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The Confusing Georgia Approach to Vehicle Searches

by merlin on January 9th, 2014
  • Sumo

In Georgia, the current trend in the law seems to indicate that there is a large difference between a pedestrian’s rights and the rights of that same person if they are in an automobile (frequently, even if they are the passenger).  We all know that you shouldn’t drive around with contraband on the floorboards.  Even if the contraband is the sole property of a passenger, the danger exists that the driver will be arrested or the car itself seized.

In 2005, there seems to have been a previously-unthought-of change in the law.  The Court of Appeals of Georgia decided the case of Hayes v. State, 292 Ga. App. 724, and announced that a vehicle search was acceptable when it accompanied a traffic stop, provided it did not unduly prolong the detention.  The opinion makes it clear that the Court was trying to remain true to the standard announced in the United States Supreme Court case of Illinois v. Caballes, 543 U.S. 405, even quoting the case’s reasoning when it noted that “the state court’s conclusion that the duration of the stop . . . was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop“.  Id. at 408.

However, the approach is more nuanced than just deciding that a stop was too long for what justified it in the first place.  The rights guaranteed to citizens and common sense show that there is more to the story than an arbitrary time limit, and some cases have upheld stops and searches that took less than ten minutes, while others have stricken them down.

 Whether a person is walking on the sidewalk or driving on the street, law enforcement is free to initiate conversation.  However, while the pedestrian is then apparently free to continue on their way unless the officer has a reasonable suspicion of actualized wrongdoing – more than “an inchoate hunch” – law enforcement seems to regularly use the below case, Byers v. State, as carte blanche to conduct a full search of the vehicle operated by the citizen incident to either an arrest that arises because of a cited, witnessed traffic violation or one that arises based on what the officer found when he or she searched.  Below is the decision from Byers (272 Ga. App. 664, 613 S.E.2d 193 (Ga. Ct. App. 2005).

Mary Erickson, Decatur, for Appellant.

David McDade, District Attorney, Paul J. Miovas, Jr., Douglas County District Attorney, for Appellee.

ANDREWS, Presiding Judge.

In a stipulated bench trial, Phillip Adolph Byers was found guilty of possession of marijuana with intent to distribute.1 Byers appeals, claiming the trial court erred in denying his motion to suppress the drugs discovered in his car during a traffic stop. Because we find no error in the trial court’s ruling, we affirm.

When reviewing a trial court’s ruling on a motion to suppress, we construe the evidence most favorably toward upholding the trial court’s findings and judgment and we accept that court’s findings on] issues of disputed fact and credibility unless those findings are clearly erroneous. Ledford v. State, 220 Ga.App. 272, 273, 469 S.E.2d 401 (1996).

Here, the transcript from the suppression hearing shows that Investigator Mitchell testified that he was on his way to work in an undercover vehicle, when he noticed the driver ahead of him weaving in and out of traffic. Mitchell noted that the driver, later identified as Byers, was going noticeably faster than the rest of the cars and he had to exceed the speed limit to keep him in sight.

Mitchell called for assistance and Sergeant North, who was on patrol in a marked unit with his drug dog, responded. After North also saw Byers change lanes improperly, he turned on his lights and pulled Byers over to the shoulder.

After asking Byers for his license and insurance, North asked him to step back to the rear of the car. North asked Byers about weapons and Byers denied having any. When North asked if he could do a pat-down, Byers told him that he did have a knife. North then asked if there were any weapons or contraband in the car. North stated that Byers seemed very nervous and shaky, and that his voice was “broken-up.” North noticed a complete change in Byers’s temperament and demeanor when he asked Byers about having any drugs.

At that point, North asked Mitchell to write the citation while he did a walk-around with the drug dog.2 As Mitchell was writing out the traffic ticket, North walked his dog around the perimeter of Byers’s car. During the walk-around, which North testified lasted 30 to 45 seconds, the drug dog alerted. North asked Byers if there was anything he wanted to tell him, and Byers said there were six pounds of marijuana in the car. Byers was then arrested, and the marijuana found inside his car was confiscated.

Byers contends that the search of his vehicle was unlawful because it was done without his consent, without a search warrant, and without any articulable suspicion. Although conceding the legality of the initial traffic stop, Byers challenges the subsequent detention and search, which he claims went beyond the scope of the initial stop. He points out that a display of nervousness, without more, is insufficient to authorize a search of a vehicle. See Montero v. State, 245 Ga.App. 181, 184, 537 S.E.2d 429 (2000).

