State v. Hodges

• Decision Date: 16 July 1987
• Docket Number: No. 74148,74148
• Citation: 360 S.E.2d 903,184 Ga.App. 21
• Parties: The STATE v. HODGES et al.
• Court: Georgia Court of Appeals

Page 903

360 S.E.2d 903

184 Ga.App. 21

The STATE v. HODGES et al.

No. 74148.

Court of Appeals of Georgia.

July 16, 1987.

Rehearings Denied July 31, 1987.

Certiorari Denied Sept. 10, 1987.

Thomas J. Charron, Dist. Atty., Debra H. Bernes, Nancy I. Jordon, Asst. Dist. Attys., for appellant.

Kenneth S. Waldrop, Irvan A. Pearlberg, Marietta, for appellees.

BEASLEY, Judge.

The trial court granted appellees' motion to suppress evidence, in a proceeding pursuant to OCGA § 17-5-30, after concluding that the investigative stop of appellees was not supported by an articulable suspicion, in violation of the Fourth Amendment. The state appealed. Although Hodges ostensibly relied below on both federal and state constitutional provisions, only the federal ground is involved here.

The search and seizure did not cross Fourth Amendment federal constitutional bounds. The evidence shows that the two police detectives had an articulable suspicion to detain the occupants of the car and lawfully seized contraband after looking into the car with a flashlight in the brief course of their investigatory activity.

It was about 9:30 at night, and the detectives, both of whom had many years' experience in law enforcement, drove in a certain shopping center on patrol because several business owners had asked the police to keep a check out due to problems particularly in this shopping center with young people and with vandalism. At this hour only the Dairy Queen was open. The detectives noticed a sole car parked in an unlit part of the parking area, at a location where a shopper at West's Lumber Company would park during business hours. It was uncommon to see a lone car parked at the center at night, and they thought at first it was abandoned.

After they turned to ride up to the car, their car lights showed two occupants, who looked at them. The driving detective activated the blue dashboard light to announce their identity. The reaction of the two young males (both age 17) to the symbol of the presence of the police was telling. The detective car was about 15 feet to 20 feet away at this moment. "As soon as they saw that blue light, the driver's eyes got real wide and they began getting very nervous." They frantically began pushing something underneath the seat very quickly. According to the detectives, the presence of the two youths in a darkened car in a dark area away from any activity or lights in a problem area first raised a suspicion, as there was no apparent legitimate reason for them to be there. That suspicion was enhanced by the commotion which the police presence prompted.

The two detectives pulled up next to the car and exited their own because the occupants of the other car did not. The detectives approached, one on each side of defendant's car, and asked them to exit also. Their very hurried exit and rapid movement away from the car as though to draw attention away from it added to the suspicion of criminal activity, in the minds of the detectives. When asked what their business was there, the young men said they were looking for a place to eat but said nothing about the Dairy Queen. There were few if any cars in the parking area for the Dairy Queen, which was about 70' to 80' away. It was uncommon for a car to park in the rear of West Lumber Company and its occupants to walk to the Dairy Queen.

While one detective momentarily detained the two youths, who by now were about 30 feet to 40 feet away from their car, the other detective looked in the passenger side of their vehicle with his flashlight and saw on the floorboard and in an ashtray what his long experience on the narcotics squad led him to believe were marijuana roaches. He walked around to the driver's side and saw through the window a white paper protruding from under the seat where it had appeared the occupants were pushing something. Having seen the marijuana, he reached in and retrieved the paper, which contained what he knew as blotter acid (LSD). Throughout this encounter, a beeper pager in the car was sounding and displaying telephone numbers continually.

The defendants were then arrested.

The United States Supreme Court has said: "In Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ] the Court first recognized 'the narrow authority of police officers who suspect criminal activity to make limited intrusions on an individual's personal security based on less than probable cause.' Michigan v. Summers, 452 U.S. 692, 698 [101 S.Ct. 2587, 69 L.Ed.2d 340] (1981) ... [T]he Court implicitly acknowledged the authority of the police to make a forcible stop of a person when the officer has reasonable, articulable suspicion that the person has been, is, or is about to be engaged in criminal activity. 392 U.S., at 22 ... When the nature and extent of the detention are minimally intrusive of the individual's Fourth Amendment interests, the opposing law enforcement interests can support a seizure [of person or property] based on less than probable cause ... In Terry, we described the governmental interests supporting the initial seizure of the person as 'effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.' 392 U.S., at 22 ." United States v. Place, 462 U.S. 696, 702-704, 103 S.Ct. 2637, 2641-42, 77 L.Ed.2d 110 (1983). See also United States v. Hensley, 469 U.S. 221, 226, 105 S.Ct. 675, 683, 83 L.Ed.2d 604 (1985), and cases cited therein, regarding automobile stops and detention of occupants.

