Grandberry Mem Final

IN THE COURT OF APPEALS STATE OF GEORGIA
MICHAEL GRANDBERRY
Appellant
VS.
Case No: A07A2366 STATE OF GEORGIA

Appellee
BRIEF OF APPELLANT
Michael Grandberry #500458 Coastal State Prison P.O. Box 7150 Garden City Georgia 31418-7150
MELVIN R. HORNE ATTORNEY FOR APPELLANT P.O. BOX 188 CAIRO, GEORGIA 39828 (229) 377-0968 SBN 367465
TABLE
OF
CONTENTS
PART I..............................................................................4
a. The Court finds that the stop of the vehicle was justified due to the allegation of an armed robbery concerning the vehicle, which was corroborated by the callers correct statement of the vehicles whereabouts and which direction it would be going...............5 b. Once the stop was conducted, the detention of the Defendant and his vehicle was not unreasonable, as the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant............................................................................................................5 c. The use of the drug dog was legal in that a free air sniff does not constitute a search. ..............................................................................................................................................5 d. Once the drug dog alerted on a specific area of the car, it gave the officers probable cause to conduct a warrantless search of the vehicle.........................................................5
PART II...........................................................................13 PART III..........................................................................16 CERTIFICATE OF SERVICE.........................................................34
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P.O. BOX 188 CAIRO, GEORGIA 39828 (229)377-0968 MELVIN R. HORNE
TABLE
OF
AUTHORITIES
GEORGIA CASES
Archer v. State, 456 S.E.2d 754, 217 Ga. App. 257 (1995)................................................................20 Barnes v. State, 228 Ga. App. 44, 44 (491 SE2d 116) (1997)............................................................15 Davidson v. State, 257 Ga.App. 260, 570 S.E.2d 698 (Ga.App. 2002)..............................................24 Duke v. State, 257 Ga.App. 609, 571 S.E.2d 414 (Ga.App. 09/11/2002)...........................................21 Garlington v. State, 268 Ga.App. 264, 601 S.E.2d 793 (Ga.App. 2004)............................................20 Goddard v. State, 244 Ga. App. 730, 731 (1) (536 SE2d 160) (2000)................................................15 Montero v. State, 245 Ga.App. 181, 537 S.E.2d 429, (Ga.App. 2000)...............................................27 Radowick v. State , 145 Ga. App. 231, 233 (1) (244 S.E.2d 346) (1978).....................................22, 27 Rogers v. State, 253 Ga. App. 863, 865 (1) (560 SE2d 742) (2002)..................................................24 Slocum v. State, 267 Ga.App. 337, 599 S.E.2d 299 (Ga.App. 2004)...........................................17, 18 State v. Dukes, 630 S.E.2d 847, 279 Ga.App. 247 (Ga.App. 2006).............................................18, 19 State v. Fowler, 215 Ga. App. 524, 525 (451 S.E.2d 124) (1994)......................................................21 Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994)...................................................15, 18 Web v. American Express Travel Related, 399 S.E.2d 513, 197 Ga. App. 697.)...............................23
FEDERAL CASES
Alabama v. White, 496 U. S. 325).........................................................................................16, 17, 18 Florida v. J. L.., 529 U. S. 266, 269-271 (120 SC 1375, 146 LE2d 254) (2000).........................passim Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. (1968)...........................................................20 United States v. Winningham, 140 F.3d 1328 (10th Cir. 04/06/1998)...............................................25
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IN THE COURT OF APPEALS STATE OF GEORGIA

MICHAEL GRANDBERRY
Appellant
VS. Case No: A07A2366 STATE OF GEORGIA

Appellee
BRIEF OF APPELLANT
PART I
STATEMENT
OF
PROCEEDING BELOW
On Thursday, May 18, 2006, Appellant was charged in a single count indictment with possession of cocaine with intent to distribute. Said charge resulting from a warrantless search of his vehicle which was based on an anonymous, and totally unsubstantiated, tip in Grady County On November 2, 2006 a hearing was held in the Superior Court of Grady County, State of Georgia, on Defendants Motion to Suppress. In an order dated November 29, 2006, in denying the Defendants Motion to suppress, the Court made the following Findings of Law:
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a. The Court finds that the stop of the vehicle was justified due to the allegation of an armed robbery concerning the vehicle, which was corroborated by the callers correct statement of the vehicles whereabouts and which direction it would be going.
b. Once the stop was conducted, the detention of the

