Franklin v. State

237 S.E.2d 425, 143 Ga. App. 3, 1977 Ga. App. LEXIS 2170

• Court: Court of Appeals of Georgia
• Decided: July 1, 1977
• Docket: 53600
• Status: Published

Opinions

Banke, Judge.

The defendant was indicted for violation of the Georgia Controlled Substances Act after being found in possession of nearly three thousand pounds of marijuana. The defendant moved to suppress the evidence as the fruit of an illegal arrest. He now appeals from the trial court’s dismissal of his motion to suppress.

The defendant was the pilot of a plane which was importing marijuana into the United States. The plane became lost in bad weather and landed at Anniston, Alabama. Before leaving the Anniston airport, the defendant aroused the authorities’ suspicion as to the nature of his cargo, and local police attempted unsuccessfully to stop him before he hastily returned to the skies, bound for Atlanta.

Georgia authorities were notified of the plane’s approach, and a radio call went out to Fulton County police officers near the Charlie Brown Airport to hold the plane for authorities in Alabama.

Police officers arrived at the airport moments before the defendant’s plane landed, blocked the taxiway, and, armed with shotguns, awaited the defendant’s arrival. When the defendant landed and neared their cars, he was ordered to get out of the plane. While he was doing so, officers saw the marijuana inside the plane and, according to their version of the facts, arrested the defendant at that time.

The defendant contends that when his vehicle’s motion was blocked by police cars and he was accosted by officers armed with shotguns an arrest had already occurred. It is the state’s contention that the defendant was not arrested until after the officers saw his cargo and that the armed blockage of the taxiway amounted merely to an "investigatory stop,” as allowed by Terry v. Ohio, 392 U. S. 1 (1968). Because probable cause for an arrest did not exist until the marijuana was actually spotted inside the plane, we must determine whether sufficient evidence existed for a determination by the trial judge that the defendant’s initial confrontation with the police was in the context of a Terry stop.

1. The defendant landed in Anniston in a World War II vintage aircraft of a type known to be regularly used in drug trafficking. He landed without contacting the control tower, as is customary, and drove his aircraft much faster than is normal on the ramp. He refused to disembark from the plane when asked to do so by Anniston police and took off rapidly, without going through the customary aircraft pre-flight checklist. Based on these observations, Anniston police had an articulable suspicion that contraband was present in the aircraft and thus had the right to detain the defendant for questioning under Terry.

The defendant’s plane was followed on radar from Anniston to Atlanta. As Fulton County policemen were approaching Charlie Brown Airport, they were notified by radio that the aircraft had dropped off radar at Hartsfield Airport and appeared to have landed. An officer arrived at the Charlie Brown Airport to see a plane make a low sweep without setting down. There is evidence from which the trial judge could find that the defendant’s aircraft was sufficiently determined by Fulton County police to be that which departed from Anniston. Because Anniston officials had sufficient cause to stop the plane under Terry, Fulton County police who were notified by radio to hold the plane for Alabama authorities also had sufficient reason to effect a Terry stop. Silas v. State, 133 Ga. App. 560 (1) (211 SE2d 609) (1974); Quinn v. State, 132 Ga. App. 395 (1) (208 SE2d 263) (1974).

2. Time of arrest is a question of fact which depends upon an evaluation of the testimony by the trial judge. Rios v. United States, 364 U. S. 253, 262 (1960). There is evidence to support the trial judge’s finding that an arrest did not occur until the police saw marijuana in plain view. "Factual and credibility determinations of this sort made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous. See Lego v. Twomey, 404 U. S. 477 (92 SC 619, 30 LE2d 618) (1972), and United States v. Watson, 469 F2d 362 (5th Cir. 1972).” Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974).

Blocking the plane with police cars was a reasonable manner of stopping it under the circumstances, considering the possibility of flight by the defendant in a highly mobile aircraft. An investigatory stop is not automatically an arrest simply because an officer is armed with a shotgun. United States v. Worthington, 544 F2d 1275 (5th Cir. 1977); United States v. Maslanka, 501 F2d 208, 213, n. 10 (5th Cir. 1974). It is often necessary for the police to approach a person with a drawn weapon in a suspiciously dangerous situation in order to protect the physical well-being of both police officers and the public. In fact, in a situation very similar to that sub judice, the United States Court of Appeals for the Fifth Circuit recently held that officers acted reasonably in stopping a pilot suspected of transporting marijuana by blocking his plane and ordering him at riflepoint to disembark. United States v. Worthington, supra. The officers’ actions in the case at bar in merely holding shotguns is certainly less offensive than in Worthington, where a high-powered rifle was aimed at the pilot.

The Fourth and Fourteenth Amendments to the Constitution prohibit only unreasonable searches and seizures. Is a seizure unreasonable simply because the police have taken the precaution to arm themselves in light of unknown danger? We are not prepared so to hold. If we were to reach a contrary result, law enforcement officers would be required to risk their lives by not drawing weapons until drawn upon, unless a hasty legal analysis convinced them that probable cause existed for an arrest.

From Holtzendorf v. State, 125 Ga. App. 747, 750 (188 SE2d 879) (1972), the defendant quotes, "It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized’ that person.” With this statement we have no quarrel; the defendant was "seized” by Fulton County officers when his aircraft’s passage was blocked. The Holtzendorf quote was taken verbatim from Terry v. Ohio, supra, another case where a defendant was seized. However, the court in Terry proceeded to hold that the seizure was not unreasonable under the Fourth Amendment — as we have done here. Therefore, the quote from Holtzendorf does not support the defendant’s contention that he was necessarily illegally arrested.

Argued March 8, 1977 Decided July 1, 1977 Rehearing denied July 19, 1977 Chambers, Siefferman, Robinson & Cooper, Floyd E. Siefferman, Jr., for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Donald J. Stein, R. David Petersen, Assistant District Attorneys, for appellee.

The holding of this court in Kelly v. State, 129 Ga. App. 131 (2) (198 SE2d 910) (1973), does not conflict with our finding that no arrest occurred prior to discovery of the marijuana. In Division 2 of Kelly this court simply held that there was no "articulable suspicion” to support a Terry stop of the defendant’s automobile.

Judgment affirmed.

Bell, C. J., Deen, P. J., Marshall and McMurray, JJ., concur. Webb, J., concurs in the judgment only. Quillian, P. J., and Shulman, J., dissent. Smith, J., disqualified.