Garmon v. State

510 S.E.2d 350, 235 Ga. App. 671, 99 Fulton County D. Rep. 319, 1998 Ga. App. LEXIS 1585

• Court: Court of Appeals of Georgia
• Decided: December 4, 1998
• Docket: A98A1649
• Status: Published

Opinions

Pope, Presiding Judge.

Following a bench trial, the trial court convicted Sammy Garmon of trafficking in methamphetamine. Garmon appeals, challenging the denial of his motion to suppress evidence of the methamphetamine and the sufficiency of the evidence supporting his conviction. We conclude that the court properly denied Garmon’s motion to suppress, that the evidence was sufficient to convict, and we affirm.

1. As grounds for his motion to suppress, Garmon asserted that police obtained evidence of the methamphetamine following an arrest not supported by probable cause. In addressing this assertion, we construe the evidence in the light most favorable to the trial court’s decision. Sawyer v. State, 227 Ga. App. 493, 494 (2) (489 SE2d 518) (1997).

Viewed in this light, the evidence reveals that in July 1995, a Douglas County Jail inmate informed Investigator Mike Howell of the Douglas County Sheriff’s Department that a man called “Speed” had sold methamphetamine to another individual. The informant told Howell he believed “Speed’s” real name was Sammy Garmon and that he drove a black Chevrolet truck. Howell testified that after investigating the information, he also learned that Garmon “may be an acquaintance” of another individual who purportedly was a methamphetamine dealer.

Howell investigated the information and, in August 1995, obtained a photograph of Garmon from police files relating to a prior driving under the influence arrest. In mid-August, Howell and another investigator saw the black Chevrolet truck registered to Garmon outside a pool hall. The investigators entered the pool hall where they observed Garmon conduct what appeared to be a hand-to-hand drug transaction. The investigators did not further explore the apparent transaction, however, and according to Howell his investigation of Garmon ceased a short time later.

In an unrelated investigation into an illegal sports betting operation, Howell obtained a wiretap warrant to monitor phone calls made to the residence of an individual named Michael Wilson. During the wiretap investigation, which began on December 20, 1995, the officers overheard conversations which indicated a person named “Sammy” was participating in illegal gambling and narcotics activity. Howell testified regarding the specifics of several conversations which involved “Sammy’s” drug and gambling activities. Specifically, on one occasion an individual called the house asking if Wilson had any “white stuff,” and Wilson responded that “he would have to wait until Sammy called him back.” During approximately three other phone calls, the speakers stated that Sammy had won or lost a certain amount of money.

On December 29, Howell obtained a search warrant for Wilson’s house to obtain evidence of crimes involving gambling and controlled substances, specifically documents, records, notes, recordings, controlled substances, U. S. currency, and telephone billing records. In the six-page affidavit attached to the warrant, Howell detailed the mechanics of the gambling operation, the details of which he had learned through monitoring phone calls to Wilson’s residence. The affidavit listed several individuals who were involved in the sports betting operation and detailed the volume of activity — 9,000 calls in a two-month period — as well as other signs of gambling activity which Howell had observed. Howell’s affidavit also stated that he believed “controlled substances may be found as well because during monitored conversations Wilson has stated that he enjoys consuming marijuana.” Howell stated that he believed “that such information will be presently located at the above residence because this weekend there are going to be several professional and college football games to be played between now and 1/2/96.” Howell’s affidavit set forth the need for a “no-knock” warrant; he explained that “[i]n a case such as this, documents and records are easily and quickly destroyed by means of fire. Sometimes gambling records are kept on special paper that burns easily, based on what Affiant has been told by other officers experienced in such investigations. Items can be flushed down the toilet.”

On December 30, a couple of days before Garmon’s arrest, the Douglas County Sheriff’s Department set up a surveillance on Michael Wilson’s residence and observed a truck parked in Wilson’s driveway. When officers ran the tag on the truck, they learned it was registered to a man who sold methamphetamine.

The officers’ plan was to execute the search warrant on the evening of January 2, 1996. The raid was planned to coincide with the National Championship Football Game, one of the largest betting games of the year, which was also scheduled for that night. At about 8:15 p.m. on January 2, before the search warrant was executed, the officers were monitoring the wiretap on Wilson’s phone and overheard a conversation between “Sammy” and “Dan” in which the men were talking about gambling and drugs. The officers had previously received information from the IRS that “Sammy” was Sammy Joe Garmon and “Dan” was Dan Boone. According to Howell, in the January 2 phone conversation “Sammy” and “Dan” made a side bet. About ten minutes after hearing that conversation, Howell arrived at Wilson’s residence and set up surveillance on Wilson’s home. Three to five minutes after Howell got to Wilson’s residence, he saw an unidentified man (later identified as Garmon) and woman leave the house and get into a pickup truck.