Defendant and his vehicle was not unreasonable, as the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.
c. The use of the drug dog was legal in that a free air
sniff does not constitute a search.
d. Once the drug dog alerted on a specific area of the

car, it gave the officers probable cause to conduct a warrantless search of the vehicle.
Appellant is appealing from the denial of his motion to suppress wherein he challenged the sufficiency of the probable cause supporting the warrantless search. SUMMARY
OF
FACTS
On May 18, 2006, An unknown person approached a person identified as Ahmed Davis, at a home on Moore Road. Mr., Davis claimed the person unknown to him
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stated he had been robbed, and asked to borrow his cell phone. Mr. Davis claimed to not know the person requesting the phone, and stated he had never seen him before or since. This was the cell phone which Caller ID confirmed was used to make both 911 telephone calls. (Suppression Transcript, Page 43 Line 9.) 1 At approximately 11:14 a 911 call was received through Thomasville stating that an attempted armed robbery was occurring at Johnsons Meat Market. No information was given by the caller as to his identity. 2(Trial transcript Page 23 line 1; Tape of first 911 call.) The caller was supposed to have met the deputies at Johnsons Meat Market but he failed to show up. (Trial transcript Page 23 line 7.) Some time later a second call was received by 911. The second call gave a description of the vehicle alleged to have been involved and that the driver was Michael Grandberry, the appellant, and alleged that Mr. Grandberry had attempted an armed robbery, the description of his vehicle, the fact the vehicle had New York tags, and the fact that he was presently traveling in the direction of Thomasville. From the location of Johnsons Meat Market there is only one road to Thomasville (or indeed, to anywhere) and that is Rt. #84. Again, the caller did not identify
No explanation was given as to why the caller made two calls, one stating only that there had been a robbery at Johnsons Meat Market, the second giving additional details. Since the caller had to leave Johnsons Meat Market to borrow a cell phone and Moore Road is some distance away, it is unlikely that the caller learned the additional details in the time between the calls. 2 At several points in the transcripts, various witnesses identify the caller as Rasheed or Rashaid Johnson. Rasheed Johnson is the owner of Johnsons Meat Market and, while not included in the testimony, claimed to know nothing about the incident. There is no explanation for this discrepancy unless there is a 3rd 911 call unknown to the defense or 911 had Mr. Johnsons name on record for cases of emergency and assumed he was the caller.
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himself. 3 (Trial transcript Page 23 line 8; CD of 2nd 911 call; Suppression Transcript Page 36 Line 8, Thomas County Dispatch, CAD Incident Detail.) Although both telephone calls from the unknown tipster claimed that an armed robbery had taken place and the second call alleged that a shotgun had been used, neither call mentioned anything about drugs.4 (Tape of 1st 911 call; CD of 2nd 911 call.) At 5/18/2006 at 11:21:15 PM Grady County officers spoke to the owner of the cell phone who stated that he had gotten his phone back, and the unknown caller was last seen at Pine Terrace Trailer Park, walking down the road wearing all black. (Incident Report, Grady County, Incident # 2006-0026037.) Based upon the anonymous telephone calls, a BOLO was broadcast at 10:57 p.m. from Thomas County 911 dispatch to law enforcement on the evening of May 18, 2006 relating information about an alleged robbery, perpetrated by a black male, with a shotgun, who had been driving a black Neon, with New York plates, and that had occurred at the Johnsons Meat Market in Grady County. Transcript pg. 7) Approximately 18-19 minutes later, Officer Chris Brock, a Thomasville City Police officer, responded to the call after seeing a vehicle, which he felt fit the description of the car in the robbery, approaching Thomasville from Grady County
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(Suppression
In the Thomas County Dispatch, CAD Incident Detail the suspect was incorrectly identified as Michael Cranberry. Two officers testified that the BOLO included 1073, which is narcotics. This is in fact true, as evidenced by the logs of the BOLO. Defendant, however, cannot find any reference to drugs in the two calls he has. Either there is a third tape unknown to Defendant or the 911 operator made an error.
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at the intersection of Hwy 84 and the 319 By-Pass. The vehicle turned north, then west again and was proceeding toward Grady County when the officer, with backup, stopped the vehicle just inside Grady County at 11: 21 p.m. (Suppression Transcript pg. 10, line 24; Trial Transcript pg. 16, line 24.) Officers approached his vehicle with weapons drawn and ordered the driver, Michael Grandberry, to roll down his widows and put his hands and arms outside the window. Grandberry was then instructed to use one hand and roll down the window and open the car door from the outside. He complied and got out of the vehicle. He was then ordered to pull his shirt up and turn around. He complied. He was then ordered to get on the ground and extend his arms out in front of him with his palms up. He complied. He was then handcuffed. Grandberry was then told he had been involved in a robbery and the officers wanted to find his shotgun. (Suppression Transcript pg 20, lines 2-20). On 5/18/2006 at 11:25:50 PM Thomas County advised Grady County that Michael Grandberry was in custody. (Incident Report, Grady County, Incident # 20060026037.) With Grandberry handcuffed and on the ground, officers conducted what they referred to as a Terry frisk of the vehicle. (Suppression Transcript pg. 21, line 12)
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All car doors, all hatches and all compartments were opened and inspected. Officers inspected/searched under the front seat of the vehicle. The trunk lid was opened and officers inspected the interior of the vehicle trunk. (Suppression Transcript pg 22 - 24.) No shotgun or other weapon or any evidence of a robbery was found. No contraband was found. (Suppression Transcript pg 25-26.) While the Thomasville police officers were detaining Grandberry and searching his vehicle, Grady County deputies were dispatched to Johnsons Meat Market to find and talk to the tipster and/or the alleged victim of the robbery. (Suppression Transcript pg 28 lines 23-25.) Neither the tipster nor the alleged victim showed up at the Meat Market when officers responded. (Suppression Transcript pg 36, lines 18-21.) 911 dispatch personnel called back to the cell phone which was used to call in the complaint and were initially told that the tipster was enroute to the store to talk to officer, but, again, he did not show. Grady County officers then proceeded to the site where Thomasville officers had the Grandberry vehicle stopped. Notwithstanding that there was no confirmation that a robbery had occurred or that any other reliable information was available to suggest that Grandberry had been involved in a robbery or any illegal activity, officers continued to hold Grandberry incarcerated and handcuffed.
