The STATE v. ALLEN Et Al. , 328 Ga. App. 411 ( 2014 )

WHOLE COURT
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
July 16, 2014
In the Court of Appeals of Georgia
A14A0297. THE STATE v. ALLEN et al.
PHIPPS, Chief Judge.
After police discovered marijuana in a car that was stopped for lane infractions,
Patrick Scott and Dorian Allen, the driver and passenger, respectively, were indicted
for the possession of more than one ounce of marijuana.1 Scott and Allen moved to
suppress the drug evidence as the fruit of an illegal seizure. The court conducted an
evidentiary hearing, then granted their motion. The state appeals. For reasons that
follow, we affirm.
The sole witness at the suppression hearing was the patrol officer who initiated
the traffic stop. On direct examination, he testified to the following. On September
13, 2012, while stationed in the median of an interstate to monitor traffic, the officer
1
See OCGA § 16-13-30 (prohibiting possession of controlled substances).
observed a 2012 Nissan Altima vehicle cross from the center lane of travel into “the
fast lane.” As the Altima passed the officer’s stationary position, the officer saw the
driver “pointing his finger all in the passenger’s face.” Concerned that the driver was
distracted, the officer decided to catch up with the Altima. As he did so, the officer
saw the Altima “make the same lane infractions again”; the officer also saw that the
driver was “still reaching over with his fingers, pointing in the passenger’s face.” The
officer initiated the traffic stop.
The officer walked to the Altima and informed the two occupants, appellees
Scott and Allen, that they were stopped because of lane infractions. The officer asked
them whether they were having an argument. Scott answered no, and stated that he
was just talking to Allen. The officer advised Scott that he would be writing him a
courtesy warning for the lane infractions. The officer obtained from Scott his driver’s
license and obtained from Allen a South Carolina identification card.
The officer perceived that Scott and Allen were nervous. Because of the lane
infractions, the officer wanted to “see how [Scott] was on his feet” to “make sure he
wasn’t intoxicated.” The officer asked Scott to exit the vehicle; Scott got out of the
vehicle and walked to the location designated by the officer. The officer conducted
2
a pat-down search of Scott; after finding no weapon, the officer “engaged in general
conversation with [Scott]” while he wrote the courtesy warning.
But after writing the warning, the officer did not thereupon hand it (along with
the identifications) to Scott, who was standing beside him. Instead, as the officer
testified,
[O]nce I completed the warning I had dispatch check both of their
driver’s license[s]. Mr. Allen’s was through South Carolina and Mr.
Scott’s was through Georgia. While waiting on returns from GCIC to
come back, waiting on dispatch I had asked Mr. Scott for consent to
search his vehicle. Mr. Scott wouldn’t deny nor consent to a search.
The officer testified that Scott replied only that “you already got me stopped,” and
“[s]o at that time I had Mr. Allen exit the vehicle also and once Mr. Allen exited the
vehicle I had them both stand at the front of my patrol car and I retrieved my K-9
partner Kazan out of the rear of my vehicle.” When the officer walked the drug dog
around the Altima, the dog showed a positive odor response. The officer put Kazan
back into the patrol car, then began searching the Altima. While searching the interior
of the vehicle, the officer received the requested GCIC information from dispatch;
when the officer’s search reached the trunk of the car, he discovered the marijuana.
3
An audio-video recording of the traffic stop was played at the suppression
hearing.
On cross-examination, the officer provided additional details. He testified that,
when talking to Scott and Allen as they sat in the Altima, he had looked at the
vehicle’s interior, but had seen neither marijuana nor any drug paraphernalia; and he
had not detected the odor of marijuana. The officer stated that, when Scott complied
with his directive to step outside the Altima, Scott continued to appear nervous, but
showed “no signs of being intoxicated or impaired.” The officer had concluded,
“[Scott] wasn’t intoxicated.” Additionally, the officer agreed that “the courtesy
warning was completed at that time as we see in the video . . . when [he] contact[ed]
dispatch”; that “[a]fter [he] completed the warning” he “ran the license[s] at that
point”; and that the “written warning was completed prior to [his] running the GCIC
to dispatch.”
