On June 11, 1981, in an attempt to identify domestic drug couriers, Senior Agent Paul J. Markonni of the Atlanta Airport Detail of the Drug Enforcement Administration (“DEA”) was routinely observing passengers deplane from a commercial flight arriving at the Atlanta International Airport from Fort Lauderdale, Florida, a major source city for the importation and distribution of illegal drugs. Agent Markonni’s attention was attracted to deplaning passenger Paul M. Smith because Smith “appeared to be looking around and staring at people in the arrival area” so much so that he “bumped into a couple of passengers and had to excuse himself.” His suspicion aroused, Agent Markonni followed Smith to the gate area of his connecting flight to Tulsa, Oklahoma. Smith sat down within the gate area until the ticket agent returned, whereupon Smith checked in for his flight to Tulsa. Agent Markonni then obtained from the ticket agent Smith’s surrendered ticket from which he learned Smith’s name, destination, and that the ticket had been paid for by credit *143 card. From information gained from Smith’s reservation record obtained with the help of an airline employee, and from a subsequent telephone call to the Fort Lauderdale hotel listed as Smith’s call-back number, Agent Markonni surmised that Smith was not a Florida resident and that he had made his airline reservation to Tulsa the morning of the flight. Based upon Smith’s hotel check-in time, the agent speculated that Smith had spent approximately nineteen hours in Fort Lauderdale, most of them nighttime hours.
Dressed in casual clothes and carrying a concealed weapon, Agent Markonni approached Smith who was still seated within the gate area. Two other out-of-uniform officers armed with concealed weapons took positions designed to be nearby, yet not so close as to be noticed by Smith. Taking the seat beside Smith, Agent Markonni identified himself as a federal officer and asked to speak with him. Upon Agent Markonni’s request, Smith produced his ticket, driver’s license and his name. Both the ticket and license were in Smith’s name. In response to the agent’s questioning regarding the purpose of his trip, Smith stated that he had gone there to look at an airplane. As the interview proceeded, Smith appeared to be increasingly nervous. Agent Markonni then told Smith that he was a narcotics officer and began to question Smith as to whether he was carrying contraband drugs, either on his person or in his luggage. When Smith responded negatively, Agent Markonni asked to conduct a search of his person, specifically his boots. Smith raised his trousers and allowed the agent to look into the boots, wherein a bulge was discovered. This, according to Smith, was cash in the amount of “a few thousand dollars.” Smith exhibited signs of an increasingly nervous demeanor.
Agent Markonni began a series of requests to search Smith’s luggage and Smith persisted in refusing on the basis he “just [did not] think [he] should have to allow a search of his luggage.” During this time, the agent confronted Smith with his knowledge of Smith’s itinerary and his suspicion that the cash was leftover drug money from the purchase of drugs which the agent believed were in Smith’s luggage. Agent Markonni gave Smith the Miranda warnings which Smith acknowledged that he understood. Subsequently, Agent Markonni again accused Smith of carrying drugs in his luggage and told him that if he did not consent to a search in Atlanta, he would be met by law enforcement officials and, if possible, drug dogs at his Tulsa destination. When Smith declined to consent, the agent told him that he was free to leave and then directed Smith’s attention to the two officers who had witnessed their conversation.
While Smith waited in the gate area, Agent Markonni then retrieved Smith’s suitcase from the airline by providing Smith’s name and the last four digits of the baggage claim check number *144 garnered from his earlier inspection of Smith’s ticket. The suitcase, previously described by Smith as brown Samsonite, was a silver Halliburton instead. The suitcase bore Smith’s name and correct address. Smith acknowledged the suitcase as his and, after the agent read him his rights regarding the search of his personal property, asked to talk with a lawyer. Agent Markonni told Smith that he was free to leave, but that the suitcase would be detained so that a search warrant could be obtained to determine its contents. When the agent left to begin the process of search warrant application, the other two officers remained in the area to watch Smith to be certain that he boarded his plane to Tulsa, which he did.
