protection of the public. Id.
2. We turn now to an inquiry regarding the scope of Smith's detention. ...
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