Petition — McShan v. Georgia

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— ROOAK, JR., CHERR

SUPREME COURT OF THE UNITED STATES

ANDRE L. McSHAN )

| Petitioner, )

|

|, VS. ) Case No. 29 - §5 } ial “

| GeEoRGIA ;

\ ’

| Respondent. )

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT FROM THE SUPREME COURT OF GEORGIA

AND THE COURT OF APPEALS OF GEORGIA

MURRAY M. SILVER, P.C.

Attorney for Petitioner

100 Colony Square

Suite 1700

1175 Peachtree St., N.E.

Atlanta, GA 30361

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SUPREME COURT OF THE UNITED STATES

ANDRE L. McCSHAN, )

Petitioner, )

vs. ) Case No.

GEORGIA

r)

Respondent. )

AFFIDAVIT IN SUPPORT OF MOTION FOR LEAVE TO

APPEAL AS A POOR PERSON

ANDRE L. McSHAN, being duly sworn, deposes and says:

l. This affidavit is made pursuant to 28 U.S.C., Section 1915,

in support of my motion to appeal in forma pauperis.

2. I am the petitioner in this action.

3. I wish to appeal from the judgment of the Supreme Court of

Georgia, case # 352702, and the Court of Appeals of Georgia, Case

# 57285, entered on September 4, 1979.

4. That the Court erred in over-ruling the Motion to Suppress in

said case because of and illegal search of the person of the pet-

itioner.

I am unable to pay the court fees and costs necessary to prosecute

my appeal, and I am also unable to give security for their pay-

ment.

I am unemployed and without any funds to pay the costs involved

herein, I have no property and have no one from whom I can borrow

the money to pay the cost.

5. I therefore request leave to prosecute the proposed appeal in

forma pauperis.

1979.

DATED: October 12,

Sworn to and subscribed

before me this 12th day of

October, 1979.

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SUPREME COURT OF THE UNITED STATES

| ANDRE L. McSHAN, )

Petitioner, )

vs. ) Case No.

GEORGIA

—-PHE—UNLTED-SPATES—OF-AMERICS , )

Respondent. )

MOTION FOR LEAVE TO APPEAL AS A POOR PERSON

Defendant, ANDRE L. McSHAN, moves, pursuant to 28 U.S.C.,

Section 1915, for an order granting leave to appeal in forma

pauperis from the judgment entered on September 4, 1979, without

prepayment of costs and fees, and without giving security therefor.

The attached affidavit is filed in support of this motion.

1979.

DATED: October 12,

Respectfully submitted,

Peachtree Street, N.E.

GA 30361

IN THE

| SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

SUPREME COURT OF THE UNITED STATES

ANDRE L. McCSHAN,

ANDRE L. McSHAN ) Petitioner,

| Petitioner, ) li versus

| GEQR GIA

vs. ) Case No.

Geoarcin ) Respondent.

Respondent. )

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT FROM THE SUPREME COURT OF GEORGIA

OURT OF APPEALS OF GEORGIA

1 a teat PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES SUPREME COURT

! FROM THE SUPREME COURT OF GEORGIA AND

MURRAY M. SILVER, P.C.

Attorney for Petitioner THE COURT OF APPEALS OF GEORGIA

100 Colony Square

Suite 1700

1175 Peachtree St., N.E.

Atlanta, GA 30361

MURRAY M. SILVER, P.C.

f | Attorney for Petitioner

100 Colony Square

Suite 1706

1175 Peachtree Street, N.E.

Atlanta, GA 30361

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No .

ANDRE L. MCSHAN Petitioner-Appellant

vs.

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eRe A nn0-0P-NENICA Respondent-Appellee

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES

FROM THE SUPREME COURT OF GEORGIA AND

THE COURT OF APPEALS OF GEORGIA

Petitioner ANDRE L. MCSHAN prays that a writ of certiorari issue

to review the final judgment of the Supreme Court of Georgia and

the Court of Appeals of Georgia entered in this case on September

4, 1979, affirmed by the Supreme Court of Georgia on September 4,

1979, wherein the Court denied the Writ of Certiorari in this

case. That prior thereto, the Court of Appeals of Georgia af-

firmed the Petitioner's conviction, (see opinion attached hereto

rendered by SHULMAN, Judge) as well as the order denying the Mo-

tion for Reconsideration and Rehearing, a copy of which is attach-

ed hereto.