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Upon the arrival of Grady County Investigator, Steve Clark, at 11:54 p.m., about 40-45 minutes after the initial stop and search, Grandberry was read his Miranda rights by Clark and asked to permit a search of the vehicle. Grandberry refused consent saying he knew nothing of a robbery and otherwise didnt know what was going on. Investigator Clark testified that approximately 10 minutes after he arrived on scene he asked the Thomasville Police K-9 Officer Brock, to use his drug dog to check the vehicle. (Suppression Transcript pg 39; Trial Transcript pg 47 lines 11-12). Almost immediately, the dog jumped into the front seat of the vehicle, jumped over the front seat, and into the back and started checking all down the seat, and was wanting to scratch at the back seat in an aggressive alert. This was the first aggressive alert made by the dog. (Suppression transcript, page 17 line 16.) After the dog searched the interior of the vehicle, he then searched around the outside of the vehicle and showed a second aggressive alert at the trunk area. (Suppression transcript, Page 18 line 4.) Based upon the officers observations that the drug dog, seemed to pause three different times in the area of the right side of the trunk compartment, and showed abnormal responses in the area of the trunk, Clark simply advised Grandberry that they were going to search the vehicle. (Trial Transcript pg 47, lines 10-14).
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Thus a second warrantless search of the Grandberry vehicle ensued at or about 12:10 a.m. and a quantity of drugs was found in the vehicle. (Suppression Transcript pg 38 line 16 thru pg 39, line 8). After having been handcuffed and detained for approximately 1 hour, Grandberry was arrested and charged with possession of cocaine with intent to distribute. No part of the BOLO information concerning a robbery had been confirmed in any respect by any witness or through any evidence whatsoever at the time of either search of the Grandberry vehicle.5 (Suppression Transcript pg 41, lines 14-20) Defendants detention and the immediate search of the vehicle by Thomasville officers and the final search by Investigator Clark was done absent any consent. (Suppression Transcript pg 41 line 10-12). During the time that Officer Brock was following the car and up to the point in time that the car was stopped Officer Brock did not observe any illegal activity or traffic violation by Mr. Grandberry. (Suppression Transcript, Page 30 line 10.) PRESERVATION
OF
ERRORS
All errors enumerated in the instant petition were preserved in the following manner: The court below made findings of law in response to a written motion to
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"The Court: Did you ever discover any facts or circumstances that would substantiate that there
was or was not a robbery or attempted robbery in the parking lot of Jones Meats? Or Johnson's Meat Market. The Witness: No, Sir." (Suppression Transcript pg. 42, lines 10-14)
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suppress, exhibits, testimony of witnesses, and Defendants arguments in opposition to the admissibility of the evidence and lawfulness of the search & seizure. Defendant is specifically appealing these findings of law of the court below.
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PART II
JURISDICTIONAL STATEMENT The Court of Appeals rather than the Supreme Court, has jurisdiction of this matter for the reason that it is not among those type cases enumerated in Article IV Section VII, Paragraph III of the Constitution of the State of Georgia in which exclusive appellate jurisdiction is conferred upon the Supreme Court of Georgia. ENUMERATION
OF
ERRORS
Division I - The original stop was illegal. The following finding of law by the court below is error as a matter of law
The Court finds that the stop of the vehicle was justified due to the allegation of an armed robbery concerning the vehicle, which was corroborated by the callers correct statement of the vehicles whereabouts and which direction it would be going.
The original stop was the result of an anonymous tip. Anonymous tips are generally less reliable than tips from known informants and can form the basis for reasonable suspicion only if accompanied by specific indicia of reliability. Here, not only was the tip not accompanied by specific indicia of reliability, it was in fact accompanied by specific indicia of unreliability.
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Division II - Defendant should have been released when tipster could not be located. The following finding of law by the court below is error as the Finding is not justified by the facts in the case.
Once the stop was conducted, the detention of the Defendant and his vehicle was not unreasonable, as the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.
Once the Grady officers found that they had no crime scene, no complaining witness, and no crime, and particularly, no person who could make an identification of the suspects of a non-existent crime, they should have called the Thomasville officers and ordered defendants immediate release without responding to the scene. Once Grady officers responded to the scene of the Terry frisk, They had no action they could take except to release the defendant. They had no one to make an identification, they had no complaint to question him about, they had no information whatsoever, and there was literally nothing more they could do except to either arrest the defendant or release him. Since he could not be arrested as there was no probable cause, he should have been immediately released Division III - The encounter with the drug detecting dog was far beyond the scope of a Terry frisk.
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The following finding of law by the court below is error as a matter of law
The use of the drug dog was legal in that a free air sniff does not constitute a search. While it is true that a free air sniff limited to the exterior of the vehicle does not constitute a search, this does not apply to a free air sniff which includes the interior of the vehicle, as was the uncontroverted fact, as testified to by the States own witness.
This finding is an error of law in that a free air sniff of the exterior does not constitute a search but in the case sub judice the dog entered the interior of the car, jumped over the front seat, and alerted on the back seat near the trunk. The Finding that the free air search of the exterior and interior of the car was legal under the undisputed facts of this case is error as a matter of law Division IV - The second Search was an Illegal Search and Its Fruits Must Be Suppressed. The following finding of law by the court below is error:
Once the drug dog alerted on a specific area of the car, it gave the officers probable cause to conduct a warrantless search of the vehicle.
The finding is correct as a general matter of law but immaterial to this action as under the facts of this action the fruits of the warrantless search, even if based on probable cause, are the fruits of the poisoned tree. The free air sniff could not have provided probable cause for a search because it included the interior of the vehicle. Furthermore, if the search occurred at a time
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when a Fourth Amendment violation was in progress, they should be suppressed as the fruits of the poisoned tree.
PART III
STANDARD
OF
REVIEW
From Court of Appeals of the State of Georgia, Standards of Review:

