Peck v. State

BEASLEY, Judge,

concurring specially.

I fully concur in Divisions 1(b), 1 (c) and 2, but I do not concur in the analysis in Division 1 (a).

In the trial court and on appeal, Peck challenged the stop as being in violation of his federal constitutional rights. Accordingly, the test is whether the officer had a “reasonable suspicion” that Peck was engaged in criminal activity at the time. Alabama v. White, 496 U. S. 325, 329-331 (110 SC 2412, 110 LE2d 301) (1990). That is what is needed to make an investigative stop, which is what the officer testified he was engaged in and what it was in fact. Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979).

The officer “must be able to articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ ” United States v. Sokolow, 490 U. S. 1, 7 (109 SC 1581, 104 LE2d 1) (1989). A stop “must be justified by ‘specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.’ ” Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994). The officer must have knowledge of something which would “ ‘warrant a man of reasonable caution in the belief’ *275that [a stop] was appropriate.” Terry, supra at 22. The totality of the circumstances is to be taken into account when determining whether the stop is constitutionally valid. United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981).

To stop a person in a vehicle from proceeding as the person intends thus requires a lower grade of justification than probable cause, which is needed to arrest or search. “Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.” Alabama v. White, supra at 330.

So, the unverified tip of an informant may carry enough indicia of reliability to justify the officer’s forcible stop of the person operating the vehicle. Adams v. Williams, 407 U. S. 143, 147 (92 SC 1921, 32 LE2d 612) (1972). In that case, the informant, who was known to the officer personally and had provided information in the past, approached the officer and advised that a person seated in a car nearby was carrying narcotics and had a gun at his waist. The information was immediately verifiable by a stop, and if it was untrue, the informant was subject to arrest for making a false complaint.

Officer Spillers stopped Peck on the strength of two telephone calls from an unidentified “confidential source” whose information had prompted Spillers and two other officers to surveil Peck’s house. The three officers were in Spillers’ unmarked police pickup truck, with one of the officers in the bed of the truck while they watched Peck’s mobile home. When Peck exited his home and began to drive off in a small gray van, Officer Spillers stopped him by using the blue emergency light on his dashboard. Peck was halted at a stop sign at an intersection the distance of seven premises from his home, at about 5:20 p.m. on the evening of June 9, 1995.

The source had called Spillers about 3:30 p.m. that afternoon, named Peck as being involved in more than a street level type distribution of marijuana and gave details as to how the distribution took place, from where the marijuana was supplied and by whom, the vehicles involved in delivering it to him, the way he distributed it and where it was kept. The source had given Spillers information for about two years, most often by telephone, and the information had been corroborated in at least two other drug investigations although no action was taken and no arrests made.

The source stated that within the past week the source had been at Peck’s home and personally observed a quantity of marijuana being kept and stored there in Peck’s possession. The source was described as “a mature person who has previously been involved in *276similar types of criminal activity.” The source described the residence and its location and said the source had a close relationship with Peck. The source made statements to Officer Spillers that were against the source’s penal interest. The source supplied Peck’s wife’s name and stated they owned a 1987 Ford Ranger pickup truck. This was verified, as was their residence and directions to it.

Decided August 27, 1997. Robert E. Andrews, for appellant. Lydia J. Sartain, District Attorney, Lucy K. Henry, Assistant District Attorney, for appellee.

The second telephone call from the confidential source came before the stop. The source advised that Peck received a shipment of marijuana from his suppliers, currently had it in his possession, and was preparing to distribute it. In one of the calls the source stated that Peck “occasionally” would make deliveries. The officer stopped Peck on the suspicion that he might be delivering some of the marijuana, although he testified that he told Peck he stopped him because he had information Peck had marijuana at his residence.

Although the vehicle Peck used to leave his residence was different from the one the source had described and which was confirmed as belonging to Peck and his wife, and although the information was only that Peck “occasionally” made deliveries, it was not unreasonable or a mere hunch, caprice, or inclination that Peck was in possession of marijuana when he drove off. See Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993). According to the source, there was drug activity that day, by way of Peck’s receipt of a shipment, and it would be reasonable to deduce that Peck was beginning to distribute it so as to move it out of his house in exchange for money.

On this basis, I concur that the investigative stop did not contravene Peck’s Fourth Amendment right to be free of unreasonable seizure. Compare State v. Williams, 225 Ga. App. 736 (484 SE2d 775) (1997), where the information which prompted the invalid stop came only from an anonymous tipster, was not corroborated, and was not detailed.