Bothwell v. State , 250 Ga. 573 ( 1983 )

Marshall, Presiding Justice.

This case is here on certiorari. Bothwell v. State, 163 Ga. App. 261 (293 SE2d 720) (1982). Presented for decision are questions concerning the use by law enforcement authorities of the so-called “drug courier profile,” as well as their use of police dogs trained to detect the smell of certain drugs. Certiorari was granted because of the importance of these questions to both the enforcement of the criminal law and the safeguarding of interests protected by the Fourth Amendment. These are the facts of the case herein.

At approximately 9:00 a.m. on August 21, 1981, special DEA Agent Gerald Chapman was posted at Gate 821 at the Atlanta International Airport, awaiting the arrival of Delta Flight 1140 from Fort Lauderdale, Florida. Present with him was DEA Agent Paul Markonni.

Chapman observed the defendant Bothwell deplane, approach a Delta gate agent, and ask about a connecting flight to Phoenix, Arizona. Chapman observed that the defendant had a revalidated ticket in the name of Michael Thomas, which he had paid for in cash and which had one baggage claim attached. Chapman proceeded to a Delta computer terminal, from which he determined that two reservations had been made in the name of Michael Thomas. A telephone number was given on only one of the reservations, and Chapman called that number but the person answering professed no knowledge of Thomas or the airline reservations.

Chapman then went to the waiting area where the defendant was sitting. He identified himself as a DEA agent, and he asked the defendant if he could speak with him for a few minutes. The defendant responded that he could. Chapman asked to see the defendant’s airline ticket, and the defendant handed it to him. The defendant told Chapman that his name was Michael Thomas but that he did not have any identification. (At this point, Chapman testified, the defendant began to behave in a nervous manner and, as the interview progressed, he acted increasingly nervous.) The defendant stated that he lived in Phoenix, and he gave a telephone number for his residence. Agent Markonni then called this number, but the person answering the telephone denied that he knew any Michael Thomas or anything about the airline reservation.

Chapman then again informed the defendant that he and Markonni were narcotics agents, and he asked the defendant whether he would allow himself and his luggage to be searched for narcotics. The defendant responded that he would. The defendant’s luggage was retrieved by Markonni, and Chapman suggested that they search the luggage in a nearby Delta office in order to avoid causing the defendant any public embarrassment. The defendant agreed.

A pat-down search of the defendant revealed no narcotics or drugs. Before the luggage was searched, the defendant withdrew his consent. At that point, the defendant was allowed to leave and he continued on his flight to Phoenix. The suitcase was detained, and an Atlanta police officer was contacted who came to the airport with a dog who had been trained to detect the presence of drugs through his sense of smell. By biting and scratching the suitcase, the dog indicated that there were drugs therein. A search warrant was then obtained for the suitcase. The search of the suitcase produced a plastic bag containing cocaine. A warrant was then issued for the defendant’s arrest. He was arrested as he was deplaning in Phoenix, and it was determined that his name is Bothwell and not Thomas.

Agent Chapman testified that he decided to interview the defendant because he fit several aspects of the so-called drug courier profile, i.e., traveling alone, traveling from an identified source city, flying under a false name, carrying little or no luggage, purchasing an airline ticket with cash, acting very nervous, and giving false information to the airline. Chapman further testified that the total interview time of the defendant was between five and ten minutes and that he never touched the defendant except during the pat-down.

The trial court denied the defendant’s motion to suppress the cocaine, and he was convicted of the felony offense of trafficking in cocaine and the misdemeanor offense of giving a false name to a law enforcement officer. On appeal, the Court of Appeals affirmed. We granted certiorari. For reasons which follow, we affirm.

1. “The seven primary characteristics [of the drug courier profile] are: (1) arrival from or departure to an identified source city; (2) carrying little or no luggage, or large quantities of empty suitcases; (3) unusual itinerary, such as rapid turnaround time for a very lengthy airplane trip; (4) use of an alias; (5) carrying unusually large amounts of currency in the many thousands of dollars, usually on their person, in briefcases or bags; (6) purchasing airline tickets with a large amount of small denomination currency; and (7) unusual nervousness beyond that ordinarily exhibited by passengers.

