Defendant was charged in an indictment with “TRAFFICKING HEROIN” for knowingly possessing “more than 28 grams of a mixture containing heroin.” The evidence adduced at his jury trial revealed that, acting on information that a certain male in a certain white Subaru would be in a Checkers parking lot in Jonesboro, Clayton County, Georgia, “with a large quantity of drugs,” Special Agent Joseph Daly of the Clayton County Police Department, assisted by Clayton County Deputy Sheriff James F. Watkins, drove a marked patrol unit to that parking lot and observed a white vehicle matching the description “backed into a parking space close to the drive-thru area.” Special Agent Daly and Deputy Watkins, each in full uniform, began to approach the white vehicle. Defendant “immediately exited the vehicle in a very hurried manner. He began juggling his hamburger and his french fries and his Coke as he attempted to get out[,] almost dropping it.” “[I]t appeared that [defendant] was trying *430 to separate [himself] from the vehicle.” Defendant told the officers “that he was just waiting for a friend.” Defendant’s demeanor “was extremely nervous, he was fidgeting.” Although defendant consented to a search of his person for weapons or drugs, when Special Agent Daly asked for permission to search the vehicle, defendant “didn’t give ... a response at all, he wouldn’t tell [Special Agent Daly] whether [the agent] could or couldn’t search his vehicle.” Special Agent Daly asked again. Defendant’s “second response was, he said, what.would you do if I tell you, no.” “At that point it was obvious [defendant] wasn’t going to give [Special Agent Daly] an answer either way. [Special Agent Daly] asked [defendant] again to clarify whether or not he was [going to] allow [the agent] to search his vehicle, again, no response.”
In Special Agent Daly’s patrol unit was Wodan, a Belgian Malinois trained to detect narcotics by scent. When defendant refused to clarify whether he would or would not permit officers to search his vehicle, Special Agent Daly “just went to [his] vehicle and removed the canine.” Wodan alerted to the presence of drugs in the front seat of defendant’s automobile. When Wodan reached the front passenger door seam, he “crouched down. That indicates ... he smelled the odor of narcotics. . . . When he reached that door seam he immediately stopped and began to give an aggressive scratch on the door seam.” Special Agent Daly put Wodan back in his patrol unit and then “explained to [defendant] that the dog had indicated there was a presence of narcotics in his vehicle. [Special Agent Daly] asked [defendant] again would he or did he have anything to tell [him] about what was in the vehicle. At that time, [defendant] just said, no, you can’t search the vehicle.” Special Agent Daly informed defendant that, “based on everything that we’d observed, our conversation, his unusual behavior and suspicious manner and on the dog’s aggressive indication of the presence of narcotics, that I was going to search the vehicle without his consent.” Deputy Watkins “observed a Checkers bag . . . sitting in the floorboard area on the passenger side. . . .” This bag contained “a brown powdery substance [in eight plastic bags] suspected of being heroin.” Defendant was placed under custodial arrest and read his Miranda rights. Defendant “stated that he understood them and then [Special Agent Daly] took a brief statement.” Defendant identified the substance as drugs and “said he got them from a friend or acquaintance from his work and that they really didn’t belong to him, he was just selling them for that person to make extra money.” Forensic analysis showed that the brown powder, net weight 220 grams, tested positive for heroin. The strength was “45 percent pure.” There was a “cut or a substance which was added to the heroin to increase its volume and that substance was found to be phenalthalene.”
*431 The jury found defendant guilty as charged. His motion for new trial was denied, and this appeal followed. Held:
1. Defendant first enumerates the overruling of his motion to suppress. That motion urged “Defendant’s automobile was searched illegally while defendant was being held in illegal custody, said search was being conducted without a warrant or probable cause.” After a hearing, the trial court determined from the bench that the officers had a right to approach defendant “with or without articulable suspicion.” The trial court concluded that “defendant was not detained or arrested . . . until after the contraband was [discovered and] removed from the vehicle. . . .” The trial court further concluded that, subsequent to the alert by the drug dog, “the police officers had probable cause to search the vehicle without a warrant given the exigent circumstances and the nature of it being a vehicle, et cetera.” On appeal, defendant argues that the officers did not have probable cause to arrest. We disagree.
When Wodan, the trained Belgian Malinois, alerted to the presence of narcotics in defendant’s car, “the officer[s] then had probable cause to believe that contraband was contained somewhere therein. ‘A sniffing dog may provide probable cause for the issuance of a search warrant, (cits.) or when exigent circumstances are present, justify a search without a warrant. (Cits.)’
State v. Morrow,
2. The trial court did not abuse its discretion in refusing to grant a continuance of the suppression hearing in order to await the arrival of two defense witnesses, purportedly under subpoena, where defendant failed to make the required showing of availability and materiality under OCGA § 17-8-25. “ ‘Each of the requirements set forth in OCGA § 17-8-25 must be met before an appellate court may review the exercise of the trial court’s discretion in denying a motion for continuance based upon the absence of a witness.’ . . .
Garrett v. State,
3. Defendant’s final two enumerations contend the trial court erred in overruling his motion for new trial on the special ground of ineffective assistance of counsel. He complains that trial counsel was ineffective “by not being prepared for the Motion for Funds to Hire an Expert Witness who was necessary in order to properly attack the *432 use of the canine [and further by] not objecting to the jury array, which had a clear underrepresentation of [members of defendant’s race].”
“When inadequate representation is alleged, the critical factual inquiry ordinarily relates to whether the defendant had a defense that was not presented; whether trial counsel consulted sufficiently with the accused, and adequately investigated the facts and the law; and whether the omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. Generally, the burden is on the defendant claiming ineffective [assistance] of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness
and
(2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted; emphasis in original.)
Johnson v. State,
(a) With respect to trial counsel’s alleged failure, over a five-month period, to prepare for defendant’s motion for funds to hire an expert witness to challenge the reliability of the canine alert, we assume — but do not hold — that such a failure to prepare and to use wisely such time and resources as were already available fell below that objectively reasonable standard of diligent preparation that members of the bar in good standing are presumed to render. The question becomes whether defendant has met his burden of persuasion to show that, but for this omission, there is a reasonable probability that the result of the proceeding would have been differr ent. We conclude he has not.
“A conviction will not be reversed on the basis of ineffective assistance of counsel unless ‘ “counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” ’
Carter v. State,
(b) The array from which defendant’s petit jury was selected contained only two members of defendant’s race, one of whom was “struck for cause by [the] court because he had a previous conviction for habitual violator.” After the trial court had the State’s attorney explain her peremptory strike to remove that other venireman of defendant’s race, trial counsel withdrew his challenge under
Batson v. Kentucky,
In determining what constitutes ineffective assistance of counsel, a critical distinction is made between inadequate preparation on the one hand, and unwise choices of trial tactics and strategy on the other hand.
Hudson v. State,
We find no unprofessional lapse in the case sub judice from trial counsel’s deliberate choice not to pursue a challenge to his array. “[T]here is no constitutional guarantee, that grand or petit juries, impaneled in a particular case, will constitute a representative cross section of the entire community. . . . See
Campbell v. State,
Judgment affirmed.