Motion to suppress. When the facts are disputed, the trial court's ruling will be reviewed to determine whether the ruling was "clearly erroneous." However, when the evidence is uncontroverted and no question of credibility is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).
In the instant action, the evidence is uncontroverted and no question of credibility is presented. The defendant called no witnesses. All facts referenced herein were testified to by prosecution witnesses and the defendant accepts them without objection. It would appear that the proper standard of review would be de novo appellate review. "In reviewing the denial of a motion to suppress, this Court may consider both the transcript of the motion hearing and the trial transcript." Barnes v. State, 228 Ga. App. 44, 44 (491 SE2d 116) (1997); accord Goddard v. State, 244 Ga. App. 730, 731 (1) (536 SE2d 160) (2000). ARGUMENT & CITATION
OF
AUTHORITIES
Division I - The Original Stop Was Illegal

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In his order denying Defendants Motion to suppress, the trial court makes the following finding, as a conclusion of law:
The Court finds that the stop of the vehicle was justified due to the allegation of an armed robbery concerning the vehicle, which was corroborated by the callers correct statement of the vehicles whereabouts and which direction it would be going.
Unfortunately this is an incorrect statement of the law. The callers correct statement of the vehicles description and which direction it would be going, without more, has been specifically rejected as sufficient indices of reliability by both the Supreme Court of the United States and appellate courts of our State. From Florida v. J. L.., 529 U. S. 266, 269-271 (120 SC 1375, 146 LE2d 254) (2000):
In White, [Alabama v. White, 496 U. S. 325)] the police received an anonymous tip asserting that a woman was carrying cocaine and predicting that she would leave an apartment building at a specified time, get into a car matching a particular description, and drive to a named motel. Standing alone, the tip would not have justified a Terry stop. [emp. Sup.] Only after police observation showed that the informant had accurately predicted the woman's movements, we explained, did it become reasonable to think the tipster had inside knowledge about the suspect and therefore to credit his assertion about the cocaine. Although the Court held that the suspicion in White became reasonable after police surveillance, [emp. Sup.] we regarded the case as borderline. Knowledge about a person's future movements indicates some familiarity with that person's affairs, but having such knowledge does not necessarily imply that the informant knows, in particular, whether that person is carrying hidden contraband. We accordingly classified White as a close case." 17
There are two distinctions between the trial courts conclusion of law and the mandate of Florida v. J. L., (Supra). The first is that in the close case of White (supra) very exhaustive details of the suspects future itinerary were given: the vehicle description, what time she would leave, her route, the particular motel to which she was traveling. It is true that in the instant action the anonymous tip gave the vehicle description and that the vehicle was currently traveling with other traffic on a major thoroughfare, which in fact was the only major thoroughfare, in the general area, but that is all. The second distinction is more severe; Florida v. J. L. (Supra) states Standing alone, the tip would not have justified a Terry stop suspicion in White became reasonable after police surveillance. In the instant action the tip stands alone. There was no police surveillance to verify the predicted behavior of the subject actually took place; indeed, the tip contained no predictive behavior at all. The tip was that the vehicle was currently traveling with other traffic on the only major thoroughfare in the general area. From Slocum v. State, 267 Ga.App. 337, 599 S.E.2d 299 (Ga.App. 2004):
The record shows that a female called 911 at night from a payphone near an intersection on a major thoroughfare in Hall County reporting that she had been assaulted by a white male Where police acquire information from an anonymous informant or one of unknown reliability, this is ordinarily not a sufficient basis to provide reasonable suspicion, unless the information exhibits sufficient indicia of reliability. Alabama v. White; Florida v. J. L.,. For example, information provided by these types of 18
informants may exhibit sufficient indicia of reliability if it provides details correctly predicting a subject's "not easily predicted" future behavior, or if it provides other details which police corroborate as showing similar inside information about the subject's affairs In the present case, the information given to the police by the 911 caller was insufficient, without more, to provide the police with reasonable suspicion to stop the SUV The information on which the officers acted to stop the SUV provided them with no more than a general suspicion or hunch that the occupants of a dark colored SUV traveling with other traffic on a major thoroughfare in the general area might be involved in the reported assault. Vansant, 264 Ga. at 321. Because the officers stopped the SUV without the reasonable suspicion necessary to justify an investigative stop, the stop was an unreasonable intrusion under the Fourth Amendment, and the trial court erred by denying Slocum's motion to suppress.
That a car would be leaving in 15 minutes to travel with other traffic on the only major thoroughfare in the general area, while weak, might be regarded as predictive behavior and evidence that the informant had a personal relationship with the subject. That the vehicle is now traveling with other traffic on the only major thoroughfare in the general area is merely a news report, and one needs no personal relationship with the suspect to report the news. In the instant action, the evidence relied on by the lower court in his conclusion of law to deny Grandberrys Motion to Suppress is exactly the evidence that the court in Slocum used to reverse the denial of a Motion to Suppress interestingly, relying on Alabama v. White and Florida v. J. L.
