Rodriguez v. State , 321 Ga. App. 619 ( 2013 )

Per curiam.

After being indicted for possession of marijuana with intent to distribute, Sonia Rodriguez filed a pre-trial motion to suppress the marijuana found by police when an officer stopped the vehicle she was driving and searched the vehicle pursuant to her consent. In this interlocutory appeal from the trial court’s denial of the motion, Rodriguez claims that her consent was involuntary and the search was illegal under the Fourth Amendment because: (1) there was no valid basis for the initial vehicle stop, and (2) even if the initial stop was valid, police searched the vehicle pursuant to an impermissible expansion of the scope and duration of the stop. We find that the trial court correctly denied the motion to suppress and affirm.

A police officer stopped the vehicle driven by Rodriguez based on information provided to the officer by an automatic license plate recognition (LPR) system. The LPR system used cameras mounted on the officer’s marked police car to record images of license plates on passing vehicles, including the white Chevrolet Impala driven by Rodriguez. The LPR system transmitted an image of the Impala’s license plate to a computer which automatically compared the license plate characters to a Georgia Bureau of Investigation database of outstanding arrest warrants. As the Impala passed by the officer’s car, the LPR system alerted the officer that Enrique Sanchez, born on August 24, 1987, was wanted on an outstanding arrest warrant for failure to appear in court on citations issued to Sanchez while driving the Impala with the displayed license plate. Based on the alert showing that Sanchez was the subject of an outstanding arrest warrant and had previously driven the passing Impala, the officer radioed other officers with information about the alert and pursued and stopped the vehicle.

When the officer stopped the vehicle, he immediately ran a computer check on the license plate which showed that the vehicle was registered to Sonia Rodriguez. The officer approached the vehicle and observed that it was occupied by the driver and a front seat passenger. The officer asked for a driver’s license from the driver, who provided a license showing the name Sonia Rodriguez, and asked for identification from the passenger, who gave the name Ereka Williams and a date of birth. As he obtained this information, the officer explained that he made the stop based on information that Enrique Sanchez had been cited for violations while driving the vehicle and failed to appear in court, and Rodriguez told the officer that Sanchez was her son and that he failed to appear because he was in prison. Upon obtaining identification information from the vehicle occupants, the officer immediately ran a computer check to look for any outstanding arrest warrants on the driver and the passenger and to verify the status of the driver’s license. The computer check revealed that the passenger had an outstanding arrest warrant from the State of Florida, and showed that the passenger’s driver’s license had been suspended for a controlled substance violation. At the same time the officer received this information on the computer check, a second officer, who had received radio information on the LPR system alert, arrived at the scene approximately four minutes after the initial stop. At that point, the officers waited for verification of extradition of Williams on the Florida charge, which one of the officers stated takes “a couple of minutes.” While waiting, one officer asked for and obtained consent from Rodriguez to search the vehicle. At the same time, the other officer informed Williams about the Florida arrest warrant and asked for and obtained consent to search inside Williams’ purse located on the front passenger seat of the vehicle. When one of the officers reached into the vehicle to obtain Williams’ purse, he smelled the odor of raw marijuana in the vehicle. In the search of the vehicle pursuant to Rodriguez’s consent, the officers found marijuana in the vehicle console and trunk. Marijuana was also found in a search of Williams’ purse.

1. Rodriguez waived the claim asserted on appeal that the initial stop of the vehicle —-based solely on information provided by the LPR system — was invalid.

Rodriguez’s written amended motion to suppress evidence of the marijuana did not assert that the initial stop of her vehicle was invalid. Rather, the motion claimed only that, after the officer stopped the vehicle and the reason for the initial stop had concluded, an officer illegally obtained her consent to search the vehicle by actions beyond the scope and duration of the initial stop. Likewise, at the hearing on the amended motion to suppress, Rodriguez made the same claim asserted in the written motion and made no claim that the initial stop was invalid. At the conclusion of the hearing on the motion to suppress, the trial court gave the parties the opportunity to file post-hearing briefs and stated “we’re addressing the issue of whether the stop’s any good at all.” It is unclear whether the court was referring to whether the initial stop was valid (a claim not made by Rodriguez in the motion or at the hearing), or to the actions taken by the officers after the initial stop. In any event, after the hearing, Rodriguez filed a brief in which she argued for the first time in the trial court that the State failed to produce evidence at the hearing showing that the LPR system was reliable enough under Harper v. State, 249 Ga. 519 (292 SE2d 389) (1982) to provide a basis for the initial stop, and failed to show that the LPR system provided the officer with information sufficient to create reasonable suspicion to make the initial stop.

[E]vidence exclusion is an extreme sanction and one not favored in the law. For this reason, OCGA § 17-5-30 (b) requires a motion to suppress to be in writing and to state facts showing that the search and seizure were unlawful. On a motion to suppress, the State is entitled to proper notice of the issue raised or it will be deemed waived. In other words, the suppression motion must be sufficient to put the State on notice as to the type of search or seizure involved, which witness [es] to bring to the hearing on the motion, and the legal issues to be resolved at that hearing.

