McSwain v. State

522 S.E.2d 553, 240 Ga. App. 60, 99 Fulton County D. Rep. 3540, 1999 Ga. App. LEXIS 1214
CourtCourt of Appeals of Georgia
DecidedSeptember 15, 1999
DocketA99A1366
StatusPublished
Cited by16 cases

This text of 522 S.E.2d 553 (McSwain v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McSwain v. State, 522 S.E.2d 553, 240 Ga. App. 60, 99 Fulton County D. Rep. 3540, 1999 Ga. App. LEXIS 1214 (Ga. Ct. App. 1999).

Opinion

Ruffin, Judge.

After stopping a vehicle driven by Dexter McSwain, police discovered cocaine in the trunk. McSwain and his three passengers, Antonio Stepps, Toriono Lawson, and Eric Easter, were arrested and charged with trafficking in cocaine. 1 The defendants moved to suppress the evidence obtained in the search of the vehicle, but the trial court denied their motion. McSwain and Stepps appeal, asserting that the police lacked reasonable suspicion to initiate the traffic stop. 2 As explained more fully below, we reverse.

The uncontroverted evidence presented at the suppression hearing follows. On the afternoon of October 10, 1995, Corporal Clay Kicklighter of the Georgia State Patrol (“GSP”) was monitoring traffic on 1-95 in McIntosh County when he heard the Brunswick GSP post announce over the radio that GSP units in Camden and McIntosh Counties should be on the lookout for a vehicle headed northbound on 1-95 from Florida to North or South Carolina. The dispatcher described the vehicle as a light green, four-door Honda Accord occupied by four black males, gave the vehicle’s license plate number, and stated that there was “possibly some contraband” in the trunk. The dispatcher also gave names for the vehicle’s occupants, but Kicklighter did not write the names down and, with the exception of Easter, did not remember them at the suppression hearing. No further details were provided.

About an hour later, Kicklighter saw a vehicle that matched the description and contained four black males traveling north on 1-95. Kicklighter followed the vehicle for approximately one mile, but saw no traffic violations or other criminal activity. He then pulled the vehicle over based solely on the radio lookout. He asked the driver — later identified as McSwain — to step out of the car and produce his driver’s license, at which point McSwain told him that his driver’s license had been suspended. Kicklighter detected the odor of burnt marijuana on McSwain’s clothing and noticed that his eyes were bloodshot and glassy. After reading McSwain his Miranda rights, Kicklighter sought McSwain’s consent to search the car, which McSwain said belonged to passenger Easter. Kicklighter then ordered the three passengers out of the car, read them their Miranda rights, and asked for consent to search the car. According to Kick-lighter, all four men consented to the search. A canine unit arrived at the scene, and the dog alerted at several places on the car, including *61 the trunk. Subsequent searches revealed a small quantity of marijuana in the rear passenger’s seat and one and one-half pounds of cocaine in the trunk.

As the evidence at the suppression hearing was undisputed and there was no question as to the credibility of the witnesses, we conduct a de novo review of the trial court’s application of the law to the uncontroverted facts. Hughes v. State, 269 Ga. 258, 259 (1) (497 SE2d 790) (1998). It is well established that a brief, investigatory stop of a motorist by police

must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). The issue critical to a determination of the validity of the stop is whether the officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity. Investigative stops of vehicles are . . . invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal conduct. What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.

(Citations and punctuation omitted.) Painter v. State, 227 Ga. App. 875, 877 (490 SE2d 544) (1997). “This demand for specificity in the information upon which police action is predicated is the central teaching of . . . Fourth Amendment jurisprudence.” (Punctuation omitted.) Shapiro v. State, 233 Ga. App. 620, 621 (2) (504 SE2d 719) (1998). The State bears the burden of presenting evidence that demonstrates a reasonable suspicion of criminal activity. State v. Holton, 205 Ga. App. 434, 436 (1) (422 SE2d 295) (1992).

We find that the State failed to meet its burden at the suppression hearing. Kicklighter stopped appellants’ vehicle solely because of the lookout he heard over the police radio, not because he observed any traffic violations or criminal activity. According to Kicklighter, the lookout provided a description of the vehicle and occupants and stated that the vehicle was headed toward North or South Carolina and possibly contained unspecified “contraband” in the trunk. The only other evidence at the suppression hearing concerning the radio lookout came from McIntosh County Deputy Sheriff Danny Deal, who brought the drug-sniffing dog to the scene. Deal testified that he heard secondhand that the lookout originated from “the [Drug *62 Enforcement Administration] out of Jacksonville.” The State presented no other evidence of the source of the lookout. Likewise, the State presented no evidence of any specific facts on which the lookout might have been based, such as the nature of the suspected criminal activity, the reason for the belief that criminal activity was afoot, or the type of contraband at issue. In the absence of any such information, we have no basis for concluding that the stop was justified by a reasonable suspicion of criminal activity.

Our decision in Tarwid v. State, 184 Ga. App. 853 (363 SE2d 63) (1987) controls this case. In Tarwid, an officer stopped a vehicle for speeding and requested permission to search the car, but the driver refused. After giving the driver a warning ticket, the officer broadcast a lookout for the car in which he explained, without elaboration, that the occupants “had shown signs of trafficking in drugs.” (Punctuation omitted.) Id. at 853 (1). Another officer heard the broadcast, stopped the car again based solely on the broadcast, and discovered drugs inside. At the suppression hearing, the officer who executed the second stop testified as to the broadcast he heard from the first officer, but the first officer did not testify. We held that the second stop was invalid. As the first officer did not search the vehicle, he apparently lacked a legitimate basis for doing so. Thus, in the absence of any evidence establishing the factual basis for the first officer’s belief that drug trafficking was taking place, we concluded that the “signs” to which he referred appeared to be “nothing more than ‘inarticulate hunches’ and thus insufficient to justify a seizure under the Fourth Amendment.” Id. at 856. We reasoned that an officer’s decision to broadcast a lookout over the police radio does not, by itself, create reasonable suspicion for another officer to stop the vehicle.

The same result applies here.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Reyes v. the State
780 S.E.2d 674 (Court of Appeals of Georgia, 2015)
Watts v. the State
780 S.E.2d 431 (Court of Appeals of Georgia, 2015)
James Thomas Heard v. State
Court of Appeals of Georgia, 2013
Heard v. State
751 S.E.2d 918 (Court of Appeals of Georgia, 2013)
Maldonado v. State
643 S.E.2d 316 (Court of Appeals of Georgia, 2007)
Baker v. State
627 S.E.2d 145 (Court of Appeals of Georgia, 2006)
Tiller v. State
582 S.E.2d 536 (Court of Appeals of Georgia, 2003)
Williams v. State
561 S.E.2d 149 (Court of Appeals of Georgia, 2002)
Gray v. State
556 S.E.2d 194 (Court of Appeals of Georgia, 2001)
Berry v. State
547 S.E.2d 664 (Court of Appeals of Georgia, 2001)
Duke v. State
544 S.E.2d 201 (Court of Appeals of Georgia, 2001)
State v. Cunningham
541 S.E.2d 453 (Court of Appeals of Georgia, 2000)
Johnson v. State
540 S.E.2d 212 (Court of Appeals of Georgia, 2000)
Payne v. State
536 S.E.2d 791 (Court of Appeals of Georgia, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
522 S.E.2d 553, 240 Ga. App. 60, 99 Fulton County D. Rep. 3540, 1999 Ga. App. LEXIS 1214, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcswain-v-state-gactapp-1999.