Swift v. State
| Decision Date | 08 February 1974 |
| Docket Number | Nos. 1,No. 48522,3,2,48522,s. 1 |
| Citation | 131 Ga.App. 231,206 S.E.2d 51 |
| Parties | Michael SWIFT v. The STATE |
| Court | Georgia Court of Appeals |
J. S. Hutto & Associates, Randall M. Clark G. Carroll Palmatary, Brunswick, for appellant.
Glenn Thomas, Jr., Dist. Atty., Jesup, Cletus W. Bergen, II, Robert A. Barnaby, II, Law Student, Brunswick, for appellee. Syllabus Opinion by the Court
A rock festival was held on Jekyll Island during March, 1973. During two days of heavy traffic into the festival area a group of city and county law enforcement personnel conducted a roadblock so positioned on a four-lane highway that only traffic into Jekyll Island would be affected. The officials designated the roadblock as a check for drivers' licenses, inspection stickers, car registrations and runaways.
Some 1,500 cars passed through this roadblock, including the 1971 VW van owned and driven by Michael Swift, defendant. While Swift was stopped and his papers were checked, an officer walked around Swift's car and saw green vegetation on the floormat, which he identified as marijuana. Officers then searched the car and in the glove compartment found a bag of marijuana. Swift was arrested and charged with marijuana possession.
At the hearing on his motion to suppress the marijuana Swift denied that the officer had seen any vegetation on the floormat, and testified that two officers with no permission whatever opened his car door and searched the car after asking him to get out. Swift attacked the roadblock on grounds it was a mere ruse or subterfuge used to justify a general search of automobiles headed for the rock festival, and contended that there was no probable cause to search his car.
The motion to suppress was denied and defendant appeals. Held:
Should the motion of defendant to suppress evidence have been sustained? The answer to that question is resolved by deciding whether the roadblock at which he was stopped and searched was a subterfuge or was a bona fide roadblock for the purpose of checking drivers' licenses, inspection stickers on cars, etc. If it was a subterfuge, then the search was illegal and defendant's motion to suppress should have been sustained.
The trial judge held that the motion to suppress evidence be denied, and counsel for the state argues that if there is any evidence to authorize the court's finding, same should be upheld. In support it is argued that the following cases authorize such finding, to wit: Williams v. State,119 Ga.App. 557, 167 S.E.2d 756; Raines v. State, 123 Ga.App. 794, 182 S.E.2d 491; and Harris v. State, 120 Ga.App. 359, 170 S.E.2d 743. None of the cited cases holds that any evidence is sufficient to authorize the trial judge to make a finding on motion to suppress, but rather there must be sufficient evidence; and of course, the burden of showing that probable cause for the search exists is on the state. Veasey v. State, 113 Ga.App. 187, 189, 147 S.E.2d 515.
The state also contends that evidence discovered by mere observation of things in plain view does not constitute a search. The fallacy in this argument is that defendant would not have even stopped his vehicle but for the roadblock, and if the roadblock was illegal, as being a subterfuge, whatever was discovered by search or otherwise while defendant was stopped would be inadmissible as evidence. It is not contended that any of the evidence could have been seen while the vehicle was in motion. Was the roadblock set up for the principal purpose of checking inspection stickers on automobiles, drivers' licenses, etc., or was its principal purpose the discovery and seizing of illegal drugs? Let us examine the facts.
The roadblock was set up between Brunswick and Jekyll Island to coincide with the time when a rock festival was being held at Jekyll. It is a matter of common knowledge that many of the young people who attend these festivals are suspected of carrying illegal drugs thereto.
Who went to the roadblock to inspect the stickers, drivers' licenses, etc.? 1. The Chief of Police. 2. The Glynn County Drug Abuse Squad, of from one to three What an imposing array of man and beast to conduct a drivers' license and inspection sticker check!
members. 3. The Assistant District Attorney of the Brunswick Judicial Circuit. 4. An officer of the Naval Investigative Service. 5. Members of the City Police Department of Brunswick, one of whom brought his family with him. 6. The Glynn County Police Department, consisting of from 15 to 20 men, their duties including transporting prisoners away from the roadblock. 7. The Glynn County Auxiliary, which is under supervision of Glynn County Police Department. 8. A magistrate. 9. A marijuana dog, trained to smell marijuana. One witness testified the dog was present 'for the drivers' license check.' (Tr. 12).