JURISDICTION

The final judgment of the Supreme Court of Georgia was

entered on September 4, 1979. The jurisdiction of this Court

is invoked under Title 28, United States Code, Seciton 1254.

ie QUESTIONS PRESENTED

1. The Court of Appeals of Georgia fails to recognize that

both the initial detention and subsequent search are constitu-

tionally impermissable because probable cause was lacking.

2. The Court erroneously cited cases in support of its decision

which are inapposite to the case subjudice.

3. The Court of Appeals of Georgia overlooked material facts

in the record.

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4. The decision of the Court of Appeals of Georgia is error in

that the burden is upon the State to establish the case by a pre-

pondurance of the testimony beyond a reasonable doubt.

5. That the decision of the Court of Appeals of Georgia is

directly contrary to a recent decision on the same question ren-

dered by the Supreme Court of the United States.

6. That the decision of the Court of Appeals is contrary to the

law and precedent in such cases and the effect of the Court's

decision materially affects the public welfare in that it creates

a police state and subjects the citezenry to complete and unbrid-

led movement of interstate transportation.

7. Substantial justice demands that this Court as a Court of last

resort consider and review the decision of the Court of Appeals

of Georgia in this case.

STATEMENT OF THE CASE

This criminal action was brought pursuant to a one count

indictment charging the Appellant-Defendant, Andre L. McShan with

the offense of violation Georgia Controlled Substances Act for

that said accused, in the County of Fulton and State of Georgia

on the 13th day of March, 1978 not being authorized under any pro-

vision of the Georgia Controlled Substances Act to do so, did un-

lawfully possess and have under his control cocaine, said cocaine

being a controlled substance in Schedule II of said Act; MCSHAN

pled not guilty to said indictment at arraignment on May 5, 1978.

He filed a Motion to Suppress the Evidence and the Motion was over-

ruled. He appealed to the Court of Appeals of Georgia and his

appeal was denied. Subsequently thereto, his Motion for Rehearing

in the Court of Appeals of Georgia was denied, and finally his

Writ of Certiorari to the Supreme Court of Georgia was denied.

STATEMENT OF THE FACTS

During a Motion to Suppress hearing before the Honorable

Judge Luther Alverson, Judge of Superior Court, Fulton County

Georgia. The agent and arresting officer testified extensively

concerning his background and experience in "Drug courier Profiles,"

the knowledge of which he had acquired over a period of investi-

gating at airports in Atlanta, Georgia and in Detroit, Michigan.

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MURRAY M SILVER PC

After that lengthy testimony, the following testimony was outlined:

That the agent was on duty at the Atlanta airport at ap-

proximately 3:10 p.m. on March 13, 1978, he was alone and surveil-

ling passengers deplaning from a Delta Air Lines flight from

Miami, Florida. That he observed appellant McShan deplaning from

said flight in a state of “unusual nervousness” and decided to

follow him. He followed appellant to the baggage claim area

where the appellant claimed a suit-bag and proceeded to walk in

an unusually "rapid pace" toward the escalator. As the appellant

reached the excalutor the agent approached him, identified him-

self as a law enforcement officer and asked the appellant for his

identificatior.. The appellant produced his Alabama driver's

license whicn was issued in his own name, in a manner which the

agent described as "very cordial." The agent continued to ask

for the appellant's airline ticket which was issued to a Mr. Paul

Daniels and in explanation thereof the appellant said that "his

cousin had purchased the ticket for him." The agent then observed

the address label on the appellant's clothes bag which also bore

the name of Daniels and ti:2 appellant stated the bag was his. The

agent then asked appellant whether or not he was "carrying any

drugs or narcotics" and the appellant replied that he was not.

