Tran v. State
| Decision Date | 27 September 2000 |
| Docket Number | No. A00A0985.,A00A0985. |
| Citation | 539 S.E.2d 862,246 Ga. App. 153 |
| Parties | TRAN v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Stephen F. Mackie, Norcross, for appellant.
Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee. RUFFIN, Judge.
Tuyen Minh Tran appeals his convictions of possession of marijuana with intent to distribute and possession of cocaine with intent to distribute. Tran asserts seven enumerations of error, all of which lack merit. We therefore affirm.
Viewed in the light most favorable to the verdict, the record shows that Detective D.J. Rhodes of the DeKalb County Police Department received information from a confidential informant concerning a possible shipment of narcotics to North Carolina from a residence at 850 Ahearn Court in Suwanee, Georgia. On March 27, 1997, Rhodes passed this information on to Detective Dallas Stidd of the Norcross Police Department, who drove out to the residence that day. Stidd saw an Asian male in the yard washing a silver vehicle with a North Carolina license plate. Stidd reported this observation, along with the vehicle's tag number, to Rhodes, who checked with her informant and then confirmed that "that was the vehicle—that that was the person ... that the drugs were supposed to be going to in North Carolina."
Around 8:00 the following morning, Rhodes, Stidd, and other members of a Gwinnett County Drug Task Force set up surveillance at the residence. When the surveillance team arrived, a red car and the silver vehicle from the previous day were at the house, and a white car arrived shortly thereafter. A man later identified as Son To exited the white car and went into the house. To and another man later identified as Tran came out of the house and began loading luggage into the red car. A third man, later identified as Tri Huynh, came out of the house carrying a white plastic bag, which he placed inside the silver car. Tran and Huynh then stood in the yard with walkie-talkies that they appeared to be testing. Detective Rhodes testified that drug couriers commonly use walkie-talkies to communicate with each other on the highway.
Both cars then left the residence. Tran was driving the red car, with To as a passenger, and Huynh was driving the silver car. Both cars were driven to a nearby gas station where they were refueled. The silver car left the gas station first and entered Interstate 85 northbound, then stopped at a nearby rest stop. The red car left the gas station approximately five minutes after the silver car and also entered I-85 northbound. When the red car passed the rest stop, the silver car pulled out behind it and followed the red car from that point.
Investigator T.G. Bartik, another member of the task force who was following the cars, saw both cars change lanes without using a turn signal. Bartik relayed this information over the police radio. Deputy Paul Corso of the Gwinnett County Sheriff's Office stopped the silver car, obtained Huynh's consent to search it, and then led his drug-sniffing dog around it. The dog alerted by scratching the driver's side door, and Corso reported the alert over the police radio. Corso then opened the car and found a plastic bag behind the driver's seat that contained five large bags of suspected marijuana, three bags containing a total of 22.3 grams of cocaine, and a walkie-talkie. Corso advised over the police radio that he had found drugs in the silver car.
Meanwhile, the red car exited the interstate and headed toward Winder, Georgia. Stidd, who was tailing the red car, contacted Winder City Police, who pulled the car over. Stidd told Tran and To that they were not under arrest, but were being stopped for a traffic violation. Tran gave Stidd consent to search the car, and Stidd found a pistol belonging to To and a walkie-talkie, but no contraband. At that point, Stidd heard over the police radio that suspected contraband had been found in the silver car, and he read Tran and To their Miranda rights. Stidd asked Tran if he was traveling with any other vehicles, and Tran said no.
Investigator Bartik obtained a search warrant for 850 Ahearn Court, which, he learned, belonged to Tran. Stidd and other officers searched the house and found a safe, which Stidd opened using a key from a key ring that he had found in Tran's car. Inside the safe were 22.3 grams of cocaine, $1,300 in cash, and six empty $1000 money wrappers. In a cubbyhole in the master bedroom, police found 98.7 grams of marijuana, a scale, and several duffle bags containing marijuana residue.