“The secondary characteristics are (1) the almost exclusive use of public transportation, particularly taxicabs, in departing from the airport; (2) immediately making a telephone call after deplaning; (3) leaving a false or fictitious call-back telephone number with the airline being utilized; and (4) excessively frequent travel to source or distribution cities.” United States v. Berry, 670 F2d 583, 599 (5th Cir. 1982).

“[C]ases involving the legality of stops, interrogations, and searches of suspected drug smugglers by law enforcement officers at airports . . . raise fundamental constitutional issues concerning the Fourth Amendment safeguards protecting individuals against unreasonable searches and seizures.” Id., at p. 588. Accordingly, in Berry the former Fifth Circuit Court of Appeals, sitting en banc, has issued an opinion attempting to provide guidance in this difficult area.

2. Whether a given contact between the police and citizens constitutes a “seizure” within the meaning of the Fourth Amendment — and, if so, is “reasonable” — is determined by “balancing the government interest involved against the nature of the intrusion on the individual.” United States v. Berry, supra, at p. 590. See United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975); Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Here, the interest of the individual is the right embodied in the Fourth Amendment to be free from arbitrary interference by law enforcement authorities. The majestic purpose underlying this Fourth Amendment right is nothing less than the vouchsafement of our democratic form of government by insuring that it is not turned into a police state. Balanced against the interest of the individual is the very substantial interest of government in terminating the widespread and proliferating practice of trafficking in illegal drugs. “The toll on our society in lives made wretched, in costs to citizens, and in profits of gross size funnelled to the most odious criminals, is staggering.” United States v. Berry, supra, at p. 594. It can also be noted that these exorbitant profits are used to facilitate trafficking in the drug through the bribery of public officials, and this corruption of public officials in itself poses a grave threat to society.

Using a balancing-of-interests test, the Supreme Court in Terry v. Ohio, supra, held that even though a police pat-down of a potentially dangerous individual may constitute a seizure within the meaning of the Fourth Amendment, it can be based on a showing of “reasonable suspicion” to believe that criminal activity is afoot rather than the more rigorous standard of “probable cause” to believe that a particular crime has been committed (the probable-cause standard being required for a full-blown arrest). See also Adams v. Williams, 407 U. S. 143 (92 SC 1921, 32 LE2d 612) (1972). On the other hand, it was held in Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979), that the stopping of automobiles on the highways at the unbridled discretion of law enforcement officials cannot be justified by the state’s interest in promoting public safety on the roads.

Of course, the Fourth Amendment in no way prohibits voluntary interaction between citizens and police. Coolidge v. New Hampshire, 403 U. S. 443, 488 (91 SC 2022, 2049, 29 LE2d 564) (1971); Terry v. Ohio, supra. “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Terry v. Ohio, 392 U. S., supra, at p. 19, n. 16.

3. On two occasions, the United States Supreme Court has considered use of the drug courier profile as a basis for conducting a seizure of an individual and search for drugs.

In United States v. Mendenhall, 446 U. S. 544 (100 SC 1870, 64 LE2d 497) (1980), the defendant had been stopped by DEA agents because her behavior fit aspects of a drug courier profile. She was asked to consent to a search. She then began to disrobe and took packets containing heroin from her undergarments.

Two Justices of the United States Supreme Court concluded that there had not been a “seizure” of the defendant and that she had consented to the search. Three Justices opined that even if there had; been a seizure it was justified by reasonable suspicion. Four Justices dissented on the ground that the defendant’s conduct was insufficient to lead a police officer reasonably to conclude that criminal activity was afoot.

