Clark v. State , 183 Ga. App. 838 ( 1987 )

Benham, Judge,

dissenting.

Being unable to agree with either the judgment or the reasoning of the majority opinion, and being frightened by the far-reaching implications of the majority opinion, I must respectfully dissent. Appellant contends the search was illegal because Agent Markonni had no probable cause to arrest him.

“ ‘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.’ ” Bothwell v. State, 250 Ga. 573, 575 (300 SE2d 126) (1983).

Like the majority, I find the language in Scott v. State, 253 Ga. 147, 149 (317 SE2d 830) (1984), very instructive: “We hold that agent Markonni’s brief investigatory stop of the petitioner was both reasonable and justified in light of the particular circumstances of this case. [Cits.] In order to ‘expand the scope’ of intrusion by a law enforcement officer, however, the officer must have either probable cause or the voluntary consent of the individual detained. [Cit.]”

Unlike the situations in other drug courier profile cases where we determined that a consensual search had taken place (see Reid v. State, 179 Ga. App. 144 (345 SE2d 635) (1986) and McAdoo v. State, 164 Ga. App. 23 (295 SE2d 114) (1982)), no such consensual search took place here since appellant was placed under arrest before the search and he did not give his consent to the search.

Taking into consideration the totality of the circumstances, there was an “articulable suspicion” to justify a stop of appellant. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). However, nothing occurred during the Terry stop to elevate the “articulable suspicion” to probable cause. See State v. McGee, 173 Ga. App. 287 (325 SE2d 899) (1985); State v. Smith, 164 Ga. App. 142 (296 SE2d 141) (1982); and Bowers v. State, 151 Ga. App. 46 (258 SE2d 623) (1979). Even the trial judge who denied the motion to suppress herein stated that this was an “extremely close case.” While I definitely see the need to closely monitor the activities of citizens at our airports to ferret out and prosecute those who deal in the disgustingly vile, illegal drug trade, I must stand sentinel to our constitutional and procedural safeguards and not allow law enforcement officers to make an impermissible leap from suspicion to probable cause. Just recently, this court affirmed the conviction in Miller v. State, 183 Ga. App. 702 (359 SE2d 683) (1987), a leg-bulge case, and I specially concurred. However, there is a considerable factual distinction between the case sub judice and Miller. Unlike Miller, where a vivid and detailed factual description by the law enforcement officer of the compelling circumstances outlined in the main opinion and special concurrence was sufficient for both a Terry stop and a probable cause arrest, the factual situation here was in no way compelling to the extent that it gave rise to a probable cause arrest. Therefore, I would reverse the trial court and grant the appellant’s motion to suppress.

I am authorized to state that Presiding Judge Banke joins in this dissent.

Decided July 16, 1987 Rehearing denied July 28, 1987. Jerry L. Patrick, Jr., for appellant. Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.