*1 respectfully dissent. I therefore Judge Judge Smith and I state am authorized Carley join in this dissent.
57355. BOWERS v. THE STATE. Judge. Smith, upon grant appellant’s This case is before us our application interlocutory for review. Because lacking cause was seized the for the arrest to which
objectionable appellant, evidence we must from appellant’s reverse the trial court’s denial of motion to suppress.
Appellant plane traveling by Miami, from itinerary Florida, Columbus, Ohio, brief purpose and his a included stopover Airport, Hartsfield International catching flight. Appellant connecting had twenty departing flight, about minutes time to his catch quite proceeding gate and he was thus rushed in gate departure. arriving of his intended On there and exchanging boarding pass, airline his ticket appellant agent Glover, B. accosted A. a narcotics appellant’s who identified himself as such. Glover took pass possession from and thereon, his noted name Then, Peter Barnes. name was Peter as "I Glover him if testified: asked replied, yes. [sic]
Barnes, I which he going replied going asked him where he was he he any type Columbus, I if Ohio. asked he had identification him and on he said that he did not. At that conducting in time, I I informed him that was investigation narcotics if asked him he would walk police precinct with me down there in the terminal building.” Appellant expressed might concern he be flight, caused to avail, miss to no accompanied Upon reaching as Glover directed. their station, which was downstairs and some three hundred gate appellant feet from identified himself Gary appellant Bowers, and Glover told he was under providing arrest for false identification to a during investigation. A search which followed uncovered the contraband. upon
Glover’s initial upon Glover’s own observation relayed investigator information Glover stationed the Miami had witnessed airport, who departure activities from that Both appellant’s city. on noticed that nervous. agents appeared *2 Miami had observed that cash investigator appellant paid he purchased departure for the ticket minutes before the airport of his that he left a call-back number of an flight, and that pay phone, whispered he carried on conversation with a "friend.” were supposedly These observations with a courier the "drug profile” prepared consistent United States Enforcement Administration. Drug time that any
The state has not contended cause existed to arrest the time that (In fact, initially Glover accosted him. such probable exist.1) Rather, contention, did not cause the state’s (U. 1 In Rico, Torres Puerto 47- USLW 4716 Supreme Court Case No. 18,1979), decided June the facts were as Torres, follows. resident, Florida arrived at the San Juan airport aboard a from flight Miami. A police suspicions officer’s were aroused when observed that Torres seemed nervous and kept looking at an armed, uniformed officer stationed nearby airport. was, however, There no reason to that suspect Torres was carrying contraband. When Torres claimed his baggage, stopped him, identified himself as an agent and took Torres to the airport police office, where search ensuing revealed contraband. Torres was then arrested, and the Supreme Court of Puerto Rico affirmed conviction possession marijuana. Commonwealth of Puerto Rico contended that the search was legal upon Public Ann., § Law P. R. Laws 25, § Tit. 1977), 1051 (supp. which provides: "The Police of Puerto Rico is hereby empowered and authorized inspect the luggage, packages, bundles, bags passengers crew land who airports and piers of Puerto States; Rico from the arriving to examine cargo into brought and to country, detain, question, and search those persons whom the Police have grounds to the initial detention is that appeal, and on
trial continued Terry stop that Terry2 stop, as a warranted station to the of gate area waiting from proper search was downstairs, the conducted in the discovery, made Glover’s upon the arrest incident Assuming alias. station, using stop, arguendo contention. the state’s accept cannot we nevertheless the conclusion Instead, the evidence demands by Terry contemplated for questioning brief detention under arrest accomplished means to and of he, boarding pass bereft of him to accompany agent told a narcotics depart, undisputedly arrest Probable cause to police precinct. search time, arrest and ensuing absent at being unlawful. were firearms, explosives, illegally carrying similar
narcotics,
stimulants
depressants
in agreement
Torres’ conviction
Reversing
substances.”
*3
that his Fourth Amendment
his contention
with
"The search
violated,
Court stated:
Supreme
22 did not
to Public Law
appellant’s baggage
the Fourth Amendment
we
satisfy
requirements
First,
for a
grounds
it.
heretofore have construed
standards which ensure
satisfy objective
search must
justified by legitimate
is
personal privacy
the invasion of
Prouse, 440 U. S.
interests.
governmental
(1979).
in the
interests to be served
The governmental
to traditional
detection or
of crime
incriminating
cause to believe that
probable
standards of
22
Yet Public Law
does not
evidence will be found.
search challenged
and the officers who made the
require,
cause for such belief.
here did not have
"Second,
normally
is
prerequisite
warrant
make compliance
search unless
circumstances
exigent
Arizona,
435
Mincey
impossible.
with this (1978).
