Jamison v. State

405 S.E.2d 82, 199 Ga. App. 401, 1991 Ga. App. LEXIS 479

• Court: Court of Appeals of Georgia
• Decided: March 12, 1991
• Docket: A90A1626
• Status: Published

Opinions

McMurray, Presiding Judge.

Defendant filed a motion to suppress after he was indicted for the offense of trafficking in cocaine. The evidence adduced at a hearing on the motion to suppress revealed the following:

On September 5, 1989, Agent Terrell Toles, an experienced law enforcement officer assigned to the Drug Enforcement Administration Task Force (“DEA”), and DEA Agents “Souza and Barnes” were on duty at Atlanta’s Hartsfield International Airport, monitoring “inbound and outbound flights looking for either drugs or contraband or money derived from drugs and contraband going through the airport.” The agents were wearing casual clothing (“jeans, tennis shoes, a tee shirt”) and they displayed no weapons. At about 7:45 that morning Agent Toles observed defendant and Karl Jamison deplane a flight from Miami, Florida, a “major drug source [city].” Agent Toles noticed defendant and Karl Jamison because they were wearing clothing commonly used by drug traffickers to conceal contraband on their bodies, i.e., “baggy clothes, baggy jean type pants and baggy loose fitting shirts with the shirttails hanging out over the crotch area.” Agent Toles overheard either defendant or Karl Jamison “ask for connecting flight information to Columbia, South Carolina.” He then watched the men walking towards the area of their connecting flight. Agent Toles went to an airline’s computer and “brought up a reservation record for [defendant and Karl Jamison] and . . . discovered . . . that they were both paid for with cash and that they were both one way reservations. [He also discovered that there] was no telephone call back listed on the reservation record [and that] the reservations had been made just a few hours prior to the flight’s departure from Miami.” This information aroused Agent Toles’ suspicion because drug couriers most commonly make one-way flight reservations a few hours before departure, they generally leave no telephone call back number and they most often complete the transactions with cash. This method of travel makes drug traffickers less “traceable ...” and enables them to be available upon a moment’s notice to “complete their drug transaction.”

Agent Toles informed Agents Souza and Barnes “as to what [he] found out from the computer record and [he] informed them that [he] was going to attempt to interview [the suspects].” The agents went to the area of Karl Jamison’s and defendant’s connecting flight and they “spotted the [suspects] as they were walking down B Concourse towards the gate that they were to depart from.” The agents approached defendant and Karl Jamison “[f]rom the front” and, as they “got close to them[, the suspects] walked inside the men’s rest room.” Agent Toles followed them into the rest room and observed Karl Jamison “at one of the urinals . . . and . . . watched [defendant] enter one of the stalls on the other side of the rest room.” Agent Toles went inside a nearby bathroom stall so that he could “hear anything that [defendant] might be doing. . . The agent did not notice any sounds from defendant’s stall that were consistent with the use of rest room facilities and this led him to suspect that defendant entered the stall in order to check “himself to make sure that if he was concealing anything inside his clothes that it was straight and secure and wouldn’t fall out of his pants. . . .”

Agent Toles exited the rest room and informed Agents Souza and Barnes of the suspects’ activities. “A couple of seconds later [, defendant and Karl Jamison] walked outside of the rest room and proceeded down the concourse towards their gate again.” The agents then “walked up along side [the suspects] and [Agent Toles] displayed [his] credentials to [defendant] and said, excuse, me, ... I [am] a police officer and [then] asked [defendant] if [he] could speak to him for a second.” Defendant “stopped and indicated that it was okay for [Agent Toles] to speak to him.” Agent Toles “asked [defendant] if [he] could see his airline ticket and [defendant] pointed towards Karl [Jamison] and said, he has my ticket. . . . Karl [Jamison then handed] a Delta [Airline] ticket envelope to Agent Souza. Inside that ticket envelope was [defendant’s] ticket. [Agent Toles] then said to Karl [Jamison], is it okay if I look at your ticket and he said, yes, it was and [Agent] Souza handed the envelope and all the contents to [Agent Toles].” Agent Toles inspected the airline tickets and confirmed the information he had obtained from the airline’s reservation computer. However, he also learned “that there was one baggage claim check stub attached to the ticket envelope indicating that there was just one piece of checked luggage between the two of them.” Agent Toles recognized this as another drug courier characteristic, i.e., the suspects were traveling light so as to be responsive to the last minute and unpredictable nature of the drug distribution business.

Agent Toles returned the tickets to the suspects and asked them “if they had any form of identification that [he] could look at.” Defendant and Karl Jamison produced their South Carolina driver’s licenses and, after inspecting the identification and returning it to the suspects, Agent Toles explained to the Jamisons that he and the other agents were “narcotics agents and [informed the suspects] that [they] were looking for drugs and narcotics and the proceeds of those coming through the airport. . . .’’At that point, defendant “became extremely nervous and fidgety. His breathing was real panted, his hands were quivering and he moved around from one spot to the next. Not a long way away, but just fidgeting back and forth from foot to foot.” Agent Toles noticed defendant’s changed behavior and was aware that “[e]verytime [he had] interviewed a drug courier that was in the process of couriering drugs [that the courier] got nervous.”

Agent Toles then “asked [the suspects] if it would be okay if [he or the other agents] could search them and their one piece of checked luggage. ...” Defendant’s nervous demeanor became even more pronounced and Karl Jamison “quickly spoke up and said, I don’t care if you search the suitcase, but I don’t want you to search us.” Agent Toles “asked him, do you have a problem being searched and . . . indicated that it’s just a quick pat of [the] body and [that the agents] can do it in private so that nobody will see it.” Defendant “then said to [Agent Toles], no, the suitcase is okay, but not us.” Agent Toles said “[t]here [is] a hallway just to the right, ... a small cove-way that leads to a jetway. [He] then pointed to this cove-way . . . and . . . said, it’s really no big thing, guys, we could go right over there and do it real fast. ...”