Subsequently, the agent asked appellant if he “would mind allow-

ing us to briefly conduct a search of his person and his property"

and the appellant reluctantly agreed to accompany the agent to the

airport precinct office. During a search of the appellant's suit-

bag the agent discovered a small amount of cocaine and a small

amount of marijuana.

The appellant was sworn and testified as follows:

Upon exiting the aircraft, the appellant walked directly to

the baggage claim area, waited 10 or 15 minutes for his bag and

walked alone to the escalator. In his opinion he was not acting

in any nervous manner. When the agent approached him he revealed

that he was a federal official and that he “had been informed that

drugs were being transported through the Atlanta Airport." He

stated further that after the agent asked for his identification

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he questioned him as to whether he was in possession of narcotics

to which the appellant replied “why would you ask me that, and why

are you stopping me, and for what reason?" The agent's response

was that the appellant would have to go the the precinct and if

he had no drugs everything would be OK. The appellant also test- |

ified that he had no idea that he could refuse the search and keep

on walking, as it was his impression that he could not continue

and that he would have to go into the precinct with the agent.

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SUPREME COURT OF THE UNITED STATES

ANDRE McSHAN, )

Petitioner, )

vs. ) Case No.

THE UNITED STATES OF AMERICA,)

Respondent. )

BRIEF IN SUPPORT OF APPLICATION FOR CERTIORARI

PART ONE

ARGUMENT AND AUTHORITIES

It is urgent and imperative that this Court carefully review

the facts in this case. This case should not be placed in "a

category" because the facts here are unique and merit this

Court's closest scrutiny. It is equally important that this

Court understand the history of this type surveillance and the

characteristics or profile that has been adopted by these agents.

From page 3 of the transcript through and including page

24 of the transcript, Paul Markonni, an agent with the Drug En-

forcement Administration in Atlanta testified concerning Airport

surveillance, its origination, objectives and experiences. He

Outlined what he regarded as the same basic modus operandi or

seven characteristics of "drug couriers." (See transcript page

5, 6.)

"The seven (7) principal characteristics consist of 1) ar-

rival from or departure to an identified source city; 2) carrying

little or no luggage, or large quantities of empty suitcases; 3)

unusual itinerary, such as a rapid turnaround time for a very

lengthy airplane trip; 4) use of an alias; 5) carrying unusually

large amounts of currency in the many thousands of dollars, us-

ually on thier person, in briefcases or bags; 6) purchasing air-

line tickets with a large amount of small denomination currency;

and 7) unusual nervousness beyond that ordinarily exhibited by

passengers." (See transcript page 6-10.)

Much of what the agent testified about was his general

suspicion, sometimes confirmed other times not confirmed by ar-

rests. Almost all of his testimony dealt with his general impres-

sions - not specifically related to this appellant and not based

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upon objective criteria.

"There is no authority in Georgia under which a citizen may

be arrested without a warrant and held for investigation to deter-

t

mine if he has committed some crime merely because the person —

ing the arrest has a suspicion that the person arrested may have

109//354.

RAIF V. STATE,

committed some then unknown crime."

"The arrests were illegal and if the evidence obtained after

such illegal arrests from the defendants was not voluntarily given

then, under the Mapp case, supra, such evidence being the fruits

of an illegal search and seizure of the persons, was inadmissible,

The police officers, who obtained such evidence, testified they

merely asked the prisoners for the evidence and they gave it to

them. It is contended that such evidence was freely and volun-

tarily furnished by the defendants and under such circumstances

was admissible. In reply to this contention it is only necessary |

to refer to the language of Justice Lumpkin in Chattahoochee |

Brick Co. v. Braswell, 92 Ga. 631, 634 (18 SE 1015): "The plain-

tiff was a convict, and according to the evidence, his movements

were absolutely controlled and directed by a guard, or ‘boss,’

whose orders he was compelled to obey. This guard had and exer-

cised over him the most complete dominion and authority. The |

plaintiff's position, so far as the power of the guard was con-

cerned, was more that of a slave than a mere servant, and it is

apparent that he dared not disobey any of the guard's commands."