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The case of State v. Dukes, 630 S.E.2d 847, 279 Ga.App. 247 (Ga.App. 2006) is interesting because it originated in Whigham, Georgia, some ten miles from where Grandberry was arrested. While it involved neither a vehicle nor a robbery, it did involve a tipster, and this time the lower court got it right In sustaining the lower courts granting of a Motion to Suppress, the Court in State v. Dukes (supra) said:
Given the complete absence of evidence about the source of the report, we have no way of knowing whether it came from a concerned citizen, a confidential informant, or an anonymous tipster. The most that we can say is that the tip came from an informant of unknown reliability. Although a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity, if the tip is detailed enough to provide some basis for predicting the future behavior of the suspect, reliability may be established if the details are corroborated by the observations of the police" In the instant case, the tip was not detailed and made no prediction about Dukes' future behavior Given the tip's lack of detail and failure to predict future behavior, the officer's observation of Dukes' conduct may have warranted further investigation, but it did not rise to the level of reasonable suspicion needed to justify a second-tier detention of Dukes. Had the tip included some predictive details, which it did not, and had the police conducted a surveillance to verify these predictions, which they did not, and had the predictions been verified, the statements of the anonymous, presumed unreliable, tipster may have risen to the level of "specific, articulable facts that could constitute a particularized and objective basis for suspecting that Grandberry was involved in any criminal activity." Since none of these things happened, the lower courts finding of law is simply wrong as a matter of law. 20
At the November 29, 2006 hearing on Grandberrys Motion to Suppress the State cited, and in its order the lower court also cited, Garlington v. State, 268 Ga.App. 264, 601 S.E.2d 793 (Ga.App. 2004). In that case the tipster was in fact the victim, who personally talked to police on several occasions, and who testified at trial. This case is indeed remarkably factually dissimilar to the instant action there was no anonymous tipster, the time waiting for the lead officer was 15 to 20 minutes, not almost one hour, there was both a victim and a crime, the tipster, who was the victim, spoke personally to the police prior to the stop, and the police did not convert a robbery investigation into a narcotics case when the robbery turned out to be a fiction. The only point in Garlington that needs to be addressed is whether there might be some sort of cleansing from the fact that the stop was the result of a BOLO since the officers who made the stop didnt know the source of the information, can there be a sort of good faith exception to Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. (1968) or Florida v. J. L.? Such is not the case. From Archer v. State, 456 S.E.2d 754, 217 Ga. App. 257 (1995):
Officer Caillouet stopped Archer solely on the basis that he was arguably in the company of another person who fit the description provided in an unsupported anonymous tip. The anonymous tip provided no information at all concerning Archer and could not therefore be the basis of any search of him. The individual fitting the anonymous Tipster's description was released without charges. The fact that Officer Caillouet was responding to a police dispatch does not affect the insufficiency of the information received from the tipster or support the validity of 21
the subsequent drug search. That which is insufficient in its own right cannot be made sufficient by the fact that it is broadcast over a police network."
From State v. Fowler, 215 Ga. App. 524, 525 (451 S.E.2d 124) (1994):
In the instant circumstances, it is uncontroverted that the stops were effected upon Lieutenant Roland's and Trooper Rozelle's radioed reports indicating that a drug transfer had occurred. Roland testified that his conclusion that a drug deal had occurred and his subsequent radioing of this Conclusion were based simply on his suspicion, not on anything specific that he observed The trial court held that there was no appropriate factual basis for the officer's conclusion that a drug deal had occurred. That which is insufficient in its own right cannot be made sufficient by the fact that it is broadcast over a police network.
From Duke v. State, 257 Ga.App. 609, 571 S.E.2d 414 (Ga.App. 09/11/2002):
The state correctly points out that the deputy was entitled to rely on information received over the police radio. Thus, we do not suggest that the deputy acted unreasonably in stopping Dukes. However, this does not obviate the state's burden of coming forward with sufficient evidence that the collective knowledge of law enforcement officers gave rise to reasonable suspicion that would justify a Terry stop. The state was required to come forward at the suppression hearing with evidence that some other law enforcement officer or officers upon whom the deputy might reasonably have relied possessed articulable and specific facts to justify the stop of the Mazda. In other words, to survive a Fourth Amendment challenge, the state had to present some evidence of the factual basis for the 911 dispatch. Since the deputy was unable to provide such evidence, it was incumbent upon the state to produce it from some other credible source. This was not done in the present case.
Defendants argument in this case is identical. Defendant does not argue that, in stopping him, the Thomasville officers acted in bad faith. Nor does Defendant