Defendant was getting “ready to leave [as Agent Toles] was talking [and, in the middle of the conversation, defendant] quickly jumped to his right and took off running up the concourse away from the direction that [the suspects] had been walking toward their gate. [Agent Toles] ran a few steps behind [defendant] and tackled him. . . .” Defendant was then subdued and Agent Toles searched defendant “and felt several hard, unnatural bulges around [defendant’s] groin and crotch area.” Defendant was then placed under arrest and taken into police custody. The objects found in defendant’s “crotch area” were identified as “[a]bout 2.2 pounds” of cocaine.

After the close of evidence, the trial court found probable cause for defendant’s arrest and search and specifically cited defendant’s flight from the law enforcement officers. Nonetheless, defense counsel pressed defendant’s version of the events leading to the search and arrest, but the trial judge stated that he didn’t “believe a thing [that] either [defendant or Karl Jamison] said when they contradicted the officer” and held that “it ripened into probable cause at the moment [defendant] ran taking in all the other facts and circumstances.”

Defendant’s motion to suppress was denied. The case was then tried before the trial court, without a jury, and defendant was found guilty of the offense charged. Defendant now appeals and contends the trial court erred in denying his motion to suppress. Held:

“Theoretically, there are at least three kinds of police-citizen encounters: verbal encounters involving no coercion or detention [which do not invoke the Fourth Amendment]; brief ‘stops’ or ‘seizures’ which must be accompanied by a reasonable suspicion; and ‘arrests’ which must be supported by probable cause. McAdoo v. State, 164 Ga. App. 23, 26 (295 SE2d 114), citing United States v. Berry, 670 F2d 583, 591 (5th Cir. 1982).” Verhoeff v. State, 184 Ga. App. 501, 502 (2), 503 (362 SE2d 85).

In the case sub judice, defendant argues the DEA agents did not have reasonable suspicion to make the initial encounter; that he was taken into police custody (arrested) without probable cause when Agent Toles “pointed to a coveway and with his hand on [defendant’s] shirt told [defendant and Karl Jamison that] they could go right over there and do [a search] real fast” and that defendant’s flight was insufficient to support probable cause for his search and arrest. Any challenge to the trial court’s finding that probable cause existed for defendant’s arrest, utilizing defendant’s version of the events leading to his arrest and reasoning that defendant’s “behavior in taking two running steps [does not evidence] the sort of consciousness of guilt to justify characterizing his behavior as ‘flight’ ” is illogical. Defendant’s arguments are supported only by his version of the events leading to his arrest and it would be illogical to ignore the trial court’s role as factfinder and to discount direct testimony supporting the trial court’s finding that probable cause existed for defendant’s search.

“On motion to suppress evidence, the trial judge sits as the trior of facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. West v. West, 228 Ga. 397, 398 (185 SE2d 763).” State v. Swift, 232 Ga. 535 (1), 536 (207 SE2d 459). See Santone v. State, 187 Ga. App. 789 (1), 790 (371 SE2d 428); Jones v. State, 184 Ga. App. 328 (361 SE2d 693); and State v. Peacock, 178 Ga. App. 96, 97 (342 SE2d 364).

In the case sub judice, the DEA agents’ initial encounter with defendant did not amount to a brief “stop” or “seizure” which required reasonable suspicion. “[Ajirport stops of individuals by police, if of extremely restricted scope and conducted in a completely non-coercive manner, do not invoke the Fourth Amendment.” United States v. Berry, 670 F2d 583, 594, supra. Agent Toles testified that the DEA agents were dressed casually and that their weapons were not displayed on the morning that they approached defendant and Karl Jamison. He further testified that the encounter with defendant and Karl Jamison was of “a conversational tone . . .”; that the conversation was not threatening or coercive; that neither defendant nor Karl Jamison attempted to terminate the conversation; that the suspects did not indicate that they did not wish to talk to the agents; that the suspects did not attempt to leave before defendant “quickly jumped up . . .” and ran and that nothing was done “to objectively manifest [to the suspects that they] weren’t free to leave.” This testimony and testimony showing the consensual nature in which defendant and Karl Jamison submitted to Agent Toles’ questioning was sufficient to authorize a finding that defendant was free to leave throughout the encounter with the DEA agents and that defendant’s Fourth Amendment rights were not then violated. See Calixte v. State, 197 Ga. App. 723 (2) (399 SE2d 490), and Verhoeff v. State, 184 Ga. App. 501, 502 (2), supra. Further, we agree with the trial court that “it ripened into probable cause at the moment [defendant] ran taking in all the other facts and circumstances.” The evidence which supports this finding is Agent Toles’ testimony that defendant exhibited several characteristics of a typical drug courier; that defendant exhibited untypical behavior inside a public rest room; that defendant displayed anxiety upon learning that the DEA agents were drug enforcement officers, i.e., defendant became “fidgety[, his] breathing was real panted, his hands were quivering and he moved around from one spot to the next[,] back and forth from foot to foot” and that defendant “quickly jumped to the right and took off running . . .” in a direction inconsistent with defendant’s connecting flight while Agent Toles was talking to defendant and Karl Jamison about how a consensual search could be performed. Consequently, the trial court did not err in denying defendant’s motion to suppress. See Travis v. State, 192 Ga. App. 695, 696 (385 SE2d 779).

Judgment affirmed.

Banke, P. J., Birdsong, P. J., Pope, Beasley and Andrews, JJ., concur. Sognier, C. J., Carley and Cooper, JJ., dissent.