DocketNumber: A14A0012
Citation Numbers: 327 Ga. App. 745, 761 S.E.2d 142
Judges: Doyle, Miller
Filed Date: 6/25/2014
Status: Precedential
Modified Date: 9/8/2022
The State appeals from the trial court’s order granting Michael Cody Terrell’s motion to suppress evidence found after a traffic stop. The State contends that the trial court erred by finding that consent to search the vehicle was obtained after police unreasonably prolonged the detention during the traffic stop. For the reasons that follow, we reverse.
[There are] three fundamental principles which must be followed when conducting an appellate review of a trial court’s ruling on a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.1
The record is essentially undisputed and shows that an officer on patrol received a radio communication from an investigator who identified a particular vehicle as being suspected of drug activity and asked if the officer could observe a reason to justify a traffic stop of the vehicle. The officer located the vehicle and noticed a crack in the windshield sufficient to partially obstruct the driver’s view.
Thereafter, before the vehicle search began, an officer requested Terrell to exit the vehicle, and he did, throwing a styrofoam “QuikTrip” cup into a nearby trash can. The officer patted down Terrell and discovered several small plastic baggies in his pocket but no contraband. The brief vehicle search also failed to yield any contraband, and the officers concluded their engagement with Terrell and Lambert, who stayed at the gas station chatting and smoking cigarettes. After the first officer left the scene, the backup officer remained in his patrol car, which he had moved from the immediate scene and backed into a parking space. He sat in his patrol car and observed Terrell and Lambert as they lingered at the gas station. After approximately five or ten more minutes, Lambert and Terrell drove away, and the backup officer searched the trash can into which Terrell had thrown the QuikTrip cup. He located the cup and saw a glass pipe and several baggies of suspected methamphetamine inside. Terrell was later apprehended and charged with one count of trafficking in methamphetamine.
Terrell moved to suppress the evidence gathered during the pat-down search and from the trash can, and after an evidentiary hearing, the trial court granted the motion on the ground that the officer obtained consent to search the vehicle after unreasonably prolonging the traffic stop, rendering any evidence obtained thereafter “fruit of the poisonous tree.”
The Court had the benefit of a video tape, it had a time stamp on it that showed the traffic stop as it played out from beginning to end. The traffic stop[,] however, in this Court’s opinion, based on the facts and evidence presented here[,] exceeded the scope in detaining the driver and the Defendant past the time when the ... traffic citation warning was given to the driver at the scene. I believe on the tape that was somewhere around the ten-minute mark, ten-minute thirty mark. At that point in time it’s clear that the officer had no legal reasons to keep the driver there. There was no other independent articulable suspicion of illegal activity other than the initial traffic stop at that point in time, and the driver and the Defendant should have been free to leave at that point. At that point, however, the officers asked for consent to search the vehicle after the driver’s license was given back and the warning citation was done. They asked for consent to search from the driver, who upon testimony gave a consent to search her vehicle. Unfortunately[,] that consent to search came after the driver and the passenger were illegally detained and there . . . was no articulable suspicion of any criminal activity warranting a request for consent to search.10
The trial court relied on Weems v. State,*
Based on these facts, this Court held that there was no valid reason to continue to detain Weems and the passenger after the completion of the written warning: “The officer had completed the tasks related to the investigation of the traffic violation of following too closely and had written the courtesy warning,” yet the officer continued to detain the suspects for several more minutes while he questioned them, patted down the passenger, and completed a drug dog search.
The present case, however, presents a different factual scenario not controlled by Weems. Here, as noted by the trial court, the officer completed the tasks related to the investigation of the traffic violation and returned Lambert’s license to her in approximately ten minutes.
Judgment reversed.
(Citations and punctuation omitted.) Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013), quoting Miller v. State, 288 Ga. 286, 286-287 (702 SE2d 888) (2010).
Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012), citing Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).
The driver testified at the suppression hearing and did not dispute having a cracked windshield. See OCGA § 40-8-73 (e) (“No motor vehicle shall be operated with a windshield or rear window having a starburst or spider webbing effect greater than three inches by three inches”).
The fact that a traffic stop arises pursuant to an underlying drug investigation does not render the stop invalid if “an officer observes the motorist committing even a minor traffic violation,” such as the cracked windshield in this case. Valentine v. State, 323 Ga. App. 761, 763-764 (1) (748 SE2d 122) (2013). See also State v. Price, 322 Ga. App. 778, 780 (746 SE2d 258) (2013) (“If an officer witnesses a traffic violation, the ensuing stop is never pretextual, regardless of the officer’s subjective intentions.”).
The State did not introduce evidence of a Fourth Amendment waiver arising from Terrell’s parolee status, hut it did introduce a copy of his sentence, which Terrell was still serving and which contained a provision requiring Terrell to submit to searches without probable cause or reasonable suspicion. See generally Thomas v. State, 287 Ga. App. 163, 166 (1) (651 SE2d 116) (2007) (discussing searches pursuant to parole and probation waivers). Nevertheless, the trial court ruled that the search was fruit of the unlawful detention and the officers did not perform the search pursuant to a Fourth Amendment waiver associated with Terrell’s sentence or parolee status. On appeal, the State makes no argument as to the error of this ruling, so we do not address the effect of the waiver in Terrell’s prior drug sentence or his status as a parolee at the time of the search. See generally Court of Appeals Rule 25 (c) (2)
The officer can be heard on the recording of the stop ruling out a similarly named entry in the GCIC database.
Based on the video, the vehicle search took less than six minutes.
OCGA § 16-13-31 (e).
The fact that Terrell threw his cup into the trash does not create an abandonment such that we need not engage in a Fourth Amendment analysis of the traffic stop. See generally Watson v. State, 247 Ga. App. 498, 499 (544 SE2d 469) (2001) (the “constitutional protection of
(Emphasis supplied.)
318 Ga. App. 749 (734 SE2d 749) (2012).
See id. at 750.
Id.
See id.
See id.
See id.
See id.
See id. at 750-751.
See id.
See id. at 752 (1).
See id. at 752-753 (1).
We note that requesting Lambert to exit her vehicle to discuss and sign the warning was permissible as part of the traffic stop. See Sims v. State, 313 Ga. App. 544, 547-548 (722 SE2d 145) (2012) (During a traffic stop, “[t]he officer was... authorized to ask [the defendant] to step outside his car; ‘ordering [the defendant] from the car was an extension of the constitutionally valid detention resulting from the traffic stop.’ ”) (footnote omitted).
The trial court explicitly found that the officer “immediately requested consent to search after returning the license to Lambert.
See Rowe v. State, 314 Ga. App. 747, 750 (2) (a) (725 SE2d 861) (2012) (“Upon receiving [her] license and warning ticket, a reasonable person would have concluded that the traffic stop had ended.”) (citation and punctuation omitted).
Davis v. State, 306 Ga. App. 185, 187 (1) (702 SE2d 14) (2010), citing Davis v. State, 303 Ga. App. 785, 787 (694 SE2d 696) (2010); Hayes v. State, 292 Ga. App. 724, 730 (2) (e) (665 SE2d 422) (2008) (officer’s request for consent to search 30 seconds after issuing a warning ticket did not unreasonably prolong the detention).
We note in particular that the trial court’s statement at the hearing, “there . .. was no articulable suspicion of any criminal activity warranting a request for consent to search,” implies a misapplication of the law. See generally Bacallao v. State, 307 Ga. App. 539, 541-542 (705 SE2d 307) (2011) (even if police have no basis for suspecting a particular individual, they may generally ask questions of that individual and request consent to search as long as the police do not detain the person or convey a message that compliance with their requests is required).