State v. Gomez, 266 Ga. App. 423, 425 (597 SE2d 509) (2004) (citations and punctuation omitted); Young v. State, 282 Ga. 735, 736-738 (653 SE2d 725) (2007). The State was plainly not given the required pre-hearing notice of claims that the initial stop was invalid because the LPR system was not reliable under Harper or because the system failed to provide the officer with reasonable suspicion. Accordingly, these claims were waived. Id.¹

2. Assuming the LPR system provided the officer with information sufficient to justify the initial stop pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), as the trial court ruled, there is no basis for finding that the consent Rodriguez gave to search the vehicle was invalid as the product of an improper expansion of the scope or duration of the stop.

“Under Terry, an officer’s actions taken during a valid traffic stop must be reasonably related in scope to the circumstances which justified the stop in the first place, and limited in duration to the time reasonably necessary to accomplish the purpose of the stop.” State v. Williams, 264 Ga. App. 199, 202 (590 SE2d 151) (2003). The basis for the officer’s Terry stop of the vehicle was to investigate a reasonable suspicion that a person named Enrique Sanchez, who was wanted on an arrest warrant, was the driver or an occupant of the vehicle. When the officer approached the vehicle, he observed that both occupants of the vehicle appeared to be female. The record does not disclose whether the LPR system alert informed the officer that Enrique Sanchez was male. Even if the officer assumed, based on the name provided in the alert, that the person wanted on the warrant was probably male, and assumed based on appearance that the occupants of the vehicle were female, this did not require that the officer simply walk away from the stop without confirming the identities of all the vehicle occupants. It was reasonably within the scope of the circumstances which justified the stop for the officer to continue to investigate by seeking identification from the vehicle driver and passenger. Once the officer undertook to do so within the scope of the stop, it did not unreasonably expand the scope or the duration of the stop for the officer to conduct a computer check on the identification information for the purpose of determining whether the driver or the passenger had outstanding warrants against them. Wiliams, 264 Ga. App. at 202-203. “Even though such checks are not related to the circumstances which justified the stop, they are motivated by officer safety issues inherent in the stop.” Id. at 203.

The record shows that only four minutes after the initial vehicle stop was made the officer received computer confirmation that the passenger, Williams, was the subject of an outstanding arrest warrant from the State of Florida. While waiting “a couple of minutes” for verification of extradition of Williams on the Florida charge, an officer asked for and received permission from Rodriguez to search the vehicle. Thus, the officer’s questioning of Rodriguez concerning a consensual search of the vehicle occurred during a reasonably short prolongation of the stop for the purpose of verifying extradition on the outstanding warrant. “The Fourth Amendment is not violated when, during the course of a valid traffic stop, an officer questions the driver or occupants of a vehicle and requests consent to conduct a search.” Salmerón v. State, 280 Ga. 735, 736 (632 SE2d 645) (2006). Even though the officer’s request for consent to search was unrelated to the purpose of the stop, “[a] valid ongoing seizure is not rendered ‘unreasonable’ simply because, during its course, certain unrelated questions, which the detainee is free to decline to answer, are posed to him or her.” Id. at 738. Accordingly, the consent to search the vehicle given by Rodriguez was voluntary and not the product of an illegally expanded vehicle stop.

Judgment affirmed.

Andrews, P. J., and Barnes, P. J., concur. Boggs and Branch, JJ., concur in Division 2 and in the judgment. Ray and McMillian, JJ., concur in the judgment only. Ellington, C. J., Miller, P. J., Phipps, P. J., Doyle, P. J., and Dillard and McFadden, JJ., dissent.

1 Even assuming these claims were not waived, the State showed that the LPR system provided the officer with information that the vehicle at issue had been driven by Sanchez, who was the subject of an outstanding arrest warrant issued on probable cause of prior criminal conduct. Hernandez-Lopez v. State, 319 Ga. App. 662 (738 SE2d 116) (2013). This connection between Sanchez and the vehicle was sufficient to authorize police to stop the vehicle pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968) to investigate a reasonable suspicion that Sanchez was the driver or an occupant of the vehicle. Hernandez-Lopez, supra; see United States v. Hensley, 469 U. S. 221, 229-230 (105 SC 675, 83 LE2d 604) (1985) (reasonable suspicion of past criminal conduct justifies Terry stop; promotes public interest in identifying and promptly detaining suspects). For example, in United States v. Tellez, 11 F3d 530, 531-533 (5th Cir. 1993), police had information that a person the subject of an outstanding arrest warrant had been seen in a described vehicle. Id. This information was sufficient to authorize a subsequent Terry stop of a vehicle exactly matching that description to investigate a reasonable suspicion that the person sought on the warrant was an occupant of the vehicle. Id. The Terry stop was valid even though the person was not found in the vehicle. Id. Moreover, the test established in Harper, 249 Ga. 519, applies to determining the admissibility of expert testimony in support of novel scientific procedures offered as substantive evidence directly bearing on guilt or innocence. Id. at 523-525; Al-Amin v. State, 278 Ga. 74, 81 (597 SE2d 332) (2004). The Harper test does not apply to determine the admissibility of information generated by the LPR system offered, not as substantive evidence directly bearing on guilt or innocence, but to prove the manner in which police acquired reasonable suspicion to stop the vehicle. Al-Amin, 278 Ga. at 81.