In naming those who were present on this important occasion to check drivers' licenses, let us not overlook the only ones who customarily perform such duties. Everyone who drives a car knows that from time to time his license is checked. And who does the checking? Why, members of the State Highway Patrol, of course! And there were actually some representatives of State Highway Patrol present a part of the time during this drivers' license check. But they seemed completely disinterested, as if this was not something with which they were concerned.
The transcript, at page 13, is as follows: (Emphasis supplied).
The state contends that as some traffic cases were made, this proves the purpose of the roadblock was to make a traffic check. Not so! Of course, they made some cases for traffic violation. But they were precious few; not enough to tell how many. There were 65 arrests for illegal drugs! The troopers, who always perform these duties at a roadblock 'weren't there very much.' What would any intelligent person make of their absence and their being disinterested in the whole matter by being absent most of the time for two days? Remember, these are the very officers of the law who customarily conduct roadblocks for drivers' license and inspection sticker inspections!
Was it a subterfuge? Was the real purpose the apprehension of illegal drugs? Why was the Chief of Police present-his job is not that of conducting roadblocks for drivers' license inspection?
Why was the Glynn County Drug Abuse Squad present? Did they come out to see whether inspection stickers were on the cars or to apprehend illegal drugs, in accordance with the name of the squad under which they operate?
Why was the Assistant District Attorney present? Why was there a magistrate present? Were they there to inspect licenses and stickers? Why was there present an officer of the Naval Investigative service?
Why did the City Police Department of Brunswick appear with one member's family? Was it to see the sensational transaction of finding a driver without a license, and seeing him arrested? Could this be a source of great entertainment?
Why did the Glynn County Police Department, with 15 to 20 men appear on the scene? One witness said it was so prisoners might be transported away from the scene. Was it expected that those hapless persons without an inspection sticker would be carted off to jail? Or, if a driver's license had expired would he be immediately incarcerated?
Why did the Glynn County Auxiliary feel it necessary to come to the roadblock? And how many men were there in all? Surely this was one of the greatest checks on drivers' licenses and inspection stickers in our state's history!
Now we come to the most damaging witness in all this imposing array. Why did If the police discover some stranger in a bank at midnight-with dynamite caps and other explosives-and he explains that he is a plumber and is looking over the bank to see what will be required when he works on its plumbing-but left his plumbing tools at home-the police are very apt to disbelieve him and to think he has in mind the blowing open of the bank vault. That presents no stronger case than is here presented as to whether the roadblock in Glynn County, on March 24 and 25, 1973, was really for the purpose of checking on drugs as against the completely unreasonable and ridiculous contention that it was a roadblock, bona fide and in good faith set up to check on drivers' licenses and inspection stickers.
the marijuana dog, trained to smell marijuana, appear at the roadblock? He could smell all day long without ever smelling an expired driver's license; or the absence of an inspection sticker. He was no good at all for the alleged principal purpose, to wit: checking of licenses and inspection stickers. But if they needed help on smelling out marijuana, he was the very article they needed most, and they had him there! What a ridiculous position the state assumes. They say, 'We were not there to search for and discover and seize marijuana and illegal drugs; we were there to check licenses.' But they brought their marijuana dog with them and left their license dog-if there is such an animal-at home
What an unusual drivers' license check! A few cases-we do not know how many-were made for traffic violations, but sixty-five arrests were made for illegal drugs.
The evidence to the contrary is so overwhelming and so compelling that any finding to the effect that this was a bona fide roadblock for the purpose of checking drivers' licenses and inspection stickers should be promptly set aside. The search was illegal and the evidence sought to be suppressed in the motion should have been suppressed.
Judgment reversed.
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