Under the Fourth Amendment’s proscription against unreasonable seizures, an officer must have reasonable suspicion of criminal conduct before conducting additional questioning and searching a vehicle once a normal traffic stop has ended and the officer has told motorists they are free to go. Evans v. State, 262 Ga.App. 712, 715(1), 586 S.E.2d 400 (2003). Here, the evidence shows that while one officer was in the process of writing the citation, the other officer was doing a walk-around of the car with the drug dog. Mitchell testified that from the time that Byers was pulled over until he began to write Byers the citation, only two or three minutes had elapsed. At the time the drug dog alerted on Byers’s car, the traffic stop was still in progress. While Byers was being briefly and validly detained, North was free to walk his trained drug detection dog around the car.

See Jones v. State, 259 Ga.App. 849, 851, 578 S.E.2d 562 (2003).

Unlike Simmons v. State, 223 Ga.App. 781479 S.E.2d 123 (1996), upon which Byers relies, the drug dog search was not conducted after the citation was issued and the traffic stop completed. Also compare Padron v. State, 254 Ga.App. 265, 268-269(1), 562 S.E.2d 244 (2002). The undisputed evidence is that the drug dog walk-around and alert occurred before Officer Mitchell finished writing out the traffic citation. Therefore, Byers’s detention was not prolonged for any length of time beyond the initial stop.

Smith v. State, 216 Ga.App. 453454 S.E.2d 635 (1995), also cited by Byers, is not on point. In Smith, unlike here, the driver was illegally detained pending the arrival of a K-9 unit based upon “the officer’s hunch that Smith’s truck contained narcotics.” Id. at 455, 454 S.E.2d 635. This Court held that Smith’s motion to suppress should have been granted because “the marijuana was discovered during the continued illegal detention of Smith.” Id. Here, there was no illegal detention. Nor was this a situation where police lacked reasonable, articulable suspicion to stop a defendant’s vehicle in the first place. See Berry v. State, 248 Ga.App. 874, 882, 547 S.E.2d 664 (2001); see also State v. Burns, 238 Ga.App. 683, 686, 520 S.E.2d 39 (1999).

Byers also argues that North’s questioning before he brought out the drug dog and before the traffic citation was issued, exceeded the scope of the traffic stop. “[A] police officer, having effected a valid stop of a vehicle, does not violate a driver’s Fourth Amendment rights merely by inquiring about his possession of weapons or drugs or requesting his consent to search his vehicle for those weapons or drugs.” State v. Mauerberger, 270 Ga.App. 794, 795, 608 S.E.2d 234 (2004). “[I]t is not the nature of the question that offends the Fourth Amendment, it is whether in asking the questions the officer impermissibly detains the individual beyond that necessary to investigate the traffic violation precipitating the stop.” (Citations and punctuation omitted; emphasis in original.) Id.

Here, the officer’s question as to whether he had weapons or contraband in the car did not unreasonably detain Byers beyond the time necessary to investigate the violation and write up the citation. As previously stated, it was only a matter of minutes between the stop and the time the officer began writing the citation.

Finally, as to Byers’s incriminating remarks about the marijuana after the drug dog alerted, the officers had probable cause to search his car before they questioned him. “Once the dog alerted on the outside of the car, the officers had probable cause to believe that contraband would be found inside and were authorized to conduct a search.” (Citation omitted.) Jones, supra, 259 Ga.App. at 851, 578 S.E.2d 562.

Therefore, because the initial stop was justified and because Byers was not detained any longer than necessary to effectuate the purpose of the stop, the trial court did not err in denying Byers’s motion to suppress the marijuana found in his car. Id. at 852, 578 S.E.2d 562.

Judgment affirmed.

PHIPPS and MIKELL, JJ., concur.

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Notes:

1. Byers stipulated to venue in Douglas County and to a crime lab report that the marijuana confiscated weighed three pounds.

2. Calling for a drug dog to do a walk-around of the car is not a search within the meaning of the Fourth Amendment. See, e.g., Kates v. State, 271 Ga.App. 326, 327-328(1), 609 S.E.2d 710 (2005).