385,
Yet,
22
no
requires
Public Law
appellant’s bags
warrant and none was obtained before
Torres,
4718.
supra, p.
were searched.”
(88
889)
Terry v. Ohio,
1868,
49 "A composite picture 'Terry-type’ stop. of the emerges It is a brief stop, minimally limited time to that necessary investigate invoking the allegation suspicion, and limited to identification . . . and scope limited related questioning reasonably to the circumstances the initiation State, 231, Radowick v. 145 momentary stop.” App. Ga. 346) (244 Radowick, 237 SE2d As the detention here overreached its and thus became an illegal arrest. "An arrest accomplished is whenever liberty another and go restrained, come as he pleases matter how such be. slight may restraint The defendant may submit voluntarily considered under arrest being without actual force, or show of touching (172 State, arrest complete.” 66, Clements v. 226 Ga. 600) (1970). SE2d "Nothing is more clear than that prevent was meant wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed inv 'arrests’ estigatory detentions.’ Davis 394 U. Mississippi, (89 721, 676) (1969). 22 LE2d J.,
Judgment Quillian, J., reversed. P. and Birdsong, concur.
Argued 1979 Decided June March
Rehearing July denied Garland, Radish, Nuckolls, Nuckolls & John A. appellant. Slaton,
Lewis R. Drolet, District Attorney, J. Joseph H. Allen Moye, Assistant District Attorneys, for appellee. Rehearing.
On Motion *4 It is interesting to note that the state its motion for cases, cited four federal circuit rehearing which are on this court. Also the state cited binding several state However, cases. made to answer absolutely attempt (U. Rico, 47 4716 S. Supreme Torres v. Puerto USLW 1979) 77-1609, 18, which is Court Case No. decided June Supreme on this court. Torres the Court binding issue of the so called "drug States confronted the United "the detection and stated profile” courier of crime are to traditional standards of process, cause.” In the the court struck down probable replace Puerto Rico which seemingly attempted law of Fourth Amendment standard of probable the traditional 1 in with the courier See footnote this "drug profile.” cause opinion. probable
"The cause has roots States, in our (80 361 U. deep history.” Henry S. 134) (1959). 168, LE2d "Hostility SC prime seizures based on mere was a motivation Amendment, adoption for the on the Fourth and decisions immediately after its affirmed that common adoption suspicion, rumor or even report, "strong reason to sus pect?’ was not a warrant arrest.’” adequate support (U. York, Dunaway 4635, 4639 v. State of New 47 USLW S. Supreme 5,1979). Court Case No. decided June (Emphasis supplied.) Supreme Court of the United States in United States v. Brignoni-Ponce, (95 607) (1974), 45 LE2d in dealing with Amendment, seizure of the under the Fourth said: "The applies to all seizures of the person, including seizures involve a brief only detention short of traditional arrest. v. Mississippi, Davis (1969); 394 U. 1, 16-19... S. 721... 392 U. S. a police '[WJhenever accosts and restrains his freedom to walk away, he has "seized” that person,’ [id.,] and the Fourth Amendment requires that the seizure be 'reasonable.’ bar,
In the case at officer took the boarding pass he had restrained from walking away. When he then told protesting go with him to the station house and kept boarding pass, he definitely removed doubt as arrest under the Fourth Amendment. There been no having arrest, cause for that from that forward everything was illegal and the obtained evidence was inadmiss- ible.
Two other Supreme opinions recent Court concern analogous to the situation before us. In (U. Texas, Brown v. State of 47 USLW 4810 S. Supreme *5 1979), June two Court Case No. decided walking man police officers Brown and another sighted a high from each other. This was an area with and one stopped, incidence of traffic. The officers stopped testified that he Brown because " situation and we had never seen suspicious 'looked ” did Ibid. The officers subject that area before.’ misconduct, nor did claim to any specific Brown that he was armed. Brown they have reason to believe that made was arrested under Texas statute criminal act for a to refuse to his name and give " him and lawfully stopped address to an officer 'who ha[d] Holding the information.’ Ibid. Brown’s requested violated, the court reasoned: "The reasonableness of seizures that are less arrest, Dunaway than a see v. New instrusive traditional — — York, (1979); at supra, and the depends public on a balance between the interest personal security arbitrary individual’s free from Mimms, Pennsylvania interference law officers.’ (1977); v. Brignoni-Ponce, States at supra, constitutionality 878. Consideration of the such weighing gravity seizures involves a of the seizure, public degree concerns served to which interest, severity seizure advances the and the See, id., of the interference with individual liberty. e.g., 878-883.