On motion to suppress the evidence, Scott and Allen argued that the drug
evidence was discovered only after the officer had unlawfully expanded the traffic
stop. In its order ruling thereon, the court recited that it had considered, inter alia,
both the officer’s testimony and the recording. The court set forth the state’s position
that the extended detention was authorized by the officer’s need to run a computer
4
check, then found, however, that “the officer did not begin this inquiry until . . . at the
point when the officer had finished writing a warning citation for the traffic offense.”
The court also determined that it was the drug dog’s response that provided probable
cause to search the vehicle, but ruled that at the time the drug dog had so responded,
Scott and Allen were being unlawfully detained – i.e., detained without any
articulable suspicion of criminal activity. Citing Weems v. State,2 the trial court
granted the suppression motion. In three related claims of error, the state challenges
this suppression ruling.3
In Miller v. State,4 the Supreme Court of Georgia reiterated three fundamental
principles that must be followed when conducting appellate review of a ruling upon
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
2
318 Ga. App. 749 (734 SE2d 749) (2012).
3
See OCGA § 5-7-1 (a) (4) (allowing the state to appeal “[f]rom an order,
decision, or judgment suppressing or excluding evidence illegally seized”).
4
288 Ga. 286 (702 SE2d 888) (2010).
5
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.5
Further, the Court instructed, “To properly follow the first principle, [an appellate
court] must focus on the facts found by the trial court in its order, as the trial court
sits as the trier of fact.” 6
Here, the trial court explicitly included in its order this pertinent finding: “the
officer did not begin this inquiry [the computer check at issue] until . . . the point
when the officer had finished writing a warning citation for the traffic offense.” This
finding must be accepted, as there was evidence adduced at the hearing that supported
it.7 For instance, as detailed above, the officer unequivocally testified so.8 Moreover,
the audio-video recording of the traffic stop supports the officer’s account. Construed
most favorably to the upholding of the trial court’s findings and grant of the
5
Id. at 286 (1) (citation and footnote omitted).
6
Id. at 287 (1) (emphasis in original).
7
See id.
8
See generally Salmeron v. State, 280 Ga. 735, 737 (1) (632 SE2d 645) (2006)
(citing the officer’s unequivocal testimony as support for the trial court’s finding).
6
suppression motion,9 the evidence showed that, before initiating the computer check,
the officer had concluded the tasks related to the investigation of the lane infractions,
including a determination that the driver Scott was not intoxicated. The officer,
therefore, lacked articulable suspicion of any drug (or other) crime, as the officer’s
perception that Scott and Allen were nervous “did not support a finding of
reasonable, articulable suspicion that would have justified prolonging the
detention.”10
As a general rule, an investigatory stop is not unreasonably prolonged by the
time necessary to run a computer check.11 But it does not necessarily follow that an
officer may initiate a computer check after completing the investigation into the basis
9
See Miller, supra at 286 (1).
10
Nunnally v. State, 310 Ga. App. 183, 187 (2) (713 SE2d 408) (2011); see Bell
v. State, 295 Ga. App. 607, 609-610 (2) (672 SE2d 675) (2009) (holding that
nervousness, perceived from driver’s refusal to make eye contact with officers,
together with driver’s “dry mouth,” did not constitute a particularized and objective
basis for officers to suspect that motorist possessed contraband); Payne v. State, 244
Ga. App. 734, 739-743 (4) (5) (536 SE2d 791) (2000) (deputy’s testimony — that the
stopped driver, inter alia, was nervous, had “shaking” hands, dropped items from his
wallet, would not “look me in the eye,” and was “shuffling around” — showed no
particularized and objective basis for suspecting that driver was, or was about to be,
engaged in criminal activity; thus, driver’s detention was unlawful).
11
Hayes v. State, 292 Ga. App. 724, 729 (2) (b) (665 SE2d 422) (2008).