Howell testified that “[d]ue to the fact that they were in the process of getting everybody together to do the search warrant execution, we were stopping the vehicles that were leaving the house.” Accordingly, Howell instructed another investigator, Deputy Bearden, to follow the man and woman, perform a “traffic stop” on the vehicle, and detain its occupants. Bearden began following the car, but because Bearden was in an undercover car, it was necessary for him to call for a patrol car to actually stop the truck. The truck was stopped approximately two miles from Wilson’s home, and Bearden approached the vehicle. Upon approaching the pickup truck, Bearden noticed that the driver’s “eyes were very glassy, and his speech was slurred.” Bearden did not smell any alcohol and suspected that the driver was under the influence of drugs. Bearden testified, however, that the driver was not speeding or weaving and that he was not investigating the driver for driving under the influence. Bearden asked the driver for a license and insurance card, both of which identified the driver as Sammy Garmon. When Bearden notified Howell that Garmon was the driver, Howell responded that he “had information on [Garmon] that [Garmon] was a meth dealer, and [Bearden] needed to check him pretty close.”

Following Bearden’s conversation with Howell, Bearden asked Garmon if he would give consent to a search of the vehicle. Although Garmon initially said “yes,” he immediately changed his answer to “no.” Bearden then called a canine unit to perform a “free air search around the vehicle.” While they were waiting for the canine unit, Bearden patted down Garmon for safety reasons. During his pat-down, Bearden discovered what appeared to be two gambling sheets in Garmon’s left back pocket, $8,417 in his right front pocket, along with a knife or some knives.

Approximately five minutes later the canine unit arrived, and after walking around the pickup truck, the dog signaled the possible presence of drugs near the driver’s side door. The dog’s handler then opened the passenger side door, and the dog alerted on a tissue box located on the passenger side floorboard. The officers looked in the box and found a rocky, powdery substance that they suspected was a narcotic. Bearden asked Garmon if the substance was methamphetamine, and Garmon responded affirmatively.

Following the discovery of the methamphetamine, the officers placed Garmon and his female passenger, Patricia Garrett, in the back of a patrol car. Upon searching Garrett’s pocketbook, Bearden found a sock containing some loose methamphetamine and syringes.

After being charged with trafficking in methamphetamine, Garmon moved to suppress the evidence obtained following the stop. Here he argues that the court improperly denied the motion to suppress in that: the initial stop by Deputy Bearden was improper and that the officers’ subsequent actions in detaining Garmon and having him exit his vehicle were improper. We find that the initial stop by Deputy Bearden was justified; that the officers’ subsequent actions were also justified; and that the trial court’s denial of the motion to suppress was proper.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.” (Citations and punctuation omitted.) Fritzius v. State, 225 Ga. App. 642, 644 (484 SE2d 743) (1997).

Although we were unable to locate Georgia cases which involved identical facts, several cases guide our inquiry into the validity of the warrantless search here. Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981), arose after police officers, who were about to execute a search warrant on a house, saw the resident of the house, Summers, leaving the premises. The officers detained Summers during the search and, after finding contraband in the house, arrested him. During a search of Summers’ person, the officers found additional contraband. Summers moved to suppress evidence of the contraband found-on his person, arguing that the detention and search violated his Fourth Amendment rights. Although the trial court agreed and suppressed the evidence, the United States Supreme Court reversed, concluding that the officers were permitted to detain Summers while they searched his home.

In concluding that the detention was justified, the Supreme Court stated that their assessment focused on both the law enforcement interest and the nature of the articulable facts supporting the detention. The court stated that the legitimate law enforcement interest in preventing flight, the interest in minimizing the risk of harm to officers, and the interest in preventing destruction of evidence were among the law enforcement interests at issue. Michigan v. Summers, 452 U. S. 702-703. The Supreme Court then discussed the nature of the articulable and individualized suspicion on which the police base the detention of the occupant of a home subject to a search warrant, stating: “[t]he existence of a search warrant, however, also provides an objective justification for the detention. A judicial officer has determined that police have probable cause to believe that someone in the home is committing a crime. . . . The connection of an occupant to that home gives the police officer an easily identifiable and certain basis for determining that suspicion of criminal activity justifies a detention of that occupant.” (Emphasis supplied.) Id. at 703-704.

In Fritzius v. State, 225 Ga. App. 642, the validity of a warrant-less search in light of a warrant which had been issued for a home was also at issue. In Fritzius, a police narcotics unit was preparing to execute a search warrant for drug violations on a mobile home occupied by a man named Henry Fallaw. As the warrant was about to be executed, an officer observed two men leave the home, enter a vehicle and drive away. An officer was instructed to stop the vehicle and “find out if Fallaw, who was named in the warrant, was in the car.” Id. at 644. Accordingly, the officer stopped the vehicle approximately two miles away from the home and subsequently discovered contraband in the car. Fallaw was the driver of the car. Fritzius, the passenger and the vehicle owner, moved to suppress evidence of the contraband on the ground that it was the fruit of an unlawful stop. The trial court denied Fritzius’ motion to suppress the evidence, and this Court affirmed.