Upon his sworn affidavit and oral statements, Agent Markonni obtained a search warrant from Judge Ed Brock of the Atlanta Municipal Court. The agent searched the suitcase which was found to contain one kilogram of a substance suspected to be cocaine. After a hearing the trial court granted Smith’s motion to suppress the evidence found in the suitcase. The state appeals.
1. The state enumerates as error the trial court’s grant of Smith’s motion to suppress and raises various contentions in support of this general enumeration. The state first challenges the motion as defective on its face for failure to comply with Code Ann. § 27-313 (b). Also asserted is Smith’s lack of standing to move to suppress evidence gained from the search. These contentions will not be considered on appeal as they were not raised in the trial court.
State v. Thomas,
2. The state next challenges the trial court’s suppression of the evidence at issue, claiming an erroneous application of the controlling law to the evidence adduced at the hearing. The order sustaining Smith’s motion stated that the proper scope, duration and intent of a permissible “Terry confrontation” had been exceeded when the interrogation had persisted to the point of harassment despite Smith’s assertion of his right of privacy. Further, the proper scope of such confrontation was exceeded with the seizure of Smith’s suitcase without his consent and over his objection. The trial court then found that the search warrant was based upon unlawfully obtained evidence. The state asserts that no “Terry confrontation” occurred, and that even if it did, the legality of the search warrant was not affected by it.
“The Fourth Amendment provides that ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated — ’ There is no question in this case that [Smith] possessed this constitutional right of personal security as [he] walked through the [Atlanta] Airport____” United States v. Mendenhall,
At the time Agent Markonni initially accosted Smith, no record evidence suggests, nor does the state assert, the existence of probable cause to seize Smith or his effects. Therefore, the original encounter between the agent and Smith must be justified and governed by Terry v. Ohio, supra. “Drug cases are no different from any other cases.”
State v. Johnson,
Agent Markonni testified at the suppression hearing that his initial reason for following Smith was to see what name was on his ticket “[b]ecause he was the only person who came in on the Fort Lauderdale flight that even aroused my suspicions.” This, according to the agent, “was likely because of his conduct.” From the transcript it is apparent that the agent measured Smith’s conduct against the DEA “drug courier profile,” a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics. See Reid v. Georgia,
In order for the “Terry confrontation” or “Terry stop” to have been valid, the foregoing information must have provided articulable facts leading to a reasonable suspicion of Smith’s criminal conduct. Without such specific facts
articulable at the time of the stop,
the investigative “Terry confrontation” can not be justified. United States v. Ballard, 573 F2d 913 (2) (5th Cir. 1978). Use of the “drug courier profile” and an agent’s own experience have been recognized as valid tools in detecting criminal activity. See
Berry v. State,
Assuming arguendo that the “Terry confrontation” was permissible, did the actions of Agent Markonni overreach the minimal intrusion authorized by Terry and convert an otherwise legal investigatory stop to an illegal detention? See
Radowick,
supra at (3). The “Terry confrontation” is subject to strict boundaries regarding duration, intent, and scope. It has been described by this Court as “a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification,... and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop.”
Radowick,
supra at 237;
Bowers v. State,
“[W]hen airport security is not involved, every passenger who has luggage checked with an airline enjoys a reasonable expectation of privacy that the contents of that luggage will not be exposed in the absence of consent or a legally obtained warrant.” United States v. Goldstein, 635 F2d 356, 361 (5th Cir. 1981). There is no question that Smith did not consent to the search of his suitcase; instead, the search, as noted by the trial court, was over Smith’s objection. The information on which the state claims probable cause for the search warrant was gained through the overreaching condemned in Radowick and as such was illegally obtained and invalid. While this court realizes that the public interest in deterring drug trafficking through the use of commercial airlines is great, so is a citizen’s right to privacy. “[0]ne [is not] shorn of his right to privacy when he disembarks from an airplane in Atlanta, Georgia.” Bowers, supra at 54 (on motion for rehearing). The overreaching here exhibited will not be sanctioned by this court, and we affirm the order of the trial court suppressing the evidence at issue.
Judgment affirmed.