Tran and Huynh were charged with one count of possession of marijuana with intent to distribute and one count of trafficking in cocaine.1 The jury found Tran guilty as charged on the marijuana count and guilty of the lesser included offense of possession of cocaine with intent to distribute.2
1. In his first enumeration of error, Tran asserts that the trial court erred in denying his motion to suppress the evidence seized in the search of his car and home. Tran contends that the traffic stop of his car was illegal and pretextual, and that the results of the subsequent searches of his car and home must be suppressed as the "fruit of the poisonous tree." Specifically, Tran argues that there is no evidence that he committed an illegal lane change or any other traffic violation that would have justified a traffic stop.
It is well settled that police may conduct a brief investigatory stop of a vehicle if they have specific, articulable facts that give rise to a reasonable suspicion of criminal conduct.3 At the hearing on the motion to suppress, Detective Stidd testified that he decided to have Tran's car stopped because of "what I observed at 850 Ahearn Court, the dog alert, changing lanes without a blinker, all of those reasons." Pretermitting whether Tran committed an illegal lane change, we agree with the trial court that the stop was justified for other reasons given by Stidd.
A confidential informant reported that drugs would be delivered to North Carolina from a specific address in Suwanee and later confirmed that the recipient was an Asian male driving a silver car with a North Carolina tag. Although there was no evidence that the informant was reliable, the police were able to corroborate significant details of the tip through surveillance.4 On the morning of the predicted trip, the police saw Tran and To pack luggage into a red car and saw Huynh place a white shopping bag from inside the house in question into the silver car. The police followed both cars as they left the house, stopped for gas, departed separately for I-85 northbound (the most logical route to North Carolina), and then joined on the highway and traveled together.
In addition to the tip, the police saw Tran and Huynh testing walkie-talkies, which are commonly used by drug couriers, in the front yard before leaving the house that morning. And, most importantly, Detective Stidd testified at the hearing on the motion to suppress that, before having the red car stopped, he heard over the police radio that a drug dog had positively alerted to the silver car. Thus, Stidd had strong reason to believe that Tran's traveling companion, Huynh, was carrying contraband.5 Under all of these circumstances, we conclude that Stidd had a reasonable suspicion that Tran was engaged in criminal drug activity, thereby justifying the stop of his car.6 Because the initial stop was valid, Tran's "fruit of the poisonous tree" argument fails.
2. The warrant authorizing the search of Tran's residence was issued based on an affidavit by Investigator Bartik, which stated that Detective Rhodes had told Gwinnett County Drug Task Force investigators that "an Asian male would be departing [850 Ahearn Court] in a vehicle with a North Carolina tag, traveling to North Carolina, transporting narcotics." The affidavit also stated that the police had surveilled the residence and seen an Asian male loading luggage and packages into the vehicle; that police had stopped the vehicle and found marijuana and cocaine inside; and that they believed there was additional marijuana and/or cocaine in the residence. Tran argues that the affidavit was deficient because it was "heavily based upon an informant of unknown reliability." We disagree.
In reviewing the sufficiency of an affidavit in support of a search warrant, we "simply ... ensure that the magistrate had a substantial basis for concluding that probable cause existed."7 Tran argues that the affidavit contains no information about the reliability of the informant. However, 8 As the affidavit stated, police corroborated details of the tip—i.e., they saw an Asian male loading luggage into a car with a North Carolina tag—through surveillance of the residence and they later found drugs in the car.9 Thus, there was a substantial basis for the magistrate's finding of probable cause.
3. Just before trial, the State informed the trial court that it could not prove that the suspected marijuana found in Huynh's car was, in fact, marijuana because the crime lab technician who tested it was unavailable and the State had failed to obtain a retest. Accordingly, the trial court granted defense counsel's motion in limine to exclude the substance from evidence. Upon request of the prosecutor, the trial court later ruled that, if a proper foundation was laid, the State's witnesses could refer to the substance because it was part of the res gestae of the offense. Thus, Deputy Corso testified that, upon searching Huynh's car, he found a plastic bag containing "a green leafy substance, which was suspected marijuana"; Detective Stidd testified that he heard Corso say over the...
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