A prisoner in police custody by reason of an illegal arrest is in

no position to refuse to comply with the demands of the officer |

in whose custody he is placed whether such demand is couched in

the language of a polite request or a direct order. Ifa command ;

the prisoner is directly forced to comply, and if a request, he

is indirectly forced tc comply." See: Raif above. |

Of the 7 principal characteristics only number 1 and 4 apply

The agent also testified that over a period of 7 months 85

people were approached for identification, 72 were searched, of

which 48 consented, the remainder did not consent, however, he

searched them any how, and got search warrants in only 7 or 8

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not satisfy the requirement of probable cause." JONES VS. UNITED

See also SPINELLI VS. UNITED |,

"The unsupported assertion or belief of the officer does

STATES, 362 U.S. 257, 269 (1960).

STATES, 393 U.S. 410, 423 (1969).

!

The Fourth Amendment states: "The right of the people to be,

secure in their persons, houses, papers, and effects, against un~"

reasonable searches and seizures, shall not be violated, and no |

Warrants shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be search-

ed, and the persons or things to be seized."

These, I protest, are not ere second-class rights but be-

long in the catalog of indispensable freedoms. Among deprivations

of rights, none is so effective in cowing a population, crushing ,

the spirit of the individual and putting terror in every heart. |

Uncontrolled search and seizure is one of the first and most ef-

fective weapons in the arsenal of every arbitrary government. And

one need only briefly to have dwelt and worked among a people

possessed of many admirable qualities but deprived of these

rights to know that the human personality deteriorates and 7

and self-reliance disappear where homes, persons and possessions

t

are subject at any hour to unheralded search and seizure by the

police.

The decision of the Court of Appeals fails to recognize that

|

both the initial detention and subsequent search are constitu-

tionally impermissable because probable cause was lacking. |

"No right is hela more sacred, or is more carefully guarded,|

by the common law, than the right of every individual to the

possession and control of his own person, free from all restraint

or interference of others, unless by clear and unquestionable

Union Pac. R. Co. v. Botsford,

734 (1891).

authority of law."

251, 11 S.Ct. 35 L.Ed.

141 U.S. 250, |

1000, |

It must be recognized that whenever a police officer accosts

an individual and restrains his freedom to walk away he has

"seized that person. TERRY VS. OHIO, 392 U.S. 1, 16 (1968).

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In our view of the sounder course is to recognize that the

Fourth Amendment governs all intrusions by agents of the public

upon personal security, and to make the scope of the particular

intrusion, in light of all the exigencies of the case, a central

element in the analysis of reasonablness. Cf. Brinegar v. United

1302, 1314, 93 L.Ed. 1879

States, 338 U.S. 160, 183, 69 S.Ct.

(1949) (Mr. Justice Jackson dissenting). (See Terry pg 17).

The stop and inquiry must be reasonably related in scope to

the justification for their initiation." (See Terry pg 29). :

'

"The infringement on personal liberty of any ‘seizure’ of

a person can only be ‘reasonable’ under the Fourth Amendment if we

require the police to possess ‘probable cause’ before they seize

him. Only that line draws a meaningful distinction between an

officer's mere inkling and the presence of facts within the officer

personal knowledge which would convince a reasonable man that the

person seized has committed, is committing, or is about to commit

a particular crime." TERRY V. OHIO, supra, at 38, 20 1 Ed 2d

889, 88 S.Ct. 1868.

"'"Police power exercised without probable cause is arbitrary.~

Te say that the police may accost citizens at their whim and may |

detain them upon reasonable suspicion is to say, in reality, that

the police may both accost and detain citizens at their whim.'”

Amsterdam, Perspectives on the Fourt Amendment, 58 Minn L Rev

349, 395 (1974).

B. THE COURT ERRONEOUSLY CITED CASES IN SUPPORT OF ITS

DECISION WHICH ARE INAPPOSITE TO THE CASE SUB JU ‘ICE.

The Court of Appeals erroneously cited cases in support of

its decision such as State vs. Rei@ case #57465, decided April 4,

197° and reported in 149 Ga. Appeal 685.

A careful, comparative review of the facts reveal that Reid

is inapposite to the case sub judice.

