Grandberry Mem Final

7/31/2019 Grandberry Mem Final

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I N T HE C OURT O F A PPEALS

S TATE OF GEORGIA

MICHAEL GRANDBERRY Appellant

VS.Case No: A07A2366

STATE OF GEORGIAAppellee

BB RIEFRIEF OO FF AAPPELLANTPPELLANT

Michael Grandberry#500458 Coastal State Prison

P.O. Box 7150Garden City Georgia 31418-7150

MELVIN R. H ORNEA TTORNEY FOR APPELLANT

P.O. B OX 188CAIRO, G EORGIA 39828

(229) 377-0968SBN 367465


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TABLE OF CONTENTSP ART I..............................................................................4

a. The Court finds that the stop of the vehicle was justified due to the allegation of anarmed robbery concerning the vehicle, which was corroborated by the callers correctstatement 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 notunreasonable, as the police diligently pursued a means of investigation that was likelyto confirm or dispel their suspicions quickly, during which time it was necessary todetain the defendant............................................................................................................5

c. The use of the drug dog was legal in that a free air sniff does not constitute a search...............................................................................................................................................5d. Once the drug dog alerted on a specific area of the car, it gave the officers probablecause to conduct a warrantless search of the vehicle.........................................................5

P ART II...........................................................................13

P ART III..........................................................................16

CERTIFICATE O F S ERVICE .........................................................34

P.O. B OX 188 C AIRO , G EORGIA 39828 M ELVIN R. H ORNE (229)377-0968

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TABLE OF AUTHORITIES

GEORGIA CASES

Archer v. State, 456 S.E.2d 754, 217 Ga. App. 257 (1995)................................................................20Barnes v. State, 228 Ga. App. 44, 44 (491 SE2d 116) (1997)............................................................15Davidson 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)...........................................21Garlington v. State, 268 Ga.App. 264, 601 S.E.2d 793 (Ga.App. 2004)............................................20Goddard v. State, 244 Ga. App. 730, 731 (1) (536 SE2d 160) (2000)................................................15Montero v. State, 245 Ga.App. 181, 537 S.E.2d 429, (Ga.App. 2000)...............................................27Radowick v. State , 145 Ga. App. 231, 233 (1) (244 S.E.2d 346) (1978).....................................22, 27Rogers v. State, 253 Ga. App. 863, 865 (1) (560 SE2d 742) (2002)..................................................24Slocum v. State, 267 Ga.App. 337, 599 S.E.2d 299 (Ga.App. 2004)...........................................17, 18State v. Dukes, 630 S.E.2d 847, 279 Ga.App. 247 (Ga.App. 2006).............................................18, 19State v. Fowler, 215 Ga. App. 524, 525 (451 S.E.2d 124) (1994)......................................................21Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994)...................................................15, 18Web v. American Express Travel Related, 399 S.E.2d 513, 197 Ga. App. 697.)...............................23

F EDERAL CASES

Alabama v. White, 496 U. S. 325).................................................................................... .....16, 17, 18Florida v. J. L.., 529 U. S. 266, 269-271 (120 SC 1375, 146 LE2d 254) (2000).........................passimTerry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. (1968)...........................................................20United States v. Winningham, 140 F.3d 1328 (10th Cir. 04/06/1998)...............................................25


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I N T HE C OURT O F A PPEALS

S TATE OF GEORGIA

MICHAEL GRANDBERRY Appellant

VS.Case No: A07A2366

STATE OF GEORGIAAppellee

BRIEF O F APPELLANT

P ART I

S TATEMENT OF P ROCEEDING B ELOW

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 theDefendant 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.

S UMMARY OF F ACTS

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 wasMichael 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

1 No explanation was given as to why the caller made two calls, one stating only that there had been a robbery atJohnsons Meat Market, the second giving additional details. Since the caller had to leave Johnsons Meat Marketto borrow a cell phone and Moore Road is some distance away, it is unlikely that the caller learned the additionaldetails in the time between the calls.2 At several points in the transcripts, various witnesses identify the caller as Rasheed or Rashaid Johnson. RasheedJohnson is the owner of Johnsons Meat Market and, while not included in the testimony, claimed to know nothingabout the incident. There is no explanation for this discrepancy unless there is a 3 rd 911 call unknown to the defenseor 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 2 nd 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 2 nd 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. (Suppression

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

3 In the Thomas County Dispatch, CAD Incident Detail the suspect was incorrectly identified as Michael Cranberry.4 Two officers testified that the BOLO included 1073, which is narcotics. This is in fact true, as evidenced by thelogs of the BOLO. Defendant, however, cannot find any reference to drugs in the two calls he has. Either there is athird 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 # 2006-

0026037.)

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).

P.O. B OX 188 C AIRO, G EORGIA 39828 M ELVIN R. H ORNE (229)377-0968

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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 anyrespect 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.)

P RESERVATION 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

5 "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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P ART II

JURISDICTIONAL S TATEMENT

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 factaccompanied 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.

P ART III

S TANDARD OF R EVIEW

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 weretestified 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 & C ITATION 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 correctstatement 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.] weregarded 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."


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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, inthe 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


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informants may exhibit sufficient indicia of reliability if it provides detailscorrectly 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 Slocumused 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.


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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 theinformation, 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


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the subsequent drug search. That which is insufficient in its own right cannot bemade 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 presentedno 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 theinitiation 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. Palaciostestified 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


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In Mr. Winningham's case, the officers themselves opened the door, allowing thevan 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 thevehicle 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


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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


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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 "Terry-

type" 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


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detention for an extended period of time, without prior probable cause, is notsufficient 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 atwhich 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 werenot 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


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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


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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. HorneAttorney For Appellant


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C ERTIFICATE O F S ERVICE

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. H ORNE , ATTORNEY AT LAW P.O. B OX 188 C AIRO , GA 39828(229)[email protected] 367465

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