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argue that a road officer should question the source or the validity of information received by radio. Defendant argues that the police must insure that information not be transmitted which is unreliable and will result in an illegal stop. The road officer can and must depend on the investigatory officers and 911 personnel to insure that the information transmitted is such to form the basis for reasonable suspicion since it is accompanied by specific indicia of reliability. In this case, regardless of the good faith of the officer who made the stop, the State presented no evidence at the suppression hearing that some other law enforcement officer or officers upon whom the deputy might reasonably have relied possessed articulable and specific facts to justify the stop Division II - Defendant Should Have Been Released When the Tipster Could Not Be Located From Radowick v. State , 145 Ga. App. 231, 233 (1) (244 S.E.2d 346) (1978) at 237:
Terry recognized it could be the essence of good law enforcement practice to adopt an intermediate response by a brief stop of the suspicious person "to maintain the status quo momentarily, while obtaining more information" to confirm or dispel the information received A composite picture emerges of the "Terry-type" stop. It is a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification, licensing of a driver and a vehicle if appropriate, a protective "pat-down" of the outer surface of clothing for weapons if the officer has reasonable apprehension that the person is armed or dangerous, and
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limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop Along the same vein, both our appellate courts have held that police may not delay the arrest of a suspect or use a "Terry-type" stop rationale as a subterfuge to coerce a suspect into consenting to a search. Thus, it is evident that after the "brief stop" authorized by Terry, absent additional corroborative evidence of the criminality asserted in the original information, the authorized "momentary detention" is transformed into "unauthorized detention" by reason of the "intolerable intensity" of the investigative seizure, and an illegal arrest comes into being. This mutation point can be determined only by the totality of the surrounding circumstances in each individual case.
Radowick clearly expresses Defendants point: If the original stop was authorized, which defendant denies, then a mutation point was reached when neither the tipster nor the alleged victim could be located. Past that point, the Terry stop detention of Grandberry, if it existed, was converted into an illegal arrest. A Terry stop is not just another name for an arrest pending trial. It is a limited action to maintain the status quo momentarily, while obtaining more information" to confirm or dispel the information received. Defendants point is, without a tipster or victim, the information cannot be confirmed. In this situation, there is no place for a Terry stop. The information must be deemed to be dispelled, and the subject released Division III - The Encounter With The Drug Detecting Dog Was Far Beyond The Scope Of A Terry Frisk.
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In the lower courts conclusion of law #3, the court uses the term free air sniff. This is not a term of art, so the words must be given their common meaning. (Web v. American Express Travel Related, 399 S.E.2d 513, 197 Ga. App. 697.) Defendant sees no real difference between a free air sniff and any other kind of sniff. Defendant notes that the majority of reference this term qualify it by using exterior free air sniff or interior free air sniff. See, e.g., Davidson v. State, 257 Ga.App. 260, 570 S.E.2d 698 (Ga.App. 2002) The drug dog's exterior free air sniff . . . did not intrude into the interior of the car A careful reading of the Trial Courts order of November 29, 2006, denying Defendants Motion to Suppress shows that the lower court made no finding of fact that the dog never intruded into the interior of the car; to so find the court would have been required to ignore or disbelieve a significant portion of the testimony of State witness Officer Christopher Brock. From Suppression Transcript Page 17, line 11:
When he got back around to the door, he jumped into the door on his own inside the vehicle. That is considered another abnormal response. We dont train our dogs to jump in a vehicle, but if they smell odor, they will go to the odor. When he jumped in the vehicle, he immediately went over the seat and into the back and started checking all down into the seat, the backseat, and wanting to scratch at the backseat in an aggressive alert. I pulled him out of the vehicle
It is settled law that a dog may check for odors outside a vehicle, but may not enter into a vehicle to check the interior of a vehicle without probable cause; see, e.g., Davidson v. State, 257 Ga.App. 260, 570 S.E.2d 698 (Ga.App. 2002) (the dog's
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exterior free air sniff did not intrude into the interior of the car); Rogers v. State, 253 Ga. App. 863, 865 (1) (560 SE2d 742) (2002) ("The driver of an automobile has no reasonable expectation of privacy in the airspace surrounding his car. . . . [T]he drug dog's sniffing of the exterior of the vehicle did not constitute a search within the meaning of the Fourth Amendment...") In the case sub judice the dog intruded into the interior of the car and made its first active alert there. The second active alert on the exterior of the car was indelibly tainted by the Fourth Amendment violation when the dog protruded into the car. It is rare that one finds a case with absolutely identical facts but the case of United States v. Winningham has facts indistinguishable from the instant action. From United States v. Winningham, 140 F.3d 1328 (10th Cir. 04/06/1998)