Reid involved two men. The recoru does not reflect whether

the agent received any tip or information from an informant, and

Reid is highly suspect, using the agents “profile,” at least 5

of the characteristics are present. Reid began running and Reid

threw his purse away which police recovered after Reid was cap-

| tured. NONE of these elements are present in the case sub judice, A fundamental purpose of the Fourth Amendment is to safe-

The factors herein do not constitute an A4rticulable SUSpicion" | guard indivisuals from unreasonable government invasions of legi-

sufficient to justify a stop. Whereas in Reid the flight | timate privacy interests and this has been settled law in the

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would provide cause for the apprehension and ultimate search of U.S. Supreme Court for over 90 years. (See Boyd v. United States,

| the discarded purse. | | 116 U.S. 616, (1886).

Another case cited by the Court is United States v. Chadwick, i So appellant respectfully urges that Chadwick offers no

433 U.S. 1 (1977). _ support whatsoever to the decision of the Georgia Court of Appeals.

Here, again, comparative review of the facts reveal that | The Court of Appeals then concluded "Even assuming that

reliance upon Chadwick is misplaced.

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| appellant is correct in his contention that an illegal detention

Chadwick involves a TIP from railroad officials that two men or arrest had occurred, it does not follow that the evidence pro-

with a brown footlocker, heavy for its size, leaking talcum pow- ! duced from the search was necessarily subject to exclusion."

der, which is often used to mask the odor of marihuana, and | (See opinion case #57285, pg 2), and the Court cited Ivins vs.

matching a profile used to spot drug traffickers; whereas in ! State, 129 Ga. Appeals 865, 868.

McShan's case none of these elements are present. j Ivins presents no support for the Court's judgment.

In Chadwick the officers had a police dog trained to detect "Merely placing a possible criminal construciton on a thing

marihuana which signalled the presence of the controlled sub- or event which will support other construcitons is not a reliable.

stance. And in Chadwick the officers seized the foot locker, took tactic to justify personal searches." See Uva v. State, 124 Ga.

it to their headquarters and one and one half hours later opened App. 486. (Also see Ivins pg 867). }

it without a warrant. The record in Ivins will not support the position that Ivins

!

In Chadwick the U.S. District Court held that the footlocker voluntarily consented to the search. (See Ivins pg 867 (2)).

search was NOT justified either under the “automobile exception" Nor do we find that the record reflects Ivins "consent" to the |

Or as a search incident to a lawful arrest. The Court of Appeals search of his knapsack. The most it shows is that the officers

for the First Circuit affirmed the suppression of the marihuana said they "would have to look at everything in the bag" and

and concluded that a rule permitting a search of personalty on Ivins apparently acquiesced in that exercise of apparent authority.

probable cause alone had not yet “received sufficient recogni tion, We do not find that such acquiescence as Ivins showed equals con-

by the Supreme Court outside the automobile area, or generally, for sent. (See Ivins pg 867, 868). |

us to recognize it as a valid exception to the Fourth Amendment i Though custody does not necessarily preclude voluntariness, |

warrant requirement." 532 F 2d 773, 781 (1976). The Supreme see U.S. v. Fike, 449 F2d 191 (5th Cir.), on this record we are

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| Court granted certiorari and AFFIRMED: stating "There being no | | unable to find consent; the most we find is an apparent lack of

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exigency, it was unreasonable for the government to conduct this — protest, and this is not adequate, see Ray v. U.S., 84 F2d 654

(5th Cir.), to carry the state's burden which is particularly

| search without a warrant.

f The Fourth Amandment “protects people, not places" Katz v. , Strong in cases of illegal custody.

! United States, 389 U.S. 347, 351 (1967). The framers of the i What may be "consent" as to other individuals may not always

| Constitution were men who focused on the crongs of that day but | f be regarded as “consent” to the requests of an officer of the law

who intended the Fourth Amendment to safeguard fundamental kan | See Holtzendorf v. State, 125 Ga. App. 747, 751 (188 SE2d 879).

