Waters v. State
| Decision Date | 03 December 1985 |
| Docket Number | No. 70975,70975 |
| Citation | 177 Ga.App. 374,339 S.E.2d 608 |
| Parties | WATERS v. The STATE. |
| Court | Georgia Court of Appeals |
Steven E. Lister, Jonesboro, for appellant.
Robert E. Keller, Dist. Atty., David C. Marshall, Asst. Dist. Atty., for appellee.
The defendant Waters appeals from his bench trial conviction of possession of more than 28 grams of cocaine, enumerating as error the denial of his plea of former jeopardy, denial of his motion to suppress evidence, and denial of his motion for directed verdict of acquittal.
Waters was indicted for the offense of trafficking in cocaine and filed a motion to suppress evidence, which was granted by the trial court on March 15, 1983. The court found that the inquiries and search of defendant's person and automobile by a Drug Enforcement Administration (DEA) agent and other officers at the Atlanta airport, as the result of information obtained from customs officials at the Savannah airport that defendant was carrying a large amount of cash in his briefcase, were unauthorized because the State had failed to show that the initial information was obtained lawfully. This court reversed on the ground that the initial information was lawfully obtained by virtue of a permissible airport security check, and remanded the case to the trial court "for a redetermination of such relevant issues as were not addressed, including but not necessarily limited to the issue of whether at any point in the approach and ensuing interview [at the Atlanta airport] the defendant was unlawfully 'seized.' " State v. Waters, 170 Ga.App. 505, 506(2), 507, 317 S.E.2d 614 (1984).
On June 12, 1984, the trial court issued another order stating that both parties having agreed that no further evidence would be offered, it would consider the evidence in the transcript previously filed on the motion to suppress in rendering its decision as to the other issues remaining to be decided. The court found that DEA Agent Markonni recognized defendant as he deplaned in Atlanta from the information received from the Savannah law enforcement officials and approached to question him about his identification, where he had been and why he was carrying a large sum of money in his briefcase; that the subsequent conversation and explanation given by defendant led to Agent Markonni's requesting defendant's consent to search his briefcase, which defendant gave; that $21,000 was found in the briefcase along with the shell of a ballpoint pen containing a white powder substance suspected, and later proved, to be cocaine. The court further found that defendant was not at that time informed that he was under arrest, although Agent Markonni did not intend to let him leave and asked defendant if he would then consent to a search of his person, to which defendant obliged by raising his hands to allow a pat-down search; and that defendant placed his coat inside his automobile which was only a short distance from where he was standing at the time his briefcase was searched and the pat-down was conducted.
The trial court concluded that Agent Markonni had an articulable suspicion and reasonable grounds to ask to search the briefcase and defendant's person; that defendant had not been illegally detained and the questioning took place while he was free to leave or to refuse to answer questions; that defendant freely and voluntarily consented to the search of his briefcase whereby Agent Markonni obtained facts giving rise to probable cause that a crime was being committed in his presence. The court concluded further that at that time defendant was not unlawfully detained and, although he was not told he was formally under arrest, Agent Markonni was authorized to make an arrest for the offense of possession of cocaine; that having authority to make an arrest, Agent Markonni was likewise authorized to search defendant's person and his immediate surroundings, including reaching into defendant's automobile to retrieve his coat which had just been placed inside. The motion to suppress was denied and on December 11, 1984, the trial court found defendant guilty of possession of cocaine and this appeal followed. Held:
1. Defendant contends that the trial court erred in denying his plea of former jeopardy upon remand of the case, because issue had been joined when by stipulation of counsel the bench trial was held contemporaneously with the hearing on his motion to suppress. We do not agree.
The transcript of the March 1983 hearing discloses that after stipulating to the admissibility of certain evidence and personal waiver of a jury trial by appellant, the trial court stated: ...
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