Defendant Cotton appeals his conviction of the offenses of trafficking in cocaine, possession of marijuana with intent to distribute, driving under the influence of drugs, and following too closely. The sole enumeration of error maintains that the trial court erred by failing to suppress and exclude from admission at trial “evidence that was seized in violation of the Fourth and Fifth Amendments to the United States Constitution and the correlative provisions of the 1983 Constitution of the State of Georgia.” Held:
A Georgia State Patrol Trooper on patrol on 1-85 in Jackson County was contacted via citizens band radio and told of a motorist in a Honda who “was smoking a joint.” The officer proceeded to overtake the described vehicle and found it approximately five feet behind a truck traveling on the interstate highway. A traffic stop was initiated and the Honda pulled over. The trooper exited his vehicle and approached the Honda. When defendant rolled down his window, the trooper immediately noticed a strong odor of marijuana and could see smoke. Defendant complied with the trooper’s request that he step out of the vehicle and produce his driver’s license and proof of insurance. The trooper told defendant that he had pulled him over because he had been reported to have been smoking a joint in the vehicle on the road and because he was following the truck very closely. Defendant denied smoking marijuana, denied possession of contraband, and denied consent to search the vehicle. The trooper asked defendant to sit in the rear seat of his patrol car, but first patted him down and asked him to empty his pockets, revealing that defendant had approximately $2,100 in his pocket. The trooper informed defendant that he was going to call a drug dog whereupon defendant told the trooper that “[t] here’s a little in a bag in the back seat. . .” and consented to a search of his vehicle. The search of the car revealed cocaine, marijuana, and an additional approximately $4,000 of currency.
The stop of defendant’s vehicle was authorized by the trooper’s observation of the traffic offense of following too close. While the trooper acknowledged that he would not have stopped defendant but for the tip that defendant had been smoking a joint, and defendant has argued that the basis for the stop was pretextual, an officer’s ulterior motive is of no consequence under the holding in
Whren v. United States,
The application of
Whren,
which was decided subsequent to the events at issue in this case, does not result in any violation of ex post facto constitutional provisions. As
Whren
did not result from a change or unforeseeable judicial enlargement of a criminal statute the ex post facto provision is inapplicable.
Moore v. Ray,
After stopping defendant’s car, the tip received by the trooper concerning illegal drug use was corroborated by the odor of marijuana coming from defendant’s car. This provided a reasonable basis for the trooper’s suspicions that marijuana was present in the car and that defendant was driving under the influence of marijuana.
Taylor v. State,
Before placing defendant in his patrol car, the trooper patted him down in order to check for weapons. The trooper also asked defendant to empty his pockets. This resulted in the discovery that defendant had approximately $2,100 on his person. The evidence shows no duress and that defendant voluntarily consented to relinquish the contents of his pockets.
Brown v. State,
The trial court suppressed evidence as to defendant’s statement granting consent for the search of his vehicle after applying the “reasonable person” test under
State v. Wintker,
Defendant unnecessarily argues that his consent to search his vehicle given while seated in the back of the patrol car was obtained in violation of his rights under
Miranda v. Arizona,
However, defendant’s further argument that the
Miranda
violation warrants suppression of the physical evidence found in the automobile was rejected by the trial court, a conclusion with which we agree. Although the actual words spoken by defendant to give consent are suppressed under a Fifth Amendment analysis, that exclusionary rule does not apply to the fruits of the voluntary but
Miranda
tainted statement.
Wilson v. Zant,
Nor do we find merit in defendant’s reliance upon the 1983 Constitution of the State of Georgia, Art. I, Sec. I, Par. XVI, which provides that: “No person shall be compelled to give testimony tending in any manner to be self-incriminating.” The statutory embodiment of this provision which has been recognized as providing broader protection than the Fifth Amendment is OCGA § 24-9-20. However, that protection is not unbounded, and the provision has been construed to limit the State from forcing the individual to perform some act which will incriminate him or her.
Creamer v. State,
Judgment affirmed.