Yocham v. State

• Decision Date: 22 February 1983
• Docket Number: No. 64702,64702
• Citation: 165 Ga.App. 650,302 S.E.2d 390
• Parties: YOCHAM v. The STATE.
• Court: Georgia Court of Appeals

Page 390

302 S.E.2d 390

165 Ga.App. 650

YOCHAM v. The STATE.

No. 64702.

Court of Appeals of Georgia.

Feb. 22, 1983.

Rehearing Denied March 8, 1983.

T. Michael Martin, Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., Steven E. Lister, Asst. Dist. Atty., for appellee.

DEEN, Presiding Judge.

Appellant brings this appeal from judgment based on his January 1982 conviction of a violation of Schedule II of the Georgia Controlled Substances Act, for which he was sentenced to ten years in the state penitentiary. Appellant, while bound from Miami to Tulsa on the return leg of a 24-hour round trip, was questioned by a Drug Enforcement Administration agent in the Atlanta International Airport concerning possible drug possession, and denied having drugs either on his person or in his two pieces of checked luggage. After appellant was allowed to proceed on his journey, certain events prompted the DEA agent to obtain a search warrant for the luggage, which when opened was found to contain more than 10,000 capsules of methaqualone. Appellant enumerates as error the trial court's denial of appellant's motion to suppress items seized pursuant to a search warrant allegedly issued without probable cause. Held:

1. The airport stop of appellant by a DEA agent did not constitute a seizure of his person within the meaning of the Fourth Amendment. The Fourth Amendment's proscription of unreasonable searches and seizures is by no means intended to eliminate all police-citizen contact. United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497) (1980). A police-citizen encounter can be characterized as a "seizure" only if the police officer, by force or other show of authority, in some way restrains the citizen's liberty. Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1878-1879, 20 L.Ed.2d 889) (1968). In the case sub judice appellant freely consented to conversing with the agent after the latter had presented his credentials. The agent made no show of force, and his manner was completely non-coercive. He did not ask appellant to move from where he was sitting, and after the appellant refused consent to a search of his person and luggage, the agent terminated the conversation and walked away, leaving appellant free to board his connecting flight. Compare United States v. Berry, 670 F.2d 583 (5th Cir. 1982). A seizure occurs only when there has been a significant intrusion upon an individual's right to determine whether to converse and move about, United States v. Berry, supra, or when a reasonable person would think he was not free to leave. United States v. Mendenhall, supra, 446 U.S. at 554, 100 S.Ct. at 1877. Compare State v. Reid, 247 Ga. 445, 276 S.E.2d 617 (1981); McShan v. State, 155 Ga.App. 518, 271 S.E.2d 659 (1980). No such intrusion occurred here; therefore, there was no seizure. If there is no seizure, there is no violation of a Fourth Amendment right. Compare Bothwell v. State, 250 Ga. 573, 300 S.E.2d 126 (1983); McAdoo v. State, 164 Ga.App. 23, 295 S.E.2d 114 (1982).

2. The Drug Enforcement Administration agent's interception of appellant's luggage did not constitute a "search or seizure" within the meaning of the Fourth Amendment. While one has a right under the Fourth Amendment to expect privacy of the contents of one's luggage, this right does not extend to the bags' exterior or to control of who actually handles them once they have been released to the custody of the airline. United States v. Goldstein, 635 F.2d 356 (5th Cir.), cert. denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981). Having the bags removed from the baggage cart pending further investigation was not an unreasonable seizure under the rationale of United States v. Klein, 626 F.2d 22, 26 (7th Cir., 1980) (bags detained pending arrival of a dog trained in drug detection); nor was the agent's action in lifting the suitcase to assess its weight.

Furthermore, the circumstances were such as to give rise to a reasonable suspicion that would justify detention of the bags. Although the correspondence of a person's appearance or actions to certain characteristics of the "drug courier profile" is not alone sufficient to create reasonable suspicion, Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890) (1980), courts should give due consideration to the role of experience in a police officer's interpreting certain facts or occurrences. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607) (1975); Terry v. Ohio, supra; United States v. Berry, supra. In this case appellant's correspondence to the profile (arrival in the early morning from a source city, dress indicating that he was not a businessman, rapid "turn-around time," extreme nervousness) was enhanced by his rushing into the restroom immediately after termination of the conversation with the agent and instantly flushing a toilet before sufficient time for a normal use had elapsed--this taking place only minutes after appellant had been observed spending a full ten minutes in the same restroom. It does not place undue emphasis upon appellant's lavatory habits to note that emergency disposal of small quantities of contraband substances via airport plumbing was a practice the DEA agent had frequently observed in the course of his experience. Thus it was not an isolated "characteristic" or a fortuitous combination thereof, much less an "inchoate and unparticularized suspicion or 'hunch,' " Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. at 1883, that prompted the agent to examine the exterior of appellant's luggage; rather, it was a concatenation of factors that his experience had led him to associate with drug activity. Therefore, even if we had not held, supra, that interception of the luggage was not a seizure, the evidence shows that the agent had adequate grounds for reasonable and articulable suspicion.

3. In the circumstances of the case, there was probable cause for issuance of a search warrant. Probable cause means less than a certainty but more than mere suspicion or possibility. Brown v. State, 151 Ga.App. 830, 261 S.E.2d 717 (1979). Mere speculation, rumor, or opinion is not enough; there must be reasonable grounds after inquiry. Wood v. State, 126 Ga.App. 423, 190 S.E.2d 828 (1972). Furthermore, determination of whether there is probable cause for issuance of a search warrant must be made not by the police officer but by the magistrate. Smoot v. State, 160 Ga. 744, 128 S.E. 909 (1925). The officer must place before the magistrate sufficient facts to enable the latter to make his own determination and not merely adopt the conclusions of the police officer. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723) (1964); Campbell v. State, 226 Ga. 883, 178 S.E.2d 257 (1970). The totality of circumstances in a given case may be sufficient to create...