In Reid v. Georgia, 448 U. S. 438 (100 SC 2752, 65 LE2d 890) (1980) , the Court in a per curiam opinion held that a DEA agent could not have reasonably suspected the defendant of wrongdoing based on the fact that his behavior fit the following aspects of the drug courier profile: (1) arrival at the Atlanta airport in the early morning hours from Fort Lauderdale, a principal place of origin for cocaine shipments; (2) the defendant and his companion appeared to be concealing the fact that they were traveling together; and (3) they had no luggage other than shoulder bags.

The Court noted that these circumstances describe a very large category of presumably innocent travelers who would be subject to virtually random seizures were the Court to conclude that as little foundation as there was in this case could justify a seizure. 448 U. S., at p. 441. Therefore, the judgment of the Court of Appeals of Georgia, holding that the stop of the defendant was a permissible Terry-type seizure, was reversed. Two Justices dissented on the ground that there had been no seizure of the defendant. Three Justices concurred, noting that the issue as to whether there had even been a seizure of the defendant remained an open question.

On remand, the Georgia Court of Appeals, without comment, affirmed the order of the trial court sustaining the defendant’s motion to suppress. We granted certiorari and reversed the Court of Appeals, holding that there had been no seizure of the defendants under the facts of the case. State v. Reid, 247 Ga. 445 (276 SE2d 617) (1981) .

4. In United States v. Berry, supra, p. 590, the federal Court of Appeals held that nothing in the Fourth Amendment prohibits police from approaching an individual in order to solicit his or her help in the apprehension of criminals. However, “[o]nce a stop has been held a seizure, it can be constitutional only if based upon reasonable suspicion.” Id.

In Berry, the court held, in accordance with Mendenhall, that a stop by police of an individual suspected of drug trafficking does not become a seizure, thereby subject to the rigors of the Fourth Amendment, unless “ ‘in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Id., at p. 595. “ ‘Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.’ ” State v. Reid, 247 Ga., supra, at p. 449. As previously stated, a seizure can be justified only if it is based upon reasonable suspicion, and “[t]he Supreme Court has defined reasonable suspicion as ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant (an) intrusion.’ ” United States v. Berry, supra, at p. 598.

In accordance with Reid, the court in Berry held that “because most of the characteristics [of the drug courier profile] are applicable as much to innocent as to suspect individuals, the mechanistic use of the profile by the courts without examining the totality of the circumstances could result in blanket approval of police seizures of innocent citizens.” Id., at p. 599.

However, this is not to say that the profile characteristics have no proper role in making the determination as to the existence of reasonable suspicion. The profile is a valuable administrative tool “in guiding law enforcement officers toward individuals on whom the officers should focus their attention in order to determine whether there is a basis for a specific and articulable suspicion that the particular individual is smuggling drugs.” Id., at p. 600, n. 21.

Relying on Dunaway v. New York, 442 U. S. 200 (99 SC 2248, 60 LE2d 824) (1979), United States v. Hill, 626 F2d 429 (5th Cir. 1980), and United States v. McCaleb, 552 F2d 717 (6th Cir. 1977), the court in Berry further held that if an individual who has been seized is required, without his consent, to accompany the police from the airport concourse to an airport office, this is a full-blown arrest requiring probable cause rather than mere reasonable suspicion; however, consent to the search, if not a product of the illegal arrest, removes the taint of illegality arising therefrom. Berry, supra, at pp. 601, 602.

5. The facts in Berry were as follows: the defendants, Dudley Berry and Jessica Zabish, were observed by DEA agents deplaning from a flight from Miami to Atlanta. Both defendants appeared nervous, and one of the DEA agents was vaguely aware of having seen a photograph of Berry. When the DEA agents confronted Berry and Zabish outside the airport terminal and identified themselves, Zabish and Berry gave false names. Berry at first stated to one of the agents that he was traveling alone., but he later admitted that Zabish was traveling with him. When Berry produced identification with the name Dudley Berry on it, the DEA agent recognized the name as that of a man for whom he had been told to watch.