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It should be argued that the analysis used by the Court in the 2010 pedestrian-stop case of Daniels v. State (307 Ga. App. 216, 704 S.E.2d 416) should be used, instead, and the reasoning of the Court used in reaching the decision to remand the case to the trial court to grant the motion to suppress should apply whether a person is in a motor vehicle or not:

Lauren B. Shubow, for appellant.Paul L. Howard Jr., District Attorney, Elizabeth A. Baker, Walter B. Yarbrough, Assistant District Attorneys, for appellee.

BARNES, Presiding Judge.

Following a stipulated bench trial, the trial court found Kenan Daniels guilty of possession of a firearm by a convicted felon. Daniels appeals, contending the trial court erred by denying his motion to suppress. As we find that the trial court erred by denying Daniels’ motion to suppress, we must reverse his conviction and remand the case to the trial court with direction to grant Daniels’ motion to suppress.

In this State, [w]hen an appellate court reviews a trial court’s decision on a motion to suppress, our responsibility is to ensure that there was a substantial basis for the decision. Morgan v. State,195 Ga.App. 732, 735(3), 394 S.E.2d 639 (1990). We are guided by three principles when interpreting the trial court’s determination of the facts. Whenonsidering such a motion the trial court is the trier of facts. The court hears the evidence, and when its findings are based upon conflicting evidence, they are analogous to a jury verdict and must not be disturbed by an appellate court if any evidence supports them. Also, the trial court’s decisions regarding questions of fact and credibility of witnesses must be accepted unless they are clearly erroneous, and the evidence must be construed most favorably toward upholding the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994). Additionally, when the evidence is uncontroverted and no question about a witness’s credibility exists, “the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994).

Hobbs v. State, 272 Ga.App. 148(1), 611 S.E.2d 775 (2005). As the evidence is not controverted and no question of credibility exists, we will review the trial court’s ruling de novo.

The evidence at the suppression hearing showed that at approximately 1:00 a.m. on November 15, 2009, a woman flagged down a patrol officer to report that her boyfriend had struck her, leaving a knot the size of a golf ball on her forehead, took her car keys, and left on foot from their hotel. The victim described the man as a light-skinned black male wearing a black leather coat, black pants, and black “Jordan” shoes. The officers began looking for the perpetrator in the area, and five to ten minutes later, they saw Daniels walking about two blocks from the scene. They detained him as soon as they saw him.

The officers testified that Daniels was the only person walking on the street at that time. Without asking him to identify himself, the officers immediately handcuffed Daniels and then patted him down and found a gun in the waistband of his pants. The officers then took Daniels to the victim’s location, and she said he was not the man who struck her. That man returned to the scene while the officers were holding Daniels.

Based on the gun found in Daniels’ waistband, the State charged him with possession of a firearm by a convicted felon. Before trial, Daniels moved to suppress evidence of the gun supporting the charge, but after an evidentiary hearing, the trial court denied the motion, finding that the facts justified a brief investigative detention and pat-down for weapons for the officers’ safety. The court further found that the fact that Daniels “was handcuffed prior to the authorized pat-down is irrelevant since all that was done was a pat-down and not a search.” Then, after a bench trial in which Daniels stipulated to the evidence necessary to prove his guilt, the trial court found him guilty. This appeal followed.

1. Daniels first argues that police lacked authority to stop and frisk him as he walked down the street in the early morning hours of November 15, 2009. “Theoretically, there are at least three kinds of police-citizen encounters: verbal encounters involving no coercion or detention; brief ‘stops’ or ‘seizures’ which must be accompanied by a reasonable suspicion; and ‘arrests’ which must be supported by probable cause. [Cits.]” Verhoeff v. State, 184 Ga.App. 501, 503(2), 362 S.E.2d 85 (1987). Because Daniels was stopped and detained, the parties agree that this encounter was a second-tier detention requiring reasonable, articulable suspicion of criminal activity.

Although “[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law,” the United States Supreme Court has also recognized the need for effective law enforcement and for the protection of law enforcement personnel. (Punctuation omitted.) Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 186820 L.Ed.2d 889 (1968).

[T]he U.S. Supreme Court has determined that a law enforcement officer may conduct a constitutional investigatory stop of an individual when the officer is able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant that intrusion. Over a decade later, the Court restated the standard when it held that an investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. The [Court] went on to elaborate: based upon the totality of the circumstances, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. Thus, the inferences and deductions of a trained officer, drawn from objective observation, must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. This demand for specificity in the information upon which police action is predicated is the central teaching of the Supreme Court’s Fourth Amendment jurisprudence.

