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Lawskills.com Georgia Caselaw
THE STATE v. RICHARDSON.
76380.
POPE, Judge.
Motion to suppress. Clayton Superior Court. Before Judge Boswell.
Appellee Leoncer Albert Richardson was indicted on the charge of trafficking in cocaine. The State brings this appeal from the lower court's grant of appellee's motion to suppress evidence.
The evidence adduced at the suppression hearing, which consisted entirely of the testimony of Special Agent Gill Lalumiere of the Georgia Bureau of Investigation, established the following: On July 1, 1987 Agent Lalumiere was awaiting the arrival of Delta Flight No. 117, from Miami, Florida, a known drug source city, when he and his partner observed the appellee deplane. Appellee was attired in gym shorts and a mesh shirt that hung loosely over part of his shorts and was carrying a small blue tote bag. Agent Lalumiere testified that his attention was first drawn to appellee because he was clutching the tote bag to his body instead of carrying it by the handles. Lalumiere further testified that the bag did not appear to be full, and that this fact, coupled with the manner in which appellee was carrying the bag, indicated to Lalumiere the possibility of drug trafficking.
According to the testimony of Agent Lalumiere, appellee then briefly looked around and started walking towards the escalators that led to the terminal baggage claim area. Agent Lalumiere and his partner followed appellee down the escalator. At the bottom of the escalator Lalumiere approached appellee, identified himself verbally, displayed his credentials and asked appellee if he could speak with him for a moment. Lalumiere also asked appellee if he would mind moving to the side of the escalator so as not to impede the flow of traffic and appellee complied. Agent Lalumiere's partner remained approximately three feet away to avoid crowding appellee.
"The three tiers of inquiry concerning . . . police-citizen contact [such as in the case at bar] adopted by our Supreme Court are: (1) Was the initial interview conducted in a non-coercive manner without display of weapons or in the absence of peremptory or commanding tone of voice), and did that interview intrude upon any protections afforded to an airline passenger by the Fourth Amendment; (2) Was the beginning seizure brief in time and solely for investigative purposes based upon an articulable suspicion; or (3) Was the seizure of a nature reasonably to cause the seized party to believe that his freedom was removed and in such a case were there articulable facts sufficient to raise probable cause that a crime was in progress, i.e., was there probable cause for a full scale arrest? Yocham v. State, 165 Ga. App. 650 (302 SE2d 390) [(1983)]." Aguero v. State, 169 Ga. App. 462, 464 (313 SE2d 735) (1984).
In the present case, there is no evidence that appellee was "seized" prior to the time Agent Lalumiere actually placed him under arrest. " 'The events took place in the public concourse. The agents wore no uniforms and displayed no weapons. They did not summon [appellee] to their presence, but instead approached (him) and identified themselves as [law enforcement] agents. They requested, but did not demand to see the [appellee's] identification and ticket. Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest. The [appellee] was not seized simply by reason of the fact that the agents approached (him), asked if (he) would show them (his) ticket and identification, and posed to (him) a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official . . . In short, nothing in the record suggests that the [appellee] had any objective reason to believe that (he) was not free to end the conversation . . . and proceed on (his) way . . .' United States v. Mendenhall, 446 U. S. 544, 555 (100 SC 1870, 64 LE2d 497) (1980). Accord State v. Reid, 247 Ga. 445 (276 SE2d 617) (1981); Allen v. State, 172 Ga. App. 663 (1) (324 SE2d 521) (1984); Berry v. State, 163 Ga. App. 705 (3) (294 SE2d 562) (1982)." Ullrich v. State, 176 Ga. App. 260, 261-262 (335 SE2d 490) (1985). See also Voight v. State, 169 Ga. App. 653 (314 SE2d 487) (1984); McAdoo v. State, 164 Ga. App. 23 (1) (295 SE2d 114) (1982); McShan v. State, 155 Ga. App. 518 (271 SE2d 659) (1980).
Remaining, however, is the question of whether the subsequent arrest and seizure of appellee was based on probable cause. "An arrest and search, legal under federal law, are legal under state law. Durden v. State, 250 Ga. 325, 327 (297 SE2d 237) (1982). The constitutional validity of an arrest without a warrant depends upon whether, at the moment the arrest was made, the officers had probable cause to make it -- whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [appellee] had committed or was committing an offense. Beck v. Ohio, 379 U. S. 89, 91 (85 SE 223, 13 LE2d 142) (1964). In dealing with probable cause . . . as the very name implies, we deal with probabilities. They are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. (Cit.) Sanders v. State, 235 Ga. 425, 440 (219 SE2d 768) (1975)." (Punctuation omitted.) Allen v. State, 172 Ga. App., supra at 667.
In the present case, the evidence shows that at the time the appellee was placed under arrest, Lalumiere had ascertained that appellee exhibited characteristics of the drug courier profile, the most notable of which were that appellee was traveling on a one-way cash ticket from a known drug source city with little or no luggage. At the time of the arrest Agent Lalumiere also knew that appellee had an abnormal bulge in his abdominal region which neither looked nor felt like what appellee stated it to be. Moreover, Agent Lalumiere's tactile impression of the bulge was consistent with his prior experience concerning how cocaine feels. "Based upon the foregoing, we find that [Lalumiere] had probable cause to believe that [appellee] was committing an offense involving concealed contraband and to place [appellee] under arrest. It was not necessary for [Lalumiere] to know the exact nature of the suspicious bulge for probable cause to exist. 'Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction. (Cits.)' Cook v. State, 136 Ga. App. 908, 909 (1) (222 SE2d 656) (1975). See also Aguero, [supra]." Allen, supra at 667. It is well established that a valid search may be made incident to a legal arrest when supported by probable cause. See, e.g., Griffin v. State, 180 Ga. App. 189 (348 SE2d 577) (1986); State v. Gilchrist, 174 Ga. App. 499 (2) (330 SE2d 430) (1985); Moran v. State, 170 Ga. App. 837 (1) (318 SE2d 716) (1984). Consequently, the seizure of the contraband in the present case may be viewed as the fruit of a lawful search incident to arrest. It follows, therefore, that the trial court erred in granting appellee's motion to suppress.
BENHAM, Judge, concurring specially.
No evidence was offered to contest the officer's version of the incident; therefore, the search must be viewed as consensual and not violative of appellant's Fourth Amendment rights. Scott v. State, 253 Ga. 147 (317 SE2d 830) (1984).
John A. Beall IV, Jerry L. Patrick, Jr., for appellee.
Robert E. Keller, District Attorney, Clifford A. Sticher, Assistant District Attorney, for appellant.
DECIDED MAY 27, 1988 -- REHEARING DENIED JUNE 8, 1988 -- CERT. APPLIED FOR.
Thursday May 21 13:12 EDT


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