When the defendants were asked to accompany the agents to a DEA office, Berry agreed. Once there, the defendants agreed to a search during the course of which cocaine was found hidden in a file shield inside a shaving bag in Berry’s luggage. During a search by a female officer of Zabish’s person, she tried to swallow a container of cocaine. They were then arrested.

The court in Berry found that the DEA agent’s merely approaching Berry and asking to talk to him did not constitute a seizure. The court further found that by the time there was any “seizure” of Berry, the DEA agents knew that the defendants matched some characteristics of the drug courier profile, were trying to hide their joint travels, and were traveling under aliases. One of the DEA agents had also been told to watch for a drug smuggler named Dudley Berry. The court found that the foregoing factors could serve as the basis for reasonable suspicion focused on Berry that would justify a seizure. Critical to this finding was the fact that Berry had misled the DEA agent concerning his traveling companion and concerning his true identity.

The Berry court agreed with the magistrate’s finding that the defendants did not voluntarily accompany the DEA agents to the DEA office, and the court held that this was an arrest rather than a mere seizure. Although the court indicated that the defendants’ giving of false names to the DEA agents (a misdemeanor under OCGA § 16-10-25) (Code Ann. § 26-2506) would constitute probable cause for the arrest, the court decided the case on the ground that the defendants’ voluntary consent to the search removed the taint of any illegality concerning the arrest. Critical to this finding was the fact that the defendants had been told that they were free to refuse consent to a search and that they could consult with an attorney; in addition, they were allowed to consult with eaqh other and were offered the use of a telephone.

6. The former Fifth Circuit Court of Appeals has also held that a law enforcement officer may use a canine trained in drug detection to sniff luggage in the custody of a common carrier; that the passenger who owns the luggage and has turned it over to the airline has no reasonable expectation of privacy in the air space surrounding the luggage; and that the use of a canine’s enhanced olfactory sense to sniff for the presence of controlled substances in the luggage without opening the luggage does not constitute a search within the meaning of the Fourth Amendment. United States v. Goldstein, 635 F2d 356 (5th Cir. 1981) and cits.

In Goldstein, DEA agents posted at the Orlando International Airport became suspicious of the defendants and examined the luggage they had checked with the airlines. A police dog trained to detect the presence of cocaine, marijuana, and heroin reacted to the presence of drugs when the defendants’ bags were placed before the dog. The defendant Goldstein refused to consent to a search of his luggage, and a search warrant was therefore obtained.

Decided February 8, 1983 — Rehearing denied February 22, 1983. Douglas N. Peters, for appellant. Michael D. Anderson, William L. McKinnon, Jr., Assistant District Attorneys, for appellee.

The Court of Appeals held that the DEA agents’ decision to retrieve Goldstein’s luggage from the air carrier and subject the luggage to a sniff by the police dog did not constitute a search or seizure under the Fourth Amendment. The Court of Appeals further held that “once [the dog] positively reacted to the presence of drugs in the Goldstein bag, that reaction along with the other facts present supplied the DEA agents with the requisite probable cause to seek a warrant in order to search the luggage and to arrest Kern and Goldstein.” United States v. Goldstein, supra, 635 F2d at p. 362.

7. In the case before us, it is only necessary to hold, in accordance with Berry and Goldstein, that the police dog’s positive reaction to the presence of drugs in the defendant’s suitcase, along with the other facts present, supplied the DEA agents with requisite probable cause to seek a search warrant for the luggage.

In so holding, however, we do not mean to imply that the search of Bothwell’s luggage would have been unauthorized absent the dog’s reaction to the presence of the drugs. Here, Bothwell gave false information to the airline concerning his call-back telephone number, as well as false information to the DEA agent concerning the telephone number of his residence. These two factors, along with the other facts present, supplied the DEA agent with reasonable suspicion, or probable cause, to believe that Bothwell was transporting drugs.

Judgment affirmed.

All the Justices concur, except Hill, C. J., Smith and Bell, JJ., who dissent.