7
for the traffic stop.12 Further, a police officer may check “for outstanding warrants or
criminal histories on the occupants of a vehicle at a valid traffic stop” based upon
concerns for officer safety “as long as under the circumstances they do not
unreasonably prolong the stop.”13 But “[o]nce the tasks related to the investigation
of the traffic violation and processing of the traffic citation have been accomplished,
an officer cannot continue to detain an individual without articulable suspicion.”14
A seizure that is justified solely by the interest in issuing a warning
ticket to the driver can become unlawful if it is prolonged beyond the
time to complete that mission. The officer’s purpose in an ordinary
traffic stop is to enforce the laws of the roadway, and ordinarily to
investigate the manner of driving with the intent to issue a citation or
12
Cf. St. Fleur v. State, 296 Ga. App. 849, 851 (1) (676 SE2d 243) (2009) (“In
this process [of writing a warning], the officers checked [the driver’s] identity with
a dispatcher.”); State v. Williams, 264 Ga. App. 199, 205 (509 SE2d 151) (2003)
(“[T]he computer checks run by the officer were diligently pursued during the course
of a valid traffic stop.”).
13
Matthews v. State, 294 Ga. App. 836, 840 (1) (d) (670 SE2d 520) (2008)
(citation and punctuation omitted; emphasis supplied).
14
Weems, supra at 752 (1) (citation and punctuation omitted) (finding that
“[t]he officer had completed the tasks related to the investigation of the traffic
violation of following too closely and had written the courtesy warning,” and, having
completed the investigation related to the traffic stop, “to legally expand beyond the
original investigation of following too closely and the issuance of the warning, the
officer had to show that he had articulable suspicion of other illegal activity”).
8
warning. Once the purpose of that stop has been fulfilled, the continued
detention of the car and the occupants amounts to a second detention.15
Accordingly, the evidence here showed that the officer – having accomplished the
tasks related to his investigation into lane infractions16 and having no reasonable,
articulable suspicion of criminal activity aside from the traffic violation –
unreasonably prolonged the duration of the traffic stop when he initiated the
computer check.17
15
Salmeron, supra at 736 (1) (citation and punctuation omitted).
16
See, e.g., Rosas v. State, 276 Ga. App. 513, 517 (1) (c) (624 SE2d 142)
(2005) (finding that “[a]n officer who lacks reasonable suspicion of other criminal
activity exceeds the scope of a permissible investigation of a traffic offense only if
he continues to detain and interrogate the subject, or seeks consent to search, after the
conclusion of the traffic stop or after the tasks related to the investigation of the
traffic violation have been accomplished”); cf. Young v. State, 310 Ga. App. 270,
273-274 (712 SE2d 652) (2011) (finding that “because the officer’s suspicions were
piqued by his observations of the truck’s condition, the strong scent of perfume
emanating from the cab,” the passenger’s demeanor, and the driver’s response to
questioning, the investigating officer was prompted and authorized to request a K-9
unit and to run criminal histories on both the driver and the passenger).
17
See Weems, supra (officer had no reason to continue to detain driver,
“particularly since he had already written [the driver] a warning citation before he
inquired into other criminal activity”).
9
The foregoing, governing principles were recently reinforced by the Georgia
Supreme Court’s decision in Rodriguez v. State,18 which recited:
In some cases, a detention is prolonged beyond the conclusion of the
investigation that warranted the detention in the first place, and in those
cases, the courts generally have concluded that such a prolongation –
even a short one – is unreasonable, unless, of course, good cause has
appeared in the meantime to justify a continuation of the detention to
pursue a different investigation.19
Construing the evidence in the instant case most favorably to the upholding of
the trial court’s findings and judgment, the investigation that warranted the detention
in the first place – for lane infractions – had concluded. And there was no evidence
that any “good cause . . . appeared in the meantime to justify a continuation of the
detention in order to pursue a different investigation”20 – that began when the
computer check at issue was initiated.21 (No evidence was adduced, and no argument
18
__ Ga. __ (___ SE2d ___) (2014) (Case No. S13G1167, decided June 30).
19
Id. at __ (2) (b) (emphasis supplied).
20
Id. at __ (2) (b) (emphasis supplied).
21
See generally footnote 15, supra, and the text it accompanies.
10
has been made, that the computer check was intended to aid the officer in determining
whether lane infractions had occurred.)
