Strickland v. State

• Citation: 594 S.E.2d 711,265 Ga. App. 533
• Decision Date: 11 February 2004
• Docket Number: No. A04A0526.,A04A0526.
• Parties: STRICKLAND v. The STATE.
• Court: United States Court of Appeals (Georgia)

594 S.E.2d 711

265 Ga. App. 533

STRICKLAND v. The STATE.

No. A04A0526.

Court of Appeals of Georgia.

February 11, 2004.

Clifton, Sanders & Smith, Joshua D. Huckaby, Toccoa, for appellant.

Michael H. Crawford, District Attorney, Deborah Wilbanks, Assistant District Attorney, for appellee.

ELDRIDGE, Judge.

A Stephens County jury found Keldon Strickland guilty of trafficking in cocaine, misdemeanor possession of marijuana, obstruction of an officer, and operating a vehicle without a valid license tag. He appeals and claims the trial court erred in denying his motion to suppress because the drugs at issue were found pursuant to a stop of his vehicle at an illegal roadblock. As will be discussed below, we agree with Strickland that the roadblock was unconstitutional but find that the discovery of the drugs was sufficiently attenuated from any illegal stop so as render the drugs admissible. Accordingly, we affirm Strickland's conviction.

A homicide occurred in Toccoa at a residence located in the Pond and Franklin Streets area; the victim had been shot, and his body was found on January 26, 2002. Officers from the Toccoa Police Department enlisted the aid of T. Attaway from the Georgia Bureau of Investigation to investigate. Subsequently, they experienced little success in identifying the perpetrator. A week after the murder, the officers decided to canvass the intersection of Pond and Franklin Streets at the same time of night that it had been reported gunshots were heard the week before, i.e., sometime between 10:00 p.m. and 2:00 a.m. Agent Attaway testified at the suppression hearing that the officers' efforts included,

stop[ping] people walking on the roads and stop[ping] people traveling by right in that general area to see if somebody might have saw something, or heard a gunshot, or something of that nature. And that's what we were there for. Was everybody that came through the Pond Street area and the Franklin Street area either walking or driving in a car we were asking them did you hear anything, were you in this area last week.

The only goal for stopping individuals "was to attempt to identify additional leads that would might identify who's responsible for the death of [the victim]." The intersection of Pond Street and Franklin Street where cars were stopped was clearly marked by patrol cars with flashing blue lights. The location was directly across the street from the murder scene. The five or six Toccoa police officers manning the roadblock were in uniform.

At approximately 10:50 p.m., appellant Strickland drove up to the area. It is undisputed that Strickland stopped his vehicle in the street before reaching the roadblock. An officer recognized his Cadillac and informed the others of his presence in the area. Apparently, Strickland had known the victim, and the officers had been wanting to talk to him about the case; there at the scene, Toccoa Police Lieutenant P. Moricz had a large picture of Strickland in order to help identify him on the chance he might be seen that night and could be questioned. Moricz testified at the hearing that Strickland was a "suspect in the murder case" and "we motioned him to pull over." Strickland pulled into a parking lot on Franklin Street.

Attaway and Moricz approached Strickland's car, and Attaway asked for identification. Strickland immediately became agitated and belligerent, yelling that "you got my driver's license." Attaway testified that, "Mr. Strickland, about the time he gets out of the car, he starts to get out of the car on his own." When Strickland saw his photograph in Moricz's hand, he "continues to get louder, and louder, and louder, and it's almost like he's agitated because this officer has his picture." Attaway testified that Strickland "was putting me on the defense because he's not talking like, you got my— he's hollering at me. ... [H]e's getting real belligerent. ... And he's trying to intimidate me and to back me up to start with." Apparently, Strickland was wearing "cargo" pants with numerous pockets that appeared to be bulging. The officers became concerned for their safety because of Strickland's belligerence, his status as a suspect, the fact that "he's right across the street from where this death occurred," and the fact that the perpetrator was still at large. Moricz performed a pat-down "for officers' safety." Thereafter, Moricz "just asked him if he would mind removing everything from his pockets." It is undisputed that Strickland was not under arrest or physically restrained by either officer at the time Moricz made his request. Attaway testified that, at that time, Strickland "pushes Paul [Moricz], and shoves him, and takes off running"; he stated that Strickland,

kind of goes, kind of twisted and pushing, and he starts again, and he kind of pushes at me, and then he shoves Paul [Moricz], and takes off running. He kind of pushes him back and takes off running. ... And I'm [(Attaway)] hollering, and he's running, he's running. ... And about the time I'm around he's really getting further away from me. And I'm telling them, you know, he's running, he's running. ... And about the time I get to the insurance company I fall—I don't fall, but my knee comes out, popped my knee out.

Moricz testified that "at that time I asked him to remove the items from the pocket, asked him if he would do it. And at that time he pushed Officer Attaway, and pushed me away, and then started running down the road"; he stated that Strickland "pushed me off to the right like that with his elbow and pushed Attaway away, and then he bolted around the car and took off running." Strickland did not testify at the motion hearing or at trial, and the evidence is uncontroverted concerning his physical contact with the officers.

The foot chase concluded when Toccoa Police Supervisor B. Pearson apprehended Strickland; when Attaway arrived on the scene, "they were kind of in a ditch where a culvert was." Pearson "made the comment when he was getting [Strickland] up, make sure you look in that culvert because he was doing something with his hands and shoving some items." Recovered from the culvert were 78.19 grams of cocaine. Several loose rocks of cocaine were also recovered from Strickland's pants pockets, as was a small plastic bag of marijuana. Further investigation showed that Strickland's vehicle carried an expired drive-out tag. Held:

Strickland claims error solely in the trial court's denial of his motion to suppress. He contends the Toccoa Police Department's roadblock did not serve a legitimate primary purpose, and thus, the stop of his vehicle was illegal. We agree with the thrust of Strickland's argument.

It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment.¹ The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.² In that regard, the United States Supreme Court has held,

We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. We suggested in [Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979),] that we would not credit the "general interest in crime control" as justification for a regime of suspicionless stops. Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety.³

The roadblock at issue in this case furthered neither of these legitimate goals. Motorists were stopped for a criminal investigation unrelated to road safety. We do not take lightly the importance of a murder investigation, but neither can we excuse the suspicionless seizure of our citizens in a perhaps futile attempt (as in this case) to develop a lead. And we do not find such intrusion to be "minimal." While Toccoa is one of our smaller cities, what is constitutional in Toccoa is constitutional in the metropolitan areas of this State, where crime and crime scenes are exponentially more frequent. As was noted by the supreme court of one of our sister states while deliberating this issue in relation to the City of Chicago, an exception for informational, investigative roadblocks, such as the one at issue here, has the potential to make roadblocks an everyday occurrence.⁴ As a consequence,

[i]f we were to rest the case at this high level of generality, there would be little check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose. Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life.⁵

Accordingly, unless and until the higher courts direct otherwise,⁶ we decline to suspend "the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes."⁷ Further, none of the exigent circumstances that may justify a generalized "crime control" roadblock are present here.⁸

But we do not find the constitutionality of the roadblock dispositive of this case. Indeed, the evidence appears uncontroverted that Strickland never reached the roadblock. Instead, he stopped his car in the street seemingly to avoid the block and only pulled into a parking lot when directed to do so by Lieutenant Moricz so that officers could question him about the victim's death—as apparently they had been seeking to do for some time. Was this independent Terry⁹ stop...