Agent Palacios started the dog at the front passenger side of the van. Palacios testified he observed a "just noticeable difference" in the dog's conduct as he and the dog reached the rear of the van. Palacios unleashed the dog. The dog continued to sniff, moving around the right side of the van. When the dog reached the open door, he jumped into the van and methodically sniffed the van's interior. Eventually the dog alerted at a rear vent. Inside the vent, the agents discovered 50 kilograms of marijuana I'm going to find that there was no voluntary consent for the dog to enter the cabin of the van and suppress the evidence If the dog's leap into the car violated the Fourth Amendment, police were not entitled to draw probable cause from the dog's alert, and the resulting search was illegal
26
In Mr. Winningham's case, the officers themselves opened the door, allowing the van to sit on the side of the highway with the sliding door wide open for a period of at least six minutes until the drug dog could arrive. The dog handler then unleashed the dog as the dog neared the open door. fn2 fn2 Here, it was Agent Almengor who opened the door to the van, thus creating the opportunity. This fact is in the testimony and clear from the record. Citing it does not depend upon an assessment of the credibility of the witness.
The facts of the two actions are identical. In both, the vehicle was stopped and the vehicle searched. In both, nothing was found. In both, it was the officers who opened the doors and left them open until the dog approached the vehicle. In both, the dog showed some sort of reaction at the trunk which was short of an active alert. In both, the dog jumped into the vehicle on his own, without orders from the handler. In both, the dog jumped over the front seat into the back, and gave its first active alert. In both, the dog was removed to complete its exterior free air sniff. In both, the officers searched the vehicle and found contraband. The only difference at all between the actions is that in Winningham the evidence was suppressed and in the instant action it was not. It is true that actually obtaining the drug dog, in the instant action, took very little time, compared to some cases. True, obtaining the dog meant only that the Grady officers make a request to the Thomasville officers to borrow their dog. But the United States Supreme court, in Terry, mandated that the court must look at the totality of the circumstances. Totality cuts both ways. Totality in the case sub judice demands that this court consider that Grandberry had been proned out in handcuffs for almost an hour for a crime that not only he did not commit, that
27
nobody had committed, with no tipster, no victim, no crime scene, and, to this day, no arrest of Grandberry or anyone else. Under these circumstances even the minimal wait to discuss the situation with the Thomasville officers and walk to the car and get the dog, considering the totality of the circumstances, was too long. While the interdiction of the flow of drugs is an admirable goal, the State is not free to ignore constitutional safeguards in order to accomplish it, and neither is this Court. Montero v. State, 245 Ga.App. 181, 537 S.E.2d 429, (Ga.App. 2000) Division IV - The Second Search was an Illegal Search and Its Fruits Must Be Suppressed A dog has the right to approach the subject or his property, including the exterior of a vehicle. If it happens to indicate contraband, that supplies probable cause for search. But this pre-supposes that there are no pre-existing Fourth Amendment violations. Radowick makes it clear that the court cannot reach the question of probable cause until it first determines that, at the time of the search the person or property searched has been legally detained, or consent has been given; further, even if probable cause exists, an illegal arrest negates probable cause.From Radowick v. State, (supra) at 237
1. The first issue to be resolved is whether the police were authorized to stop the defendants' vehicle. The United States Supreme Court... specifically upheld an individual's freedom to use public highways in swiftly moving vehicles and to be unmolested by investigation and search in those movements. In such a case the 28
citizen who has given no good cause for believing he is engaged in that sort of activity is entitled to proceed on his way without interference 2. The second threshold reached is, if the stop was legal, was the subsequent search legal? The state contends the search was authorized on two grounds: (1) probable cause, and (2) consent 3. The third threshold to be crossed is the issue of whether the justifiable "Terrytype" stop in this instance was converted into an arrest by the subsequent actions of the police. The Constitution does not forbid all searches and seizures, only those that are unreasonable Terry held that "whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Although the original "seizure" in the instant case was "an intrusion short of arrest did the subsequent actions of the police overreach the minimal intrusion authorized and convert the legal stop into an illegal arrest?
The ruling of the lower court implies a further question: is there anything special about a drug detecting dog which isolates the probable cause from any illegal detention? Radowick points to an answer, since in that action, the fact that the officers smelled marijuana was a significant factor in establishing probable cause. From Radowick:
One detective stated that he smelled marijuana. The other detective "sniffed around the door" and agreed that it was marijuana. The rear door was secured by two screws and nailed shut. After it was pried open, 74 bales of marijuana were found inside If the exclusionary rule invoked here for suppression of evidence is to act as a deterrent to illegal law enforcement practices, it must be applied to the factual predicate of the instant case or the converse rule will emerge. That is, if illegal 29
detention for an extended period of time, without prior probable cause, is not sufficient to exclude evidence obtained thereby, then police officers have been judicially licensed to illegally detain suspects, without probable cause, for extended periods of time, until the will of the suspect succumbs to the coercive effect of illegal police action. This court can not countenance illegal acts even though they achieve desired civic solutions.
