Lopez v. State

360 S.E.2d 722, 184 Ga. App. 31, 1987 Ga. App. LEXIS 2750

• Court: Court of Appeals of Georgia
• Decided: July 14, 1987
• Docket: 74222, 74223
• Status: Published

Opinions

Deen, Presiding Judge.

Jose Luis Lopez and Ruben Oyóla were jointly tried and convicted by a jury of trafficking in cocaine. Each has filed a separate appeal.

On June 9, 1986 Lopez and Oyóla were en route from Miami to Chicago when they were stopped on 1-75 in Gordon County at 6:45 a.m. by Georgia State Patrol Trooper M. S. Ralston, who told them their automobile had either a dim or nonfunctioning taillight. Lopez was a 21-year-old native of Puerto Rico with a tenth grade education who spoke very little English. The automobile belonged to his cousin, Miguel Quieles, a Miami resident, who had loaned him the car to visit Chicago. Oyóla, also a native Puerto Rican, was 37 years old, a college graduate, bi-lingual and had a background of jobs in social services and as a consultant to police and government agencies in the human relations and community organization fields. He had also worked as an insurance and private investigator. He testified that Quieles had hired him at his daily rate as an investigator ($25 per hour or $250 per day, plus expenses) to accompany Lopez because he was familiar with Chicago and the route to take, and that he was planning to fly back after they arrived because he had previously made plans and purchased the tickets to visit his father in Puerto Rico over Father’s Day weekend. He and Lopez started out between 5:00 and 6:00 p.m. the day before, and he had driven until shortly before the car was stopped in Gordon County.

Trooper Ralston asked for Lopez’ driver’s license and the automobile registration, which Lopez produced, and verified them as valid. He then spoke to Oyóla and questioned both men as to their destination and starting point. After issuing a warning for the mechanical defect he radioed the Sheriff’s Department for a backup, and asked if the men would consent to his searching the car. Both agreed orally, and Lopez also read and signed a Florida Highway Patrol consent to search form printed in Spanish. Both men unlocked their luggage voluntarily while the car and trunk were being searched and were in Trooper Ralston’s words “very cooperative.” Trooper Ralston then removed a plastic vent on each of the vehicle’s doorjambs, thereby discovering in the left rear quarter panel five packages of a white powder, subsequently analyzed to contain over ten pounds of 75% pure cocaine. Appellants, although they professed no knowledge of the cocaine, were arrested, indicted, tried and convicted of being in actual possession of cocaine in violation of OCGA § 16-13-31 (a). Held:

1. Both Lopez and Oyóla contend that the trial court committed reversible error in denying their motions to suppress illegally seized evidence. The dispositive issue is whether Lopez and Oyóla consented to the search of the vehicle freely and voluntarily, and not as a result of coercion, duress, or deceit. State v. Rezvani, 181 Ga. App. 328 (352 SE2d 197) (1986). We conclude that the totality of the circumstances supported the trial court’s determination that both Lopez and Oyóla freely and voluntarily consented to the search, and the trial court thus properly denied the motions to suppress.

The state trooper was justified in stopping the vehicle, as it had an improperly functioning taillight. Thereafter, the officer was given express consent by both Lopez and Oyóla to search the automobile. Consent was even given to open a briefcase by forcing it open. The trooper removed the plastic vent on the door-jambs by removing one screw, and then was able to see the packages of cocaine hidden in the left rear quarter panel of the car. The door paneling was dismantled only after the cocaine was already detected, and then only because it was necessary to retrieve the cocaine.

Here, the trooper testified that what he did in this case was in keeping with what he had learned at a Drug Enforcement Agency seminar related to narcotics trafficking. He testified that in the past he had stopped around 40 cars that he had thought suspicious under the “drug courier profile.” He stated further that out of those stops, everyone stopped had consented to a search of the vehicle and 14 or 16 drug trafficking cases had resulted.

The trial court has a discretion under all the facts in deciding questions of suppression of evidence. We cannot say as a matter of law that the search was overly intrusive. Therefore, the trial court’s decision not to suppress the evidence, based on the totality of the circumstances, is affirmed.

2. Oyóla contends that the evidence was insufficient to support his conviction. Oyola’s explanation was that his involvement was only a matter of employment. Quieles and Lopez were cousins; both wanted to go to Chicago, Quieles for business purposes and Lopez for vacation (although at one time Lopez stated his purpose was to look for a better job). Quieles intended to fly to Chicago and have Lopez drive his car and meet him there. Because Lopez was not proficient with the English language and did not know the route to Chicago, Quieles had hired Oyóla to accompany Lopez, agreeing to pay Oyóla at his regular private investigator’s rate of $250 per day. Quieles had tendered the keys to his car actually to Oyóla, and not Lopez. Upon their arrival in Chicago, Oyóla intended to visit his brother for a day or two and then fly to San Juan, Puerto Rico, to look for his estranged father.

Despite our efforts to view this proffered explanation of events as reasonable, we still find it farfetched that Oyóla would be employed to provide a service that could have been accomplished with a mere road map. The web of circumstantial evidence adduced authorized a rational trier of fact to find Oyóla guilty beyond a reasonable doubt, and that body of evidence did not have to exclude the incredible hypothesis proposed by Oyóla. Robinson v. State, 168 Ga. App. 569 (309 SE2d 845) (1983).

“If he is not guilty, he is an unfortunate wretch in the grip of most merciless circumstances. We are willing to take the word of the jury for his guilt, based on these circumstances, and leave the case as we find it. It is not the strongest, but strong enough.” Wilson v. State, 55 Ga. 324, 325 (1875).

3. We have considered the remaining enumerations of error in both appeals and find them to be without merit.

Judgments affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Sognier and Beasley, JJ., concur. Carley, J., concurs in the judgment only. Pope and Benham, JJ., dissent.