Defendant appeals his conviction of possession of cocaine with intent to distribute and in three enumerations alleges error in the denial of his motion to suppress evidence of the search without warrant which resulted in the discovery of the cocaine. Held:
The agent searched in the bag and discovered what proved to be cocaine.
Defendant's testimony was in conflict with that of the agent in several respects, most particularly with defendant stating that he did not consent to be searched, only to go to the private office, and that he felt that he was not free to leave. Defendant admitted the agent did not display a weapon nor threaten him in any way.
The first question is whether the agent's approach and interview with defendant constituted a seizure of him and his bag. We find no illegal seizure that would taint the evidence ultimately seized.
"On the facts of this case, no 'seizure' of [defendant] occurred. The events took place in the public concourse. The agent() wore no uniform() and displayed no weapon(). [He] did not summon [defendant] to [his] presence, but instead approached [him] and identified [himself] as [a] federal agent(). [He] requested, but did not demand to see [defendant's] identification and ticket. Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest. [Defendant] was not seized simply by reason of the fact that the agent() approached [him], asked [him] if [he] would show [him] [his] ticket and identification, and posed to [him] a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official [Cits.]. In short, nothing in the record suggests that [defendant] had any objective reason to believe that [he] was not free to end the conversation in the concourse and proceed on [his] way, and for that reason we conclude that the agent['s] initial approach to [him] was not a seizure." United States v. Mendenhall, 446 U. S. 544, 555 (100 SC 1870, 64 LE2d 497). Accord, McShan v. State, 155 Ga. App. 518 (1) (271 SE2d 659)
; State v. Reid, 247 Ga. 445
, 449 (276 SE2d 617
); Berry v. State, 163 Ga. App. 705 (3) (294 SE2d 562)
; McAdoo v. State, 164 Ga. App. 23 (1) (295 SE2d 114)
; Brooker v. State, 164 Ga. App. 775 (1)
, 776 (298 SE2d 48
); Yocham v. State, 165 Ga. App. 650 (1) (302 SE2d 390)
. See, United States v. Berry, 670 F2d 583 (5th Cir., 1982). Compare, Florida v. Royer, ---- U. S. ---- (51 USLW 4293, decided March 23, 1983), where what began as a consensual inquiry in a public airport concourse, escalated into an investigatory procedure in a police interrogation room.
Remaining is the question of whether defendant voluntarily consented to the search. The agent testified that defendant gave verbal consent and then, without any direction, opened his bag right on the concourse for the agent's inspection. Defendant's testimony was that he did not give consent, but admitted that the agent did not coerce him in any way.
"[T]he trial court's decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. [Cits.]" Woodruff v. State, 233 Ga. 840
,844 (213 SE2d 689
); McShan v. State, 155 Ga. App. 518
, 519, supra.
There being competent evidence to support the ruling on the motion, the trial court's decision was not clearly erroneous.
Robert E. Keller, District Attorney, William L. McKinnon, Jr., Assistant District Attorney, for appellee.