Finally, although the ultimate conclusion in Rodriguez was that the drug
evidence was admissible, the analysis employed by the Court is illustrative as
demonstrating adherence to and application of the above-cited governing principles
– the Rodriguez Court considered whether the evidence, when construed most
favorably to the upholding of the trial court’s findings and judgment, supported the
trial court’s suppression ruling that the computer check was initiated during a lawful
detention.22 In that case, the car driven by Rodriguez, who was accompanied by a
passenger, was stopped by police for the purpose of investigating the whereabouts of
a man with an outstanding warrant, “Enrique Sanchez.” 23 The police found drugs in
Rodriguez’s car, giving rise to the criminal prosecution, during which Rodriguez
moved to suppress the drug evidence, but the trial court denied her motion.24 The
question presented by that case was whether the detention was unreasonably
22
Accord Salmeron, supra.
23
Rodriguez, supra at __ (2) (b).
24
Id. at __.
11
prolonged by certain identification inquiries, including a computer check.25 The Court
answered that question in the negative.26
In reaching its conclusion, the Rodriguez Court made clear that it was
construing the evidence most favorably to support the findings and judgment of the
trial court in that case – the denial of the accused’s suppression motion.27 Further, the
Rodriguez Court explained that the inquiries and computer check at issue did not
constitute a different investigation, but were related to the investigation of the basis
for the traffic stop:
[T]hese additional inquiries to which Rodriguez objects were not
altogether unrelated to the investigation of Sanchez and his
whereabouts. Ascertaining and verifying the identities of the women in
the car were minimally intrusive means of confirming that neither was
the “Enrique Sanchez” for whom the officer was looking. . . . The
additional inquiries [and computer check] were not altogether unrelated
to the justification for the traffic stop.28
25
Id. at __ (2) (b).
26
Id. at __ (2) (b).
27
Id. at __ (2) (b).
28
Id. at __ (2) (b) (emphasis supplied).
12
The Rodriguez Court – having determined that the inquiries and computer check were
not a different investigation, but part of the original investigation (that formed the
basis of the stop) into the whereabouts of “Enrique Sanchez” – then cited “officer
safety” as an alternative basis for affirming the denial of Rodriguez’s motion to
suppress.29 Indeed, reliance upon “officer safety” presupposes that the officer is
engaged in the lawful discharge of his duties.30
The evidence in the instant case, when construed most favorably to the
upholding of the trial court’s findings and judgment granting the accused’s
suppression motion,31 shows that the officer had concluded his investigation that
warranted the detention in the first place; that the computer check initiated thereafter
was not related to the investigation of the basis for the stop (lane infractions); and that
no good cause had appeared in the meantime to justify a continuation of the detention
while the officer pursued a different investigation (that began when the computer
check was initiated). The continued detention – even if a short one – beyond the
29
Id. at __ (2) (b).
30
See id. at __ (2) (b) (noting principle that “[c]hecking for outstanding
warrants or criminal histories on the occupants of a vehicle at a valid traffic stop is
justified by concern for the officer safety during the stop”) (emphasis supplied).
31
See Miller, supra.
13
conclusion of the investigation that warranted the traffic stop in the first place was
therefore unreasonable. Because the officer was not authorized to initiate a different
investigation during that unlawful detention, it cannot be said that he was then
engaged in the lawful discharge of his duties; “officer safety,” thus, cannot serve as
justification for the computer check or for the unlawful detention. Notably, the officer
did not testify, nor did the prosecutor argue before the trial court, that officer safety
played any role in the computer check, the prolonged detention, or the search for
drugs in the Altima.
Given the foregoing, the state has demonstrated no basis to disturb the order
granting Scott’s and Allen’s motion to suppress the drug evidence. When the
evidence is viewed most favorably to the upholding of the trial court’s findings and
judgment, the trial court was authorized to conclude that the drug evidence was
discovered as a result of an unconstitutional seizure.
In concluding otherwise, the dissent states that it is relying solely on the audio-
video recording, and – after assessing those facts de novo32 – details a series of
actions taken by the officer before he completed the written warning, then asserts that
32
But see Miller, supra at 286 (1) (clarifying “fundamental principles which
must be followed when conducting an appellate review” of suppression rulings).