"United States v. Brignoni-Ponce, 422 U.S. 873, 881-882 [95 S.Ct. 2574, 2580-81, 45 L.Ed.2d 607] (1975), was unequivocal in saying that reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop ... The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion in a short period of time. See, e.g., United States v. Brignoni-Ponce, supra at 881-882 Adams v. Williams, supra, [407 U.S. 143, 146, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612 (1972)] at 146... [T]o justify [a less-than-probable-cause] seizure an officer must have a reasonable suspicion of criminal activity based on 'specific and articulable facts ... [and] rational inferences from those facts....' Terry v. Ohio, 392 U.S. at 21 . See also Brown v. Texas, 443 U.S. 47, 51, [99 S.Ct. 2637, 2640, 61 L.Ed.2d 357] (1979)." Florida v. Royer, 460 U.S. 491, 498, 512, 103 S.Ct. 1319, 1324, 1332, 75 L.Ed.2d 229 (1983).

Our Georgia appellate courts have explained these concepts in applying the United States Supreme Court interpretations of the Fourth Amendment parameters: " 'It is clear that in cases where there are some reasonable articulable grounds for suspicion, the state's interest in the maintenance of community peace and security outweigh the momentary inconvenience and indignity of investigatory detention.' Brisbane v. State, 233 Ga. 339, 343, 211 S.E.2d 294 [1974]. It is also clear that what is a 'reasonable articulable ground' for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. Brisbane [supra, at 342, 211 S.E.2d 294] Each case depends on its own facts. 'The point at which the routine protection of the public becomes an invasion of the right of privacy of the individual must rest on the particular circumstances involved.' [Cit.]." Allen v. State, 140 Ga.App. 828, 830(1), 232 S.E.2d 250 (1976). See also State v. Purdy, 147 Ga.App. 340, 248 S.E.2d 683 (1978).

Here there was an articulable suspicion, and it was described at the hearing by the two officers who were functioning in an alert manner to protect the shopping center from criminal activity. As in Jones v. State, 156 Ga.App. 730, 275 S.E.2d 778 (1980), it was a founded suspicion and the seizure of contraband which was in plain view, and was observed by the officer after the brief detention commenced, was valid. As in Brisbane v. State, supra, the circumstances created a justifiable suspicion of the conduct of the appellees so as to warrant the limited investigative detention, and the officers acted reasonably under the totality of the circumstances. See also Anderson v. State, 123 Ga.App. 57, 61, 179 S.E.2d 286 (1970); Tanner v. State, 114 Ga.App. 35, 150 S.E.2d 189 (1966).

Concerning seizure of the property, the marijuana and LSD, "[p]robable cause to search an automobile exists when the facts and circumstances before the officer are such as would lead a reasonably discreet and prudent man to believe that the contents of the vehicle offend the law." Williams v. State, 167 Ga.App. 42, 43(1), 306 S.E.2d 46 (1983); Parker v. State, 161 Ga.App. 37, 38, 288 S.E.2d 852 (1982); Fuqua v. State, 142 Ga.App. 632, 633, 236 S.E.2d 685 (1977). Here the circumstances were measurably enhanced by the roaches in plain view. These the officer had a right to see because he may "visually search the entirety of a car from his vantage point on a street or roadside," Galloway v. State, 178 Ga.App. 31, 34, 342 S.E.2d 473 (1986), and the public parking area of a shopping center would be no different in this regard.

Further, as stated in Galloway, supra, "[t]he viewing need not be motivated by any articulable suspicion." Viewing through a car window does not constitute a search. Catchings v. State, 256 Ga. 241, 247 (10a), 347 S.E.2d 572 (1986). And since the roaches, which were...