"A central concern these balancing competing considerations in a has variety settings been to assure expectation that an individual’s reasonable of privacy isnot invasions arbitrary solely the unfettered Prouse, discretion of officers in the field. See ——, (1979); 440 U. S. United States v. Brignoni-Ponce, end, at 882. To this the Fourth Amendment that a must requires specific, seizure be based on objective indicating society’s legitimate interests require individual, particular seizure of the or that the seizure pursuant plan must be carried out to a embodying neutral limitations on the conduct explicit, of individual Prouse, supra, officers. Delaware v. at —. See United Martinez-Fuerte, States v. not contend that
"The State does to a neutral embodying stopped criteria, rather maintains the officers were they because had a 'reasonable, just that a crime had articulable been, about to be committed.’ We have being, an officer may some circumstances recognized suspect briefly although detain a he does questioning *6 'probable not have cause’ to believe that the is in activity, involved criminal as is for a required Brignoni-Ponce, supra, traditional arrest. States v. (1968). v. at 880-881. See However, we have the to have a required officers facts, reasonable that suspicion, objective on is in activity. involved criminal Delaware v. —; Prouse, supra, at United States v. Brignoni-Ponce, 882-883; supra, at also Jersey, see Lanzetta New U. S. 451
"The flaw in the State’s case is that none of the circumstances preceding the officers’ detention of appellant justified a reasonable that he was in involved criminal conduct. Venegas Officer testified at trial in appellant’s alley that the situation 'looked suspicious,’ but any he unable to supporting that is in conclusion. There no indication record that was unusual for in people alley. be fact in a neighborhood frequented users, alone, standing is not basis concluding appellant himself engaged criminal conduct. short, In the appellant’s activity was different from the of activity pedestrians other in that neighborhood. When pressed, Officer Venegas acknowledged the only reason he stopped appellant was to ascertain his identity. The record suggests understandable desire assert a police however, presence; purpose negate does Fourth guarantees. Amendment "In the absence any basis suspecting misconduct, the balance between the interest appellants to personal security and tilts privacy The Texas favor of freedom from interference. statute under which stopped and required himself identify designed is to advance a social weighty metropolitan objective large centers: crime. But even assuming is served to some degree by identification from an stopping demanding individual without specific believing basis for involved criminal activity, guarantees Fourth do it. stop Amendment not allow When such a criteria, not based on objective arbitrary risk limits. police practices abusive exceeds tolerable See — 12-13).” Prouse, Delaware at at (slip op., (Emphasis supplied.) — — (— Prouse, —) (Case 27,1979), LE2d Mar. No. decided continues to hammer officers’ law random the choosing persons they wish case, In that in a question. patrolman stopped cruiser an automobile occupied respondent and seized marijuana car plain view on the floor. Respondent was subsequently illegal indicted for possession of a controlled At substance. on hearing respondent’s motion to suppress marijuana, patrolman testified that prior vehicle he had observed neither traffic equipment nor violations *7 any suspicious activity, and that he made the stop only order to check the driver’s license the car’s registration. The patrolman was not acting pursuant any standards, guidelines, procedures pertaining spot checks, document promulgated either department or the state attorney general. The court at page opinion, of the slip stated: "The Fourth and Fourteenth implicated Amendments in this case because an stopping automobile and detaining its occupants constitute a 'seizure’ within the meaning of Amendments, those though even the purpose of limited and the resulting detention quite brief. [Cits.] essential proscriptions in the Fourth Amendment impose a standard of 'reasonableness’ upon the exercise of discretion by government officials, ' including law-enforcement agents, order "to safeguard privacy and security of against individuals ’ ” arbitrary invasion . .” addition, . the court stated: "Were unfettered an time he entered every intrusion governmental automobile, by the Fourth security guaranteed circumscribed. As seriously
Amendment would be are not of all recognized, people shorn Amendment from their protection they step Fourth they homes onto the sidewalks. Nor are shorn of they step those interests when from the sidewalks into Williams, their automobiles. See Adams "Accordingly, except we hold that those situations in which there is at least articulable and reasonable motorist is unlicensed or that an automobile is not or that either the vehicle or registered, is otherwise occupant subject to seizure for violation of law, automobile and the driver detaining order to check his registration driver’s license the automobile are unreasonable under the Fourth 14). op., Amendment.” Id. (slip p.
Likewise, in the instant case neither is one shorn of right privacy when he disembarks from an airplane Atlanta, Georgia. despite This is true the fact that some in Ft. Lauderdale calls an officer at Atlanta airport and tells him that disembarking passenger resembles a courier. To allow such would be to encourage development police practice of a searching homes as well as individuals because fit a they profile. This case but presents another attempt substitute some word or to circumvent probable cause Fourth Amendment. The court realizes that crime is rising, way some can and must be found to combat it without destroying constitutional law-abiding citizens. The Constitution and laws were and are protect fashioned to and, the innocent in the process doing, of so to ferret out the guilty. To allow the action here advocated the state would be to deny every American citizen’s constitutional privacy.