Citing Michigan v. Summers, 452 U. S. 692, the Fritzius court stated: “[w]hen a person is leaving a premises which is about to be searched pursuant to a warrant, a brief, momentary detention by law enforcement personnel is permitted when supported by articulable suspicion or probable cause.” Fritzius v. State, 225 Ga. App. at 644. The court analyzed Summers, applied it to the facts of the case, and stated: “[i]n determining whether a search or seizure is constitutionally prohibited, the ultimate test for the validity of the police’s conduct is whether, under the circumstances then confronting the police, their conduct was reasonable within the meaning of the Fourth Amendment. It would appear reasonable within the meaning of the Fourth and Fourteenth Amendments for a police officer, knowing that certain persons and premises were the subject of the immediate execution of a search warrant, to detain temporarily a vehicle containing occupants who had just departed the premises to be searched in order to identify the occupants and to see if one of them was a person named in the warrant. Under such circumstances, the detention would be minimally intrusive and neither an arbitrary nor capricious exercise of police power.” (Citations, punctuation and emphasis omitted.) Id. at 646.

Also relevant to our inquiry is Terry v. Ohio, 392 U. S. 1, 23 (88 SC 1868, 20 LE2d 889) (1968), which focuses on the “articulable suspicion” element of the inquiry which was discussed in Michigan v. Summers. In Terry, the court stated: “[m]omentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” (Citations and punctuation omitted.) Fritzius v. State, 225 Ga. App. at 643.

In the instant case, it was reasonable within the meaning of the Fourth and Fourteenth Amendments for the officers, knowing that Wilson’s premises were to be the subject of the immediate execution of a search warrant, to detain temporarily the vehicle containing Garmon in order to identify the occupants and see if one of them was the person they had just overheard discussing gambling and drugs on the phone. In light of the fact that the warrant was issued for January 2 — specifically because of the volume of gambling that would occur on that day, it was reasonable to follow the car from the house. Under such circumstances, the detention was minimally intrusive and was neither an arbitrary nor capricious exercise of police power. See Bales v. State, 216 Ga. App. 856 (456 SE2d 112) (1995); Setser v. State, 209 Ga. App. 57, 58 (1) (432 SE2d 652) (1993); compare State v. Crank, 212 Ga. App. 246, 249 (441 SE2d 531) (1994). Both the law enforcement interest in preventing the destruction of evidence and the nature of the articulable facts supporting the detention establish that the stop was proper.

The officers’ actions subsequent to the stop were also justified. Officer Bearden’s pat-down of Garmon was reasonable and justified under the circumstances. See generally Davis v. State, 232 Ga. App. 450, 451 (501 SE2d 241) (1998). Additionally, the “free air search” was supported by articulable suspicion: Garmon had just left Wilson’s residence, and once Bearden ascertained Garmon’s identity, the earlier investigation of Garmon’s involvement in methamphetamine gave the officer additional reasonable articulable suspicion. See Pitts v. State, 221 Ga. App. 309, 311 (2) (471 SE2d 270) (1996); Fritzius v. State, 225 Ga. App. at 646 (“the existence of an articulable suspicion can be based on the collective knowledge of law enforcement officials” and “the detaining officer was entitled to rely on the information given him by a fellow officer in the formation of an articulable suspicion”).

2. Garmon also asserts that notwithstanding any error in the trial court’s denial of his motion to suppress, there was insufficient evidence to establish that he possessed the methamphetamine found in his truck. Garmon contends that the evidence showed that his passenger, Patricia Garrett, had equal access to the contraband and that the trial court therefore erred in denying his motion for directed verdict. Again, we disagree.

“ ‘The equal access rule, entitling a defendant to acquittal where evidence is presented that others had equal access to a vehicle or that the vehicle had recently been used by others, applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of the vehicle.’ ” (Emphasis in original.) Pittman v. State, 208 Ga. App. 211, 214 (2) (430 SE2d 141) (1993).

In the instant case, Garmon’s possession of the truck was not the sole evidence that he possessed the methamphetamine found in the vehicle. Rather, evidence showed that Garmon possessed over $8,000 in cash when he was stopped and that he identified the substance as methamphetamine when asked by Deputy Bearden. Under these circumstances, it was for the factfinder to determine whether Garmon possessed the contraband.

Judgment affirmed.

Andrews, C. J., and Eldridge, J., concur. Beasley, J., concurs specially. McMurray, P. J., and Ruffin, J., dissent. Blackburn, J., not participating.