14
the officer initiated the computer check “[w]hile still speaking with Scott about the
nature of the warning.” Despite this broad characterization of the officer’s conduct,
what the recording specifically shows is the officer volunteering what he had already
said to the driver Scott minutes before – that he was issuing a courtesy warning, not
a ticket.33 But more importantly, as the trial court found (and as the officer testified
and as the recording shows), at the time the officer initiated the computer check, he
had already completed the written warning; rather than giving the completed warning
to the driver and allowing Scott and Allen to leave, the officer prolonged the
detention by initiating the computer check – which check had nothing to do with the
purpose of the stop: to investigate lane infractions. Finally, as the recording confirms,
after initiating the computer check, the officer engaged in nothing relating to the
investigation of the lane infractions. Indeed, the dissent cites nothing. As Miller
cautions: A reviewing court violates a “principle of appellate review by focusing on
its own assessment of the facts, rather than the facts set forth by the trial court.”34
On numerous occasions the appellate courts of this state have invoked
[the fundamental principles of appellate review explained in Miller] to
33
See generally footnote 15, supra, and the text it accompanies.
34
Miller, supra at 289 (2).
15
affirm trial court rulings that upheld the validity of seizures. These same
principles of law apply equally to trial court rulings that are in favor of
the defendant and their application to this trial court’s order . . .
demand[s] that the court’s order be affirmed.35
Judgment affirmed. Barnes, P.J., Ellington, P.J., and McFadden, J., concur.
Andrews, P.J., and Ray and McMillian, JJ., dissent.
35
Id. at 286-287 (1) (citation omitted).
16
A14A0297. STATE v. ALLEN et al.
MCMILLIAN, Judge, dissenting.
I respectfully dissent because I believe that the majority improperly focuses on
the officer’s testimony to conclude that the stop was completed at the time he
contacted dispatch to run the computer check. In doing so, the majority applies an
overly formulaic test and mistakenly ignores the objective facts surrounding the stop.
While I agree that credibility determinations made by a trial court must be accepted
unless clearly erroneous, I find that the controlling facts in this case are undisputed
because they are plainly discernable from the patrol car-mounted video recording, and
this Court should therefore review those facts de novo. See Johnson v. State, 299 Ga.
App. 474, 474-475 (682 SE2d 601) (2009). Moreover, even if I were persuaded by
the majority’s characterization of the officer’s testimony, “[t]he officer’s subjective
belief that he lacked authority to detain [defendants] for continued investigation does
not control where the facts objectively show the officer had such authority.” Cole v.
State, 254 Ga. App. 424, 426 (2) (562 SE2d 720) (2002).
Here, the recording clearly shows that the stop had not yet been completed.
Approximately seven minutes after the camera began recording, Officer Jackson
returned to the front passenger window to ask Allen for his current address to include
on the written warning. One minute later, he returned to the front of his patrol car
where Scott was waiting and continued writing the warning and answered additional
questions from Scott. While still speaking with Scott about the nature of the warning
and with the warning still in his hand, Officer Jackson contacted dispatch via the
radio on his lapel to ask for a computer check of Scott’s license and Allen’s
identification card.
It is well-established law that a valid traffic stop
includes the time necessary to verify the driver’s license, insurance,
registration, and to complete any paperwork connected with the citation
or written warning. A reasonable time also includes the time necessary
to run a computer check to determine whether there are any outstanding
arrest warrants for the driver or the passengers.1
(Citations omitted; emphasis in original.) Matthews v. State, 294 Ga. App. 836, 838
(1) (670 SE2d 520) (2008). Moreover, I am not aware of any controlling authority
that would require officers to initiate a computer check at a specific point within a
valid, ongoing traffic stop. Nor am I aware of any authority that would require an
1
Unlike the majority, I am not persuaded that a computer check must be
directly related to the reason for the investigative stop in order to find that continued
detention is warranted to complete the check.
2
officer to proceed in the most expeditious manner possible, as determined by a court
after the fact.
Rather, as the United States Supreme Court has cautioned,
[a] creative judge engaged in post hoc evaluation of police conduct can
almost always imagine some alternative means by which the objectives
of the police might have been accomplished. But the fact that the
protection of the public might, in the abstract, have been accomplished
by “less intrusive” means does not, by itself, render the search
unreasonable.
