Brooker v. State

298 S.E.2d 48, 164 Ga. App. 775, 1982 Ga. App. LEXIS 3346
Court of Appeals of Georgia·Decided November 23, 1982·No. 64909·Published·Cited by 20 cases

Opinion

Quillian, Chief Judge.

The defendant, Lee C. Brooker, appeals his conviction for possession of more than one ounce of marijuana in violation of the Georgia Controlled Substances Act. Held:

1. The defendant moved to suppress marijuana found in his two suitcases following a conversation between Brooker and DEA Agent Markonni. Agent Markonni, a DEA agent on duty at the Atlanta International Airport on October 10, 1981, observed defendant Brooker deplane from an incoming Delta flight from West Palm Beach, Florida. Markonni saw Brooker approach the Delta ticket counter and inquire about a connecting flight to Seattle. Agent Markonni decided to see what was on the ticket surrendered by Brooker. The name on the ticket was Lee Brooker and it had two baggage claim checks attached to his envelope. He asked the Delta reservation clerk to call up the computer display which showed that the ticket cost $541 and was paid for in cash. The reservation was made approximately 12 hours before departure time. A reservation call-back number was given and a call to that number was not answered. Brooker’s final destination was Anchorage, Alaska. West Palm Beach was a drug source city and in a discussion with west coast DEA agents, Markonni had learned that Anchorage had become a “hot spot” for drugs. Markonni decided, from his training and experience, and use of the known characteristics of the Drug Courier Profile, that he should have a talk with Brooker.

Markonni was casually dressed, not in uniform, and although he was carrying a weapon it was not visible. He sat down beside Brooker and showed him his identification as a Federal officer. “He appeared to look startled when I identified myself.” Markonni asked Brooker’s name and for identification. Brooker identified himself with an Alaska driver’s license. Markonni asked him how long he had been in West Palrii Beach. Brooker stated that he had been there a week on a pleasure trip. Markonni thanked him and walked away, but out of the corner of his eye saw Brooker continuing to look at him. Markonni thought that perhaps he had cut the interview too short and that perhaps Brooker was more than just a little nervous. At this point Markonni decided to look at Brooker’s luggage. He testified that you can tell a lot about a drug courier’s luggage. They will not place drugs in a folding garment bag nor will they use a flimsy piece of luggage. Markonni sought out the chief Delta baggage agent and advised him he was looking for two suitcases belonging to Brooker and they were on the incoming flight from West Palm Beach and being rerouted to Seattle and Anchorage. The agent pointed out the cart that they [776] would be on and he looked inside. He saw two large new Samsonite suitcases. Each had the defendant’s name on the identification label. He placed his nose on the seam of both closed suitcases and smelled the unmistakable odor of marijuana. He told the Delta agent to take both suitcases and keep them in his custody.

Markonni again spoke to Brooker and asked for his consent to search both of the suitcases. Brooker asked him if he was going to search them anyway and Markonni then read him his rights from a card. Brooker refused to consent to the search and Markonni arrested him. Brooker and his bags were taken to the Clayton County jail and Markonni obtained a search warrant for the suitcases. Seven large packages of compressed marijuana were found inside — which weighed approximately 67 pounds and 10 ounces in gross weight — which included the packaging.

“ ‘In all situations the officer is entitled to assess the facts in light of his experience.’ ” United States v. Mendenhall, 446 U. S. 544, 564 (100 SC 1870, 64 LE2d 497). The reasonable suspicion engendered in a trained law enforcement officer frequently arises from conduct which would appear to be innocent to the untrained observer. Brown v. Texas, 443 U. S. 47 (99 SC 2637, 61 LE2d 357). Thus, use of the DEA developed Drug Courier Profile can provide sufficient articulable and reasonable suspicion to authorize a “Terry-type” stop. United States v. Mendenhall, 446 U. S. 544 at 562-563. The first encounter took place in the airport concourse. The agent wore no uniform and displayed no weapon. He did not summon defendant to him but casually approached the defendant where he sat and identified himself. His brief questioning was restricted solely to the circumstances which provoked the suspicion. United States v. Brignoni-Ponce, 422 U. S. 873, 881 (95 SC 2574, 45 LE2d 607). “Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest.” United States v. Mendenhall, 446 U. S. 544, 555, supra.

Markonni was in a place where he was authorized to be when he examined Brooker’s luggage. A law enforcement officer is expected to use all of his senses in an attempt to gain knowledge of the commission of a crime. Lynn v. State, 130 Ga. App. 646 (1) (204 SE2d 346). “Hence, odor as well as sight, hearing, taste or touch can be used in establishing probable cause.” Berry v. State, 163 Ga. App. 705, 708 (294 SE2d 562). The U. S. Supreme Court held “[i]f the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive [777] character.” Johnson v. United States, 333 U. S. 10, I (68 SC 367, 92 LE 436).

This Court has decided that “[a]¡though there is some controversy as to whether or not the odor of burning marijuana by itself supplies sufficient probable cause for a search or an arrest [cits.] all opinions of this court are in agreement that ‘it may be considered and may be a part of a totality of circumstances sufficient to validate one.’ ” State v. Medders, 153 Ga. App. 680, 681 (266 SE2d 331); accord: Dickson v. State, 124 Ga. App. 406 (184 SE2d 37); Rogers v. State, 131 Ga. App. 136 (3) (205 SE2d 901); Culpepper v. State, 132 Ga. App. 733 (1) (209 SE2d 18); Yawn v. State, 134 Ga. App. 77 (4) (213 SE2d 178). We reached this conclusion because “[p]robable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction.” Cook v. State, 136 Ga. App. 908, 909 (222 SE2d 656). Under the totality of circumstances here, the reasonable suspicion arising from defendant’s actions matching the known characteristics of the Drug Courier Profile, and the positive identification of the unmistakable odor of marijuana, Markonni had probable cause for concluding the defendant was in possession of marijuana — in violation of the Georgia Controlled Substances Act. Berry v. State, 163 Ga. App. 705, supra. We find that probable cause existed for the search warrant and the trial court did not err in denying defendant’s motion to suppress.

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Brooker v. State, 298 S.E.2d 48, 164 Ga. App. 775, 1982 Ga. App. LEXIS 3346 (Ga. Ct. App. 1982).

298 S.E.2d 48 (Brooker v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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