(Citation and punctuation omitted.) Postell v. State of Ga., 264 Ga. 249443 S.E.2d 628 (1994). “Whether a given set of facts rises to the level of reasonable, articulable suspicion of criminal activity is a legal question.” Jones v. State, 253 Ga.App. 870, 873, 560 S.E.2d 749 (2002). Obviously, a mere hunch is not enough. State v. Kwiatkowski, 238 Ga.App. 390519 S.E.2d 43 (1999).

If an officer lacks probable cause to arrest a suspect, however, he need not “shrug his shoulders and allow a crime to occur or a criminal to escape.” Stiggers v. State, 151 Ga.App. 546, 547, 260 S.E.2d 413 (1979). A “brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time. [Cit.]” Id.

The evidence presented at the hearing on Daniels’ motion to suppress shows that the officers had a sufficient basis for a brief initial Terry stop. Daniels partially fit the description given by the victim of the person who had attacked her. He had the correct skin tone, was wearing a black leather jacket, and had on dark jeans that, given the lighting, appeared black. Thus, we find that the trial court did not err by finding that the initial stop was authorized, given the description, the time of night, and the lack of foot traffic in the area. The discrepancies between Daniels’ dress and the description were not apparent until after he was stopped.

2. Pretermitting whether the officers were authorized to handcuff Daniels, we find that the officers had no authority to conduct the pat-down that discovered the weapon on Daniels’ person. In Sibron v. New York, 392 U.S. 4088 S.Ct. 188920 L.Ed.2d 917 (1968), the Court held that a police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.

Id. at 64, 88 S.Ct. 1889. The fact that the officers suspected that Daniels might have been the one that assaulted the victim with his fists does not reasonably give rise to a belief that Daniels was armed and a threat to the officers. An officer may frisk a suspect during a second-tier stop only if the officer believes that the individual is armed or a threat to officer safety. SeeMontgomery v. State, 279 Ga.App. 419, 420, 631 S.E.2d 717 (2006).

The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.

(Citations and footnote omitted.) Terry v. Ohio, supra, 392 U.S. at 27, 88 S.Ct. 1868.

The State has the burden of proving the propriety of a search without a warrant. See State v. Slaughter, 252 Ga. 435, 436, 315 S.E.2d 865 (1984). We are mindful, of course, that

a law enforcement officer who detains a person for purposes of investigation should not be denied the opportunity to protect himself from attack by a hostile suspect and may lawfully detain the person in a manner reasonably necessary to protect his personal safety and to maintain the status quo.

(Citations and punctuation omitted.) Holsey v. State, 271 Ga. 856, 861(6), 524 S.E.2d 473 (1999). Nevertheless, we have said time and again that, in the context of an investigative detention, a frisk for weapons is permissible only when the officer has some reason to believe that the person detained has a weapon on or about his person. See, e.g., Molina v. State, 304 Ga.App. 93, 95, 695 S.E.2d 656 (2010); [307 Ga.App. 220] State v. Merit, 262 Ga.App. 687, 690 n. 11, 586 S.E.2d 393 (2003); Bayshore v. State, 258 Ga.App. 65, 67, 573 S.E.2d 97 (2002); Hodges v. State, 217 Ga.App. 806, 808(2), 460 S.E.2d 89 (1995).

The mere fact that the officers believed Daniels might be the person that struck a woman with his hands, without more, does not establish that the officers had a reason to believe that Daniels was carrying a weapon when they undertook to frisk him. Because the record reveals no proof of other circumstances known to the officers when they commenced the frisk that would lead a reasonable officer to conclude that Daniels had a weapon or instrument capable of being used as a weapon on his person,1 the State has not carried its burden of proving the propriety of the search.

Accordingly, the trial court erred by finding that the officers were authorized to patdown Daniels and, thus, erred in denying Daniels’ motion to suppress. Therefore, Daniels’ conviction must be reversed and the case remanded to the trial court with direction to grant Daniels’ motion to suppress.

Judgment reversed and case remanded with direction.

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Notes:

1. For instance, there is nothing in the record to suggest that Daniels was hostile, belligerent or uncooperative when the officers stopped him, that the officers witnessed Daniels act in a suspicious or furtive manner, that Daniels appeared to be affiliated with a street gang, that the officers knew Daniels to have carried a weapon in the past, that someone had reported to the officers that the perpetrator for whom they were looking was armed, or that the officers were aware of facts about the assault they were investigating that would cause them to believe that a weapon was used in the assault.

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