(Citations and punctuation omitted.) United States v. Sharpe, 470 U.S. 675, 686-687
(II) (B) (105 SCt 1568, 84 LE2d 605) (1985). In United States v. Brigham, the en
banc Fifth Circuit emphasized that “[t]here is . . . no constitutional stopwatch on
traffic stops” and, noting the Fourth Amendment touchstone of reasonableness,
declined to impose a particular sequence or constitutionally mandated protocol on
questioning and computer checks during traffic stops. 382 F3d 500, 511 (5th Cir.
2004).
As the majority notes, our Supreme Court recently provided additional
guidance on this very issue in Rodriguez v. State, __ Ga. __ (Case No. S13G1167,
decided June 30, 2014). The Court explained that there are two different types of
3
claims that a detention was unreasonably prolonged – those in which a detention is
allegedly prolonged beyond the conclusion of the investigation that warranted the
detention and those in which the investigation itself purportedly took too long. Id. at
__ (2) (b). In rejecting Rodriguez’s claim that her detention was prolonged beyond
the conclusion of the officer’s investigation into the reason for the stop, the Court
found that, although he may have gathered some information that might have
dispelled the original impetus for the stop, “the officer had done or said nothing at
that point to indicate to the women that his investigation of [the reason for the stop]
was concluded.” Id.
Turning to the second type of prolonged detention, the Court emphasized that,
although the length of the prolongation is not itself dispositive, the officer’s
additional actions prolonged the detention for only a couple of minutes at most.
Rodriguez, __ Ga. __ (2) (b). “So long as an officer pursues his investigation with
reasonable diligence, the Fourth Amendment is not offended.” Id. (“[T]he police are
not constitutionally required to move at top speed or as fast as possible. At a traffic
stop, the police can occasionally pause for a moment to take a breath, to think about
what they have seen and heard, and to ask a question or so.”) (citation and
punctuation omitted).
4
Here, although Officer Jackson may have completed the physical writing of the
warning, as in Rodriguez and unlike in Weems, the traffic stop had not yet concluded.
See Rodriguez, __ Ga. at __ (2) (b), n. 13 (“‘Normally, the stop ends when the police
have no further need to control the scene, and inform the driver and passengers they
are free to leave.’”) (quoting Arizona v. Johnson, 555 U.S. 323, 333 (II) (B) (129 SCt
781, 172 LE2d 694) (2009)). Officer Jackson had inquired and obtained identity
information from Allen and Scott prior to writing up the warning, and as he was
finishing the warning, the video shows that Officer Jackson called in the
identification information that he had previously obtained. Therefore, the stop was
not prolonged beyond the conclusion of Officer Jackson’s investigation into the stop.
Nor was the investigation itself unreasonably long. The record shows that at
the time Officer Jackson’s K-9 alerted to the presence of narcotics, the stop had been
extended by only three minutes. See Rodriguez, __ Ga. at ___ (noting with approval
an Eleventh Circuit case holding that a request for criminal histories as part of a
routine computer check is justified for officer safety and that such a check is
reasonable even if it extends the stop for three minutes beyond what was necessary
to complete the investigation that justified the stop).
5
Based on the totality of the circumstances and the particular facts of this case,
I do not find Officer Jackson’s actions to be unreasonable or that he unlawfully
detained Appellees. See Young v. State, 310 Ga. App. 270, 273-274 (712 SE2d 652)
(2011) (finding no unlawful detention where officer’s sequence of actions were to
first request relevant paperwork, ask the driver to step out of the vehicle, engage him
in conversation, and then request a K-9 unit before contacting dispatch to run a
computer search on the driver’s and passenger’s criminal histories); Hall v. State, 306
Ga. App. 484, 486 (2) (702 SE2d 483) (2010) (because the officer requested consent
to search before he received verification on the driver’s license, the request for
consent occurred before the purpose of the traffic stop was fulfilled); see also Bowens
v. State, 276 Ga. App. 520, 521 (623 SE2d 677) (2006) (traffic stop was not
prolonged by the dog’s free air search where the stop was still in progress because the
officer was running a computer check on the driver’s license and registration). I
would therefore reverse the judgment of the trial court granting the Appellees’ motion
to suppress.
I am authorized to state that Presiding Judge Andrews and Judge Ray join in
this dissent.
6