= Te which would far outlast the specific abuses which gave it birth. aoe eae | Accord, Ray v. U.S., supra.

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The Court of Appeals then cites Radowick vs. State 145//231 | direct order. If a command, the prisoner is directly forced to

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| in support of its judgment, and that too is misplaced. Radowick | | comply, and if a request, he is indirectly forced t© comply."

involves a truck and an informant's tip and a consent to search | || Under the facts of this case we cannot accept the state's conten-

form was secured, There is no comparision in the factual basis tion that the appellant's consent to the search was truly volun- |

in McShan and Radowick, even though in Radowick the conviction | tary and that the search was lawful. See Holtzendorf v. State,

supra.

3. In order for the search to have been valid the arrest must

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| was r-versed.

| "If the exclusionary rule invoked here for suppression of

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evidence is to act as a deterrent to illegal law enforcement have been legal. Johnson v. State, 111 Ga. App. 298 (2) (141

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| practices (Brown v. Illinois, 422 U.S. 590 (1) (95 SC 2254, 45 SE2d 574). It was not. What would have happened if the two

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t LE2d 416)), it must be applied to the factual predicate of the hitchhikers had refused to accompany the policemen to headquarter$?

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detention for an extended period of time, without prior probable to refuse to go with the policeman lacks reality. Similarly con +

cause, is not sufficient to exclude evidence obtained thereby, trary to reality is the contention that the consent to search was

v *untary because of the officer's subjective view that appellant

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instant case or the converse rule will emerge. That is, if illegal _ The assertion that they were rot physical detained and were free

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then police officers have been judicially licensed to illegally

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detain suspects, without probable cause, for extended periods ' was free to depart. The search cannot supply probable cause for

of time, until the will of the suspect succumbs to the coercive ! and thereby validate the subsequent "formal" arrest for burglary.

effect of illegal police action. This court cannot countenance ~ Where no reasonable cause for the defendant's arrest existed when

illegal acts even though they achieve desired civic solutions." the search was made and it was not made in connection with or

(See Radowick pg 242). incident to a lawful arrest without a warrant then the search was

The Court then cites Hall vs. State, 239 Ga. 832 (1). This unlawful. Brewer v. State, 129 Ga. App. 118 (1) (199 SE2d 109).

case is entirely and completely irrelevant to the McShan case. "ft is axiomatic that an incident search may not precede an arrest

Hall deals with consent being obtained from a third party who : and serve as part of its justification. E.g., Henry v. United

- possessed common authority over the premises or effects sought to States, 361 U.S. 98 (1959); Johnson v. United States, 333 U.S. 10,

be inspected. 16-17 (1948)." Sibron v. New York, 392 U.S. 40, 63, SUPRA.

McShan did not give a valid consent authorizing the search © The motion to suppress the evidence seized during the unlaw-|

and the motion to suppress was improperly denied. { ful search should have been granted, and it was error to admit it

| The Court also cites Hill vs. State, 140 Ga. App. 121, which | into evidence. "The obtaining of the evidence was tainted by the

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gives the Court little consolation. Hill contains an excellent } illegal arrest." Kelly v. State, 129 Ga. App. 131, 133 (3),

discussion on page 124. By now "Chief Justice Nichols: 2. Was | } supra.

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there a search of the appellant? If so, was it legal? The state The arrest of McShan was illegal. The motion to suppress

asserts that appellant gave Officer Mills permission to look the evidence seized during the unlawful search should have been

through his backpack. In Raif v. State, 109 Ga. App. 354, 358 i granted. i

| (136 SE2d 169), "A prisoner in Police custody by reason of an D. The decision of the Court of Appeals is error in that

illegal arrest is in no position to refuse to comply with the the burden is upon the State to establish the case by a prepon-

demands of the officer in whose custody he is placed whether derance of the testimony beyond a reasonable doubt.

such demand is couched in the language of a polite request or a

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McShan testified under oath and was not contradicted on

major points: His testimony established that he did not fit the

"profile" that the agent related.

He stated he was not nervous (transcript p 61) and that his

conduct and behawior at that time was "not out of the ordinary."

