Special Agent Gerald D. Chapman of the Federal Drug Enforcement Administration (DEA) was on duty at the Atlanta International Airport on July 10, 1981. DEA agents use a “drug courier profile” technique in an attempt to identify potential drug couriers arriving in Atlanta from areas where drugs are imported into the United States — such as Miami or South Florida. Agent Chapman has participated in approximately 225 to 250 drug related arrests at the Atlanta airport while on duty there. Using the “drug courier profile” technique while monitoring a flight from Fort Lauderdale to Atlanta, Chapman observed the defendant deplane approximately thirty seconds after all other passengers had departed. From past experience, Chapman attached special significance to this fact as it permitted that person to pick out people in front of him that may be watching the passengers. It also increased the chance that police watching deplaning passengers would have departed. The defendant had a “prominent bulge” in the lower abdominal area, below the belt, that was not consistent with the rest of his body. He also wore his shirt outside his pants to cover the waist area and carried a garment bag in front of this body to cover the abdominal area. From past experience, Chapman knew that drug *706 couriers usually carried drugs strapped to their body or legs. Defendant turned in his ticket folio to the Delta ticket agent and received a ticket to Detroit. Chapman examined defendant’s surrendered ticket folio which showed a one-way ticket from Fort Lauderdale, paid for in cash, which did not contain additional baggage checks. The flight reservation showed defendant was flying under the name of James Barnette and gave a telephone call-back number. Chapman called the number listed and no one at that number knew James Barnette nor had anyone at that number made a reservation for a flight to Detroit. At that point, Chapman decided to interview the defendant.
Agent Chapman was dressed in “plain clothes” and was armed, but his weapon was not visible. Chapman approached the defendant and showed him his DEA credentials and identified himself as a Federal DEA agent and asked if he could talk with him. Chapman asked for the purpose of defendant’s trip to Florida. Berry stated it was to visit a friend. Chapman asked if his name was James Barnette and if he had any identification. Defendant stated his name was Barnette and he did not have any identification — he had left his wallet and keys in Florida. The defendant “was very nervous... voice was trembling in his answers, his hands were visibly shaking . . . physically perspiring ... his breathing was shallow and rapid . . .”
Agent Chapman had received special training in drug identification and is familiar with cocaine hydrochloride. Chapman also has a degree in chemistry and is familiar with the appearance, texture, and “peculiar odor” that is easily identifiable with cocaine hydrochloride. Hydrochloric acid is used to process cocaine and heroin and the higher the purity of the drug, the stronger the acid and more prominent the odor. While Chapman was questioning Berry he detected and recognized the odor he “has smelled in the past associated with narcotics, either the heroin or the cocaine... Because in both processes . . . the cocaine and heroin they used both of the same type of acids in the process which is hydrochloric acid ... And having been a chemistry major and also hav[ing] a degree in chemistry [Chapman] associated that odor with the process of either one of those two drugs. Q. Is it a pronounced distinct odor? A. Yes, it is.”
Chapman asked for permission to search the defendant and his garment bag. Berry at first consented, stating he didn’t have a choice. Chapman advised him he did not have to consent to the search and Berry withdrew his consent. After Chapman went through the same routine again — Berry left it up to Chapman to decide. Chapman asked the defendant to accompany him to the Delta office and there asked defendant to empty his pockets and luggage. Finally, he asked *707 defendant to explain the bulge around his lower abdomen. Berry said “his back was out” and it was a waistband. Chapman asked him to remove the waistband and then Chapman removed a large packet of cocaine — 145.7 grams.
The trial court found: 1) defendant had not been seized when the DEA agents stopped and questioned him initially about his name, purpose of his trip to Florida, etc., 2) that defendant voluntarily accompanied the DEA agents to the room to be searched, 3) that defendant tacitly consented to the search, and 4) that the officer had probable cause to believe that a crime was being committed in his presence and had probable cause to arrest the defendant and conduct a search pursuant to that arrest. Defendant appeals his conviction. Held:
1. Pretermitting the issue of whether the defendant consented to the search, we find sufficient probable cause for the arrest of the defendant and a search incident to that arrest.
Our Supreme Court, in
Vaughn v. State,
“To justify the arrest without warrant, the officer need not see the act which constitutes the crime take place,
if by any of his senses
he has personal knowledge of its commission.” (Emphasis supplied.)
Lynn v. State,
This Court has generally followed Taylor, supra, rather than Johnson, supra, holding: “Although there is some controversy as to whether or not the odor of burning marijuana by itself supplies sufficient probable cause for a search or an arrest [cits.], all opinions of this court are in agreement that ‘it may be considered and may be a part of a totality of circumstances sufficient to validate one.’ ”
State v. Medders,
2. “Where the formal arrest followed quickly on the heels of the challenged search of [defendant’s] person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.” Rawlings v. Kentucky,
3. The trial court was correct in finding that defendant’s person was not “seized” at the initial encounter when the DEA agents questioned the defendant on the concourse. United States v. Mendenhall,
4. It is alleged that the trial court improperly restricted cross-examination of the arresting DEA agent. Counsel asked Agent Chapman if he had heard of two cases called United States v. Robinson, in the Northern District of Georgia. The State’s objection was sustained. Counsel did not perfect the record by any showing of relevance. He did state that “Agent Chapman must testify today in a fashion that would produce a conviction because he has been held to be engaged in unlawful activity that he may not assert a good faith immunity defense and that he himself can be, if damages are proven, will be held liable to Alphonso Sylvester Robinson----” (See Division 5, post.) Following the ruling sustaining the objection counsel proceeded with examination of the witness. “ ‘In order to be in a position to complain of the abridgement of the right of cross-examination, a party to a legal proceeding or his counsel must either ask the questions he desires to ask or state to the court what questions he desires to ask and then interpose timely objection to the ruling of the court denying the right to propound the questions.’ ”
Cross v. State,
5. Defendant’s last enumerated error contends the trial court erred in denying his motion for new trial upon newly discovered evidence “bearing upon the credibility of agent Chapman and his activities while on duty at the Atlanta International Hartsfield Airport.” The “newly discovered evidence” consisted of an excerpt from a report made by DEA agents on an arrest subsequent to the incident involving the present defendant. In that report, Agent Chapman is reported to have opened a traveler’s suitcase and found cocaine therein after the traveler refused to consent to a search. We also note in the same report that Exhibits 2,3, and 4 — were packages of cocaine seized from the defendant’s luggage “pursuant to a search warrant.”
Defendant argues that this is “information bearing upon the ‘good faith’ conduct of Agent Chapman while in the line of duty.” Counsel cites United States v. Williams, 622 F2d 830 (5th Cir. 1980) as the legal base for construction of this defense. Williams, supra, is a case in which the Fifth Circuit, sitting en banc, judicially legislated a “good faith” exception to the judicially created “exclusionary rule.”
*711
See Stone v. Powell,
Assuming, without deciding, that the “good faith” exception to the exclusionary rule would apply to cases arising within Georgia, since the newly discovered evidence relates only to cases other than the present case, it would affect only the credibility of the witness Chapman. Our Supreme Court has set forth six criteria as the basis for new trial on the ground of newly discovered evidence. The sixth criterion is: “ ‘ “ [T]hat a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.” ’ ”
Fleming v. State,
Judgment affirmed.