Tarwid v. State, 75022

• Decision Date: 16 November 1987
• Docket Number: No. 75022,75022
• Citation: 184 Ga.App. 853,363 S.E.2d 63
• Parties: TARWID et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 63

363 S.E.2d 63

184 Ga.App. 853

TARWID et al. v. The STATE.

No. 75022.

Court of Appeals of Georgia.

Nov. 16, 1987.

John O. Wiggins, Ringgold, Julius Echeles, Chicago Ill., for appellants.

David L. Lomenick, Jr., Dist. Atty., James D. Franklin, Asst. Dist. Atty., for appellee.

POPE, Judge.

Appellants John and Robert Tarwid bring this appeal from their convictions and sentences of trafficking in cocaine. Held:

1. Appellants first contend that the trial court erred in denying their motions to suppress, which were based on the alleged illegality of the stop, detention and subsequent search of the automobile in which they were traveling. The evidence adduced at the suppression hearing showed the following: Sometime after midnight on October 30, 1986 Officer Claude Johnson of the Catoosa County Sheriff's Department received a radio transmission from Georgia State Trooper M.S. Ralston "[t]hat he [Ralston] had made a traffic stop on [the vehicle in which appellants were traveling] in another county [on I-75].... And that he had given the driver [John Tarwid] a warning citation for speeding, that the vehicle and the people in the vehicle had shown signs of trafficking [in drugs]...." Although Trooper Ralston provided no specifics as to the basis of his belief that the occupants of the car were trafficking in drugs, he did provide a description of the car and its tag number (Illinois plates), stated that he believed the car to be a rental and that his request for consent to search the car had been refused.

Officer Johnson subsequently spotted and proceeded to follow a vehicle matching the description given by Trooper Ralston. After following the car for approximately one mile, Officer Johnson turned on his blue light and, according to his testimony, the driver immediately shouldered the car and stopped. Officer Johnson further testified that he decided to stop appellants based on "[j]ust his manner of speed, wasn't driving very fast, that's an indication at that time of the morning, somebody may be going home drinking or driving the vehicle drunk." Officer Johnson estimated appellants' speed at 45-50 mph and stated that the traffic generally was moving at 60-65 mph. Officer Johnson also testified that at the time of the stop appellants were not committing any traffic violations. Officer Johnson subsequently stated that the stop was based both on appellants' low rate of speed and the information received from Officer Ralston.

After appellants stopped, Officer Johnson approached the car and asked for appellant John Tarwid's driver's license, which he immediately produced. Officer Johnson further testified that he quickly surmised that appellants were not intoxicated; nevertheless, he took the driver's license back to his patrol car to run a check on it. He subsequently asked for and received the car rental agreement and radioed in a check on that document also. While waiting to receive the information on the license and agreement, he asked appellants' consent to search the car. When they refused, he informed them "that I may be calling for a dog" and "that if ... circumstances warranted it, ... we would obtain a search warrant." Officer Johnson also testified that two other law enforcement officers, each traveling in a separate car, arrived on the scene shortly after he stopped appellants.

Officer Johnson then returned to his car to receive the information being transmitted to him on the document checks; however, before he could receive that information, one of the other officers on the scene approached his car and informed him that verbal consent to search the car had been obtained. A written consent to search was also obtained. The search of the car yielded 4 packages containing approximately nine pounds of cocaine.

We first consider appellants' arguments concerning the legality of the stop of their vehicle by Officer Johnson. "Although an officer may conduct a brief investigative stop of a vehicle, see Delaware v. Prouse, 440 U.S. 648 (99 SC 1391, 59 LEd2d 660) (1979), such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, Terry v. Ohio, 392 U.S. 1, 27 (88 SC 1868, 1883, 20 LEd2d 889, 909) (1968); United States v. Brignoni-Ponce, 422 U.S. 873 (95 SC 2574, 45 LEd2d 607) (1975). Investigative stops of vehicles are analogous to Terry-stops, Terry, supra, and are invalid if based upon only unparticularized suspicion or hunch, 392 U.S. at 27 (88 SC at 1883, 20 LEd2d at 909). United States v. Smith, 799 F2d 704, 707 (11th Cir.1986). An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (Cits.) United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981)." (Punctuation omitted.) Evans v. State, 183 Ga. App. 436, 438, 359 S.E.2d 174 (1987).

We first consider whether Officer Johnson's suspicion that appellant John Tarwid was driving under the influence constitutes the necessary basis for the stop in the present case. In this regard, we find the court's analysis in United States v. Smith, 799 F.2d 704, supra, to be particularly instructive. In Smith, in addition to Trooper Vogel's testimony that he stopped appellants, who were subsequently convicted of possession of cocaine with intent to distribute, on the basis of the drug courier profile, there was also evidence that appellants were weaving prior to the stop. In addressing the issue of whether Officer Vogel could have conducted a Terry-stop to investigate the possibility of drunk driving, the court stated that "in determining when an investigatory stop is unreasonably pretextual, the proper inquiry ... is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose." Id. at 709.

Applying this analysis to the present case, we are forced to conclude that the stop here was similarly pretextual. First, we note that by Officer Johnson's own account appellants were traveling only slightly under the posted maximum speed limit. And, although he also testified that traffic in general was traveling in excess of that limit, those persons, unlike appellants, presumably had not just received a warning citation for...