He did not pace up and down while waiting for his luggage, and

when approached by the agent he responded to the question of his

He also gave the agent his true

name, with his true name.

identity in the form of his driver's license. (Transcript p 62)

and that this was done after he picked up his baggage. He ques-

tioned the agent: "After telling me that he had been informed

that drugs were being brought through the Atlanta airport, he

asked if I had any drugs on me and I think I asked him, "Why woulé

you ask me that and why are you stopping me and for what reason,")

and I think his reply was something to the effect of what he had |

been informed of and that I would need to proceed to the precinct.

and if, you know, if there were no drugs in my possession, every-

thing would be okay, if you have drugs, it's a problem; if there

are no drugs there, you know, everything will be all right, but

you have to go to the precinct." (See transcript p 63) "I was

told that I would have to go into the precinct, and then I said,

"Why --" you know, "why is all this necessary," or, "why are you

stopping me," and then that is when I was told, you know, "You

will have to go into the precinct and if you don't have no drugs,

everything will be okay." (See transcript pp 63 and 64).

Constitutionally speaking the appellant met all ethical re-

quirements when he supplied his name and identification, although

there is some question whether the agent had any reason to stop

him whatsoever, and if he had some reason, it was disspelled when

he produced his identification and correct name. There was NO

reason for him to be stopped and detained. The rights of ap-

pellant as well as the rights of the numerous people that he

stopped (transcript p 52) have been trampled, some 85 persons

(his count) in seven:months in Atlanta he stopped and questioned,

aw ornces

MURRAY M SILVER PC

120 CRON BOvame

Ure See 08 ERCHrmEE STeEET © ©

ATL ANTS GEORGI 2038"

| tolerable limits.

| IS DIRECTLY CONTRARY TO A RECENT DECISION ON THE SAME QUESTION

| RENDERED BY THE SUPREME COURT OF THE UNITED STATES.

when frankly speaking, he had no legal right to do whatsoever. be

| harrassment, inconvenience and embarassment caused these persons

is apparently no concern to this agent--the citizens are at his

whim and caprice. The police power practiced here exceeds all

Its none of his business where the appellant

| flew, who he was with, or in whose name the iicket was purchased.

E. THAT THE DECISION OF THE COURT OF APPEALS OF GEORGIA

In a very recent decision--June 25, 1979--Brown vs. Texas

case number 77-6673, the U.S. Supreme Coure unanimously overturned

the conviction of a Texas man for violating a state law making it

a crime to refuse to identify oneself to a policeman. The opinio

by Chief Justice Burger, held that the statute was unconstitution

ally applied in this, case, because the police had no reason to

Suspect the man of any specific misconduct but simply thought he

ELSE eee TE

"looked suspicious."

"When such a stop is not based on objective criteria," ay

Chief Justice Burger wrote, “the risk of arbitrary and abusive !

police practices exceeds tolerable limits."

'

For these reasons the judgment of the Court of Appeals should

be reviewed and Judgment rendered by this Court reversing the

conviction in said case.

A pe

M. SI Re

torney for Appgljént

CERTIFICATE OF SERVICE

This is to certify that I have this day forwarded a copy

of the foregoing Application for Writ of Certiorari to the Supreme

Court of the United States for the writ of certiorari to Hon.

Isaac Jenrette, Asst. District Attorney, 150 Pryor St., Fulton

County Courthouse, Atlanta, Georgia 30303, by depositing in the

U.S. mail a properly addressed envelope with adequate postage CLERK'S OFFICE, SUPREME COURT OF GEORGIA

Atlanta ........5EP.0.4 1979

| thereon. i ;

| Pee ne Noa8 52. 20.. L01e dibtre 1 hae ale

This 15th day of October, 1979.

| es : ¢

| ** The Supreme Court today denied the writ of certiorari in this case. .

All the justices concur.

Bi Very truly yours,

MRS. JOLINE B. WILLIAMS, Clerk

wawornces

VRRAY M SILVER PC

(ee Kony sovame

we \Pen | 178 PEacHreRS GreneT © «

aTamtTs 6£0MG.4 2078)

Court of Appeals |

of the State of Georgia

ATLANTA, June 7, 1979

The Honorable Court of Appeals met pursuant to adjournment.