CONCLUSION It is Defendants position that there are six milestones in the timeline of events at which defendants detention was or became an arrest without probable cause, culminating in the second search during which narcotics were found which were the fruits of an illegal arrest. These are: 1. The original BOLO. (22:57:25). The stop was actually made at 23:19:57. The information received by 911 was not sufficiently specific to give Grady County the authority to put out the BOLO in the first place. Even if this were not so, Grady County had no identity on the tipster sufficient to validate the information. According to undisputed testimony by the officers and the State, the tipster has never been identified, the victim has never come forward, and no crime scene has been discovered. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity." Florida v. J. L.., 529 U. S. 266, 269-271 (120 SC 1375, 146 LE2d 254) (2000) 2. Approximately 15 minutes after the BOLO was released, Grady County went to the location given by the tipster as the site of the robbery and found
30
nothing. At this point the BOLO should have been cancelled as being issued on insufficient facts. (11:03:48) 3. A few minutes later, 911 called the number captured by caller ID and talked to the purported tipster, who agreed to meet the officers at the alleged crime site. (10:07:21). Although the Grady County officers waited almost an hour, the tipster never showed up. At this point, even if Grady County, in an excess of caution, was still regarding the anonymous tip as "specific, articulable facts that could constitute a particularized and objective basis for suspecting that Grandberry was involved in any criminal activity", they should have gotten the idea that the tip was either a hoax or, worse, an attempt to harass Grandberry, and cancelled the BOLO. Since by this time Grandberry had been detained, Grady County should have ordered his release. 4. Grandberrys car was searched without his consent, including the private areas and trunk, with the officers specifically looking for a shotgun or other evidence of a crime. They found nothing. This, together with the nonexistence of the tipster, a victim, or even a crime scene should have caused Thomas County officers to immediately release him. 5. About an hour after Grandberry was detained, Grady County officers arrived where Grandberry was detained (after waiting for the tipster for some time, who didnt show up). Other than asking Grandberry Did you just rob someone with a shotgun at the parking lot of Johnsons Meat Market in Grady County? they couldnt even phrase a second question. They simply had no information whatsoever about the alleged crime because they had no victim, no tipster, and not even a crime scene. They didnt even know that a robbery had
31
occurred. They certainly couldnt get an ID of the suspect. At this point there was nothing left to do except release Grandberry. What they in fact did is, without a shred of evidence or reason, they started a narcotics investigation. 6. About ten minutes after they arrived, Grady County officers asked Grandberry for his permission to search the vehicle. Grandberry refused. This should have ended the matter and Grandberry should have been released. After these six points in time, covering almost one hour, at each of which Grandberry should have been released, the Grady County officers did a free air search with a drug detecting dog, which searched the interior and exterior of the vehicle. When the dog appeared to hit on the back seat near the trunk, and later on the trunk outside the vehicle, the vehicle was searched without Grandberrys consent. A motion to suppress can be granted when a search is conducted in violation of the Fourth Amendment. Here there are multiple cumulative violations, any one of which should be grounds for suppressing the fruit of the poisoned tree. Accordingly Appellant MICHAEL GRANDBERRY respectfully requests that this Court reverse the judgment of the trial court in denying the motion to suppress and in finding Appellant guilty of possession with intent to distribute cocaine.
Respectfully submitted this ____ day of August 2007.
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____________________________ Melvin R. Horne Attorney For Appellant
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have this day served a true and correct copy of the within and foregoing Brief of Appellant and Enumeration of Errors upon __________________ District Attorney, South Judicial Circuit, P.O. Box 1870, Bainbridge, GA 31718, by placing a copy of the same in the U.S. Mail with sufficient postage affixed thereto to insure delivery thereof this ____ day of __________ 2007.
_____________________________ Melvin R. Horne
Prepared By:
MELVIN R. HORNE,
ATTORNEY AT
LAW
P.O. BOX 188 CAIRO, GA 39828 (229)377-0968 melhorne@hotmail.com SBN 367465
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Grandberry Mem Final

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IN THE COURT OF APPEALS STATE OF GEORGIA

Case No: A07A2366 STATE OF GEORGIA

PART II...........................................................................13 PART III..........................................................................16 CERTIFICATE OF SERVICE.........................................................34

IN THE COURT OF APPEALS STATE OF GEORGIA

VS. Case No: A07A2366 STATE OF GEORGIA

b. Once the stop was conducted, the detention of the

d. Once the drug dog alerted on a specific area of the

From Court of Appeals of the State of Georgia, Standards of Review:

Division I - The Original Stop Was Illegal

Respectfully submitted this ____ day of August 2007.

____________________________ Melvin R. Horne Attorney For Appellant

_____________________________ Melvin R. Horne

P.O. BOX 188 CAIRO, GA 39828 (229)377-0968 melhorne@hotmail.com SBN 367465

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