Donner v. State , 191 Ga. App. 58 ( 1989 )

Pope, Judge.

Defendant Donner appeals his conviction of the offense of trafficking in marijuana. The sole enumeration of error raises the denial of a motion to suppress evidence found during the search of an automobile occupied by defendant.

The record shows that in the early morning hours of November 26, 1987, Georgia State Patrol Trooper Ralston received a request to check the rest area on northbound Interstate 75 near Adairsville, Georgia for a vehicle unconnected with the case sub judice. The trooper drove through the rest area and did not find the vehicle he was looking for but did find defendant sleeping in the back seat of a 1984 Oldsmobile Delta 88. The trooper woke defendant and inspected defendant’s driver’s license and automobile registration. The automobile was registered to Roger Bonner. When defendant was questioned about the vehicle’s owner he became “very nervous” and gave conflicting answers, first identifying the owner as his friend and then stating that the owner was a friend of his brother. Defendant did not know how to contact the owner. In response to the trooper’s queries, defendant stated he was a truck driver working part time and that he had been to West Palm Beach, Florida to sell a “time share.”

Trooper Ralston first approached the vehicle in which defendant was sleeping at 2:06 a.m. At approximately 2:12 or 2:15 a.m. Trooper Ralston contacted a State Patrol radio operator to run a check on defendant’s driver’s license and the vehicle registration. He also instructed the radio operator to telephone defendant’s wife in Illinois.

The radio operator reached defendant’s wife by telephone, informed her he was with the Georgia State Patrol, that defendant had been stopped in a routine traffic stop, that defendant had not been in an accident and asked her to answer some questions about defendant. Trooper Ralston instructed the radio operator as to the questions to be asked and the operator put defendant’s wife on hold while he transmitted her answers to the trooper. Through this inquiry Trooper Ralston verified some of the information given to him by defendant and learned that defendant and his wife had been having marital problems, that she had not seen him for three days and that she did not know his whereabouts or what type of vehicle he was in.

Defendant’s wife was upset and crying by the end of her conversation with the radio operator. Following the radio exchange, Trooper Ralston returned to the vehicle occupied by defendant, gave defendant his driver’s license and automobile registration and issued defendant a warning for sleeping in the rest area. Although Trooper Ralston was under the impression that a regulation of the Georgia Department of Transportation prohibited sleeping in rest areas, no such regulation existed. The trooper then requested permission to search the vehicle. (The time was 2:26 a.m.) Defendant refused permission for a search and Trooper Ralston’s request to travel approximately 20 miles up the road to allow a drug dog to sniff around the automobile.

Trooper Ralston advised defendant that he would be detained until the trooper could make an attempt to contact the owner of the vehicle, Roger Bonner. (The time was 2:28 a.m.) The trooper instructed the radio operator to telephone Bonner but was advised that there was no answer at the telephone number listed for Bonner.

Finally, at 2:40 a.m., thirty-four minutes after the trooper first approached defendant, he was told he was free to go. Defendant got back in the automobile and the trooper got back in his vehicle and parked nearby. Approximately five minutes later defendant exited the automobile, walked over to the trooper’s vehicle and told the trooper: “Well, since you have called my wife, we have been having marital problems and she has been ill, I’m going to go make a telephone call to her.” Trooper Ralston advised defendant: “Whatever you wish to do, you are free to go.” The defendant then went to the concession area at the rest area and used the telephone.

Prior to telling defendant he was free to go (sometime in the interval between 2:28 a.m. and 2:40 a.m.), Trooper Ralston had requested, by radio, that a drug dog be brought to the rest area. Trooper Ralston testified that he remained at the rest area to see if the drug dog would arrive before defendant left. Defendant was still using the telephone when the drug dog arrived at 3:50 a.m. The drug dog was used to sniff twelve to fifteen other vehicles parked in the rest area before the dog “alerted” to the trunk of the automobile in defendant’s possession. A subsequent search revealed a large quantity of marijuana in the trunk of the automobile.

Defendant argues the contraband was found as the fruits of an illegal search because he was detained illegally and without probable cause. Even if the officer’s thirty-four minute detention of the defendant, while investigating the ownership of the automobile defendant was driving, was unreasonable, the defendant was advised he was free to leave one hour and ten minutes before the drug dog arrived to sniff his car. Defendant claims he was on the telephone with his wife during this period. The record shows the radio dispatcher, at the officer’s request, dialed the wife’s telephone number while defendant was on the rest area telephone and discovered that her line was not busy. Even if the defendant was on the telephone with his wife, this fact does not establish that defendant’s presence at the rest area at the time the dog arrived was in any way related to, much less a necessary result of, his earlier detention by the officer. The record shows defendant had not been in touch with his wife in three days. If defendant felt compelled to telephone his wife to explain the officer’s earlier telephone call, he was not required to telephone her from the rest area. He was expressly told he was free to go and could have traveled to any other public telephone or to a private place of business to contact his wife.

At the time the drug dog “alerted” to the trunk of the vehicle he was driving, defendant had been free from restraint or detention for one hour and ten minutes. Defendant was in control of his own movements and voluntarily chose to leave his vehicle parked in a public area subject to detection by any police authority of any scents or smells emanating from it without the necessity of a search warrant. See United States v. Dicesare, 765 F2d 890 (9th Cir. 1985), amended 777 F2d 543. The officer was merely practicing good police work to use the resource of a drug dog to investigate the vehicle defendant had voluntarily left in the parking area. Once the drug dog “alerted” to defendant’s car, probable cause was established to conduct the search. Thus, the trial court did not err in denying the motion to suppress evidence found during the search and the conviction is affirmed.

Judgment affirmed.

Carley, C. J., Deen, P. J., Banke, P. J., Birdsong, Benham and Beasley, JJ., concur. McMurray, P. J., and Sognier, J., dissent.