Acting on information that a certain male in a certain white Subaru would be in a Checkers parking lot in Jonesboro, Clayton County, Georgia, with a large quantity of drugs, Special Agent Daly and Deputy Sheriff Watkins, drove a marked patrol unit to that parking lot and observed a white vehicle matching the description back into a parking space close to the drive-thru area. Daly and Watkins approached the vehicle. Defendant immediately exited the vehicle in a very hurried manner. It appeared as though defendant was trying to separate himself from the vehicle. When questioned, defendant told the officers that he was waiting for a friend. Defendant was acting nervous and was fidgeting. Defendant consented to a search of his person, but was unresponsive when the officers requested to search his car. Daly asked again. Defendant asked "What would you do if I tell you, no?"

After defendant refused to clarify whether he would give the officers consent to search, Daly returned to his patrol unit and retrieved Wodan, a Belgian Malinois trained to detect narcotics scent. Wodan detected the presence of narcotics in the defendant's vehicle. Agent Daly again asked defendant whether he would consent to a search. Defendant as this point said "no." Agent Daly informed defendant that based on everything that he observed, the conversation, unusual behavior, and suspicious manner, as well as the dogs aggressive indication of the presence of narcotics that he was going to search the car without his consent. The subsequent search revealed 220 grams of heroin.

Should the evidence be suppressed? Did the officers have probable cause before or after the dog search (if it is considered a search at all)? Even if the defendant had given consent after the dog search, would it have been valid?

Andrew Block

Emory Law

Answer
ADEFENWA v. STATE

221 Ga.App. 429, 471 S.E.2d 900(1996)