The following order was passed:

57285 Andre L. McShan v. The State

Upon consideration of the motion for a rehearing filed in this case, it is ordered

that it be hereby denied.

Court of Appeals of the State of Georgia -

CLERK'S OFFICE, ATLANTA JUN 7 1979

I certify that the above is a true extract from the minutes

of the Court of Appeals of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

CLERK.

re ee eee we -

57285. McSHAN v. THE STATE. Sh-37

SHULMAN, Judge.

This appeal follows the verdict of a trial judge,

sitting without a jury, finding defendant guilty of vio-

lating the Georgia Controlled Substances Act. We affirn.

1. At the hearing on the motion to suppress, an

experienced federal drug enforcement agent testified to

observing certain behavior on the accused's part which

confirmed the agent's suspicion that the accused might be

connected with criminal activity. Appellant was unusually

nervous upon deplaning from a flight arriving at Hartsfield

International Airport from Miami, Florida (a significant

narcotics distribution certer). Appellant surveyed the

people in the terminal waiting area, not as if looking

for any person in particular, but as if looking for possi-

ble undercover agents. While en route to the baggage claim

area, appellant looked over his shoulder several times as

if to determine whether he was being followed. At the

baggage claim area, the accused picked up a suit bag and

nothing else. As this observed behavior was consistent

with that of a narcotics courtier, the agent identified

himself to the accused and briefly detained the accused

for questioning. After the officer determined that the

accused was traveling under a name other than his own,

the officer requested permission to conduct a search of

appellant's person and property. The search produced the

contraband which formed the basis of this prosecution.

We need not consider appellant's contention that

both the initial detention and subsequent search were

constitutionally impermissible because probable cause

was lacking. See generally, in this regard, State v.

Reid, Case No. 57466, decided April 4, 1979, where flight

supplied probable cause to search after a valid initial

detention. Compare United States v. Chadwick, 433 U.S. 1

(1977), holding, in a nonconsensual search situation, that

a search warrant must be secured even when probable cause

existed to believe a footlocker contained narcotics.

Even assuming that appellant is correct in his

contention that an illegal detention or arrest had

occurred, it does not follow that the evidence produced

from the search was necessarily subject to exclusion.

Notwithstanding the legality of the initial detention or

arrest, a valid consent authorizing the search may be

found which renders the fruits of the search admissible.

See, e.g., Ivins v. State, 129 Ga. App. 865, 868 (201 SE2d

683). Radowick v. State, 145 Ga. App. 231 (4) (244 SE2d

346), Hall v. State, 239 Ga. 832 (1) (238 SE2d 912). As

the record in this case indicates without contradiction that

appellant intelligently and voluntarily consented to the

search of his possessions after being ful‘.y 4:formed that he

had a right to refuse the search, the trial court was auth-

orized to find that valid consent had been given. Brand

v. State, 129 Ga. App. 747 (201 SE2d 180). Compare Ivins,

supra, Division 2; and Hill v. State, 140 Ga. App 121 (2)

(230 SE2d 336). Because the evidence showed a valid con-

sent authorizing the search, the motion to suppress was

properly denied.

2. The accused waived jury trial and elected to

submit the case to a trial judge, sitting without a jury,

-2-

on the basis of stipulated evidence developed in the sup-

pression hearing. On appeal, it is urged that the court

improperly considered certain self-incriminating state-

| ments made by the accused at the hearing and that,

because of this, reversal is in orijer. We must take

issue with appellant's position.

The trial judge affirmatively stated that the

statements complained of would not be considered in de-

termining the accused's criminal culpability. See, in

this regard, Ward v. State, 26 Ga. App. 61 (195 SZ 373).

Cf. Benefield v. State, i140 Ga. App. 727 (12) (232 SE2d

89), where the trial court affirmatively stated certain

evidence would not be considered in passing sentence.

This being so, we find no error.

Judgment affirmed. Deen, C. J., and McMurray,

P. J., coneur.