Polke v. State

Beasley, Judge,

concurring in part and dissenting in part.

I fully concur in Divisions 3 through 9 but not in Divisions 1, 2, and consequently 10, for in my opinion the search which yielded the cocaine met the requirements of the Fourth Amendment.

1. In determining the validity of a search which is deemed valid after a suppression hearing, the trial evidence is also considered. O’Donnell v. State, 200 Ga. App. 829, 830 (1) (409 SE2d 579) (1991). In addition, we are governed by the rule that “the trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. Lego v. Twomey, 404 U. S. 477 [(92 SC 619, 30 LE2d 618)] (1972); [Cits.]” Woodruff v. State, 233 Ga. *312840, 844 (3) (213 SE2d 689) (1975).

Appellant complains not only that the court erred in denying the motion to suppress but also, for the same reason, in admitting such evidence at trial and denying the amended motion for new trial.

The composite of the evidence shows that “ ‘probable cause existed for a belief [by the police] that [Polke] was currently in unlawful possession of cocaine. . . .’ [Cit.]” Salter v. State, 198 Ga. App. 242, 243 (1) (401 SE2d 541) (1990). This is sufficient to authorize a warrantless search when there are exigent circumstances, which here were created when the tips are taken in concert, and to them are added the police knowledge of the drug-proneness of the geographical area to which they were directed, together with the corroboration of the tips by Polke’s presence where the information said he would be, plus his deliberate evasion of the police in that very locale and at that time, clearly indicating a desire to avoid even talking to them.

As repeated in Salter, supra: “Under the standard set forth by the United States Supreme Court in Illinois v. Gates, [462] U. S. [213] (103 SC 2317, 76 LE2d 527) (1983), probable cause may be predicated on an informant’s tip only if, under the ‘totality of the circumstances,’ including the ‘veracity’ and ‘basis of knowledge’ of the informant, there is a ‘fair probability’ that contraband or evidence of a crime will be found in a particular place. Id. at 4716.” Felker v. State, 172 Ga. App. 492, 494 (4) (323 SE2d 817) (1984).

There was not one informant here, but several, and their various pieces of information added up and all pointed in one direction, i.e., that Polke then had cocaine in his possession. The police were not directed to an unidentified individual. They knew they were looking for Polke, and the testifying officer knew him, having talked to him out on the street several times. Another officer also knew him and had arrested him previously, and a third officer who remained at the station had known him for two years. The chief of police had talked to him a number of times. His residence was even then under surveillance for drug activity, as it had been for two months.

According to the officer who testified at the motion hearing, the person who had provided them with reliable drug crime information in the past called, “saying that there was (sic) drugs being sold in the Liberty Street area and we (the police) know who it is.” This was between 10:00 and 11:00 p.m. This officer, an investigator who had twelve years’ police experience, immediately went with two others to the Liberty Street area looking for Polke. They had made numerous drug arrests in that area and had had “hundreds of complaints” about people “standing on the corner flagging people down selling drugs.” These complaints came “at least every day several times a day.”

The other person from whom the officer received information *313earlier that evening had been arrested for cocaine but was no longer under arrest. He was being interviewed by the officer and told him that Polke had drugs on him that night, specifically two snuff boxes inside his shorts, and a lot of money in his boots. He had seen these stashes several times. These particular details were consistent with other information the police had received about Polke. This person had given information in the past which the officer believed was true, although he had not tried to corroborate it.

Polke was spotted in the vicinity of where it had been reported he would be. He was not in any of the vehicles he drove and he was not on his motorcycle; he was on foot. When he saw the police, he made an abrupt turn and deliberately changed his course, twice. Ordinarily when he would see the chief of police, he would run up and talk, but this time he moved away instead, raising the chiefs suspicion that something was awry. During the first detour across the railroad track, through the weeds, he walked more hurriedly than he usually did. He flagged a car and talked with the occupants for a few minutes. When the police car approached, he started to run, but the officer jumped out and stopped him.

“Flight at the approach of law officers is a strong indicium of mens rea. [Cit.] Indeed, flight coupled with other circumstances has been held to establish probable cause for an immediate arrest. Scott v. State, 193 Ga. App. 74 (387 SE2d 31) (1989); State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989).” State v. Grimes, 195 Ga. App. 773, 774 (1) (395 SE2d 42) (1990). In Billoups, the court analyzed the circumstances and concluded “that in the context of the time of day and the location, the [suspect’s] flight from the officer provided probable cause for a belief that he was in possession of unlawful contraband, with the result that the search was authorized as a search incident to a valid arrest.” 191 Ga. App. at 835.

In Polke’s case, the circumstances were much stronger and the police had a more knowledgeable underlying base. As in Grimes, so here: “However, even assuming that the other circumstances which were present in the instant case were not such as to establish probable cause for [Polke’s] immediate arrest, his flight ‘was nevertheless clearly a sufficiently suspicious . . . response to the (approach of law officers) so as to give (them) at least a reasonable suspicion of [Polke’s] criminal activity and to warrant further investigation.’ [Cit.]” 195 Ga. App. at 774.

When the officers finally stopped Polke and the testifying officer frisked him, he tried to stop the frisk by repeatedly pushing his hand away and loudly telling him to stop the frisk as the officer told him he wanted to talk to him about some drugs. His girl friend came running up and tried to interfere. The officer felt a large bulge in his front pocket and thought it could be a weapon. He put his hand in the *314pocket and pulled out a large sum of money, which appeared to be the proceeds of drug sales because of its amount. Polke also had a plastic bag full of money in his cowboy boot. The total was over $9,000 in denominations of 10, 20, 50, and 100.

Decided February 20, 1992 Reconsideration denied March 11, 1992. Stubbs & Associates, M. Francis Stubbs, for appellant. Richard A. Malone, District Attorney, William S. Askew, Assis*315tant District Attorney, for appellee.

*314The frisk was justified under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). The officers had reasonable articulable grounds under the totality of the circumstances, not arising simply at the moment but including what led up to it, to suspect that defendant was armed and engaged in criminal activity; a frisk was necessary for the protection of the officers out on the street in a high crime area at night; the frisk was limited to a search for weapons in Polke’s pocket and boot, both of which contained bulk which suspicioned the presence of a weapon. See Jackson v. State, 191 Ga. App. 439, 440 (1) (382 SE2d 177) (1989).

The protective measures taken by the officers were reasonable under the circumstances, which is the key question. Edwards v. State, 165 Ga. App. 527, 528 (301 SE2d 693) (1983). The fruit of the frisk, when considered under all the circumstances (Illinois v. Gates, supra), brought the officers to a point at which there was probable cause to arrest and subsequently search defendant without warrant rather than releasing him from the brief investigatory stop. The facts in this case surpassed the quality and quantity of those which authorized the search in Jones v. State, 195 Ga. App. 868, 869 (2) (395 SE2d 69) (1990), wherein these principles were applied.

Polke was arrested and transported to the jail, where a further search of his person, incident to the arrest, revealed the cocaine in two snuff boxes which were concealed between two pairs of underpants which Polke was wearing and for which cocaine (306 pieces in one box and 70 pieces in the other) he was convicted of the offense of trafficking. OCGA § 16-13-31 (a) (1).

Thus, the motion to suppress was authorized as there, was no Fourth Amendment violation, and the law did not require the exclusion of the evidence. Nor was a new trial demanded by these grounds.

2. The evidence as to the cocaine charge was sufficient to meet the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

I am authorized to state that Presiding Judge McMurray, Presiding Judge Birdsong and Judge Andrews concur in this opinion.