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Sample Georgia Motion to Suppress and Brief in Support

by merlin on July 9th, 2014
  • Sumo

This does not include the case style or signature lines, and it also does not include the Exhibits used.  However, the Martin case discussed in the initial Motion itself is worth noting.

REVISED MOTION TO SUPPRESS UNLAWFULLY-OBTAINED EVIDENCE

COMES NOW XXXXX XXXX XXXXX, by and through undersigned counsel, and hereby makes and files this, his Revised Motion to Suppress Unlawfully-Obtained Evidence which the candid statements of the primary arresting officer shows is not legally admissible against him because the arresting officers were acting on little more than a hunch, making the repeated search of Defendant’s vehicle an unconstitutional “fishing expedition”, and all testimony and information concerning said items should not be heard by the trier of fact.  In support thereof, he states the following:

Article I, Section I, Paragraph XIII of the Georgia  Constitution of 1983 states in pertinent part that “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated”.  This reflects the protection of the Fourth Amendment to the United States Constitution which directs that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (emphasis supplied).

Both state and federal law permit a person to be briefly stopped and detained if there is articulable suspicion to do so, but they have to have a reasonable suspicion.  U.S. v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Giacini v. State, 281 Ga. App. 426, 636 S.E.2d 145 (2006)(discussing roadblock guidelines).  The reasonable, articulable suspicion “that the law has been or is about to be violated is less than probable cause, but greater than mere caprice.”  Zeeman v. State, 249 Ga.App. 625, 627, 549 S.E.2d 442 (Ga. Ct. App. 2001).  In this case, Officer XXXX XXXXX stated to XXXXX XXXXX and to Defendant himself that he observed the truck Defendant was driving cross over a lane of traffic as it turned onto the Square in XXXXX, Georgia.  This conversation is recounted in Exhibit “A”, attached and incorporated herein.  THIS was the pretext that somehow justified a complete and repeated search of XXXX XXXXX’ vehicle, inside and out, until eventually an amount of residue and a miniscule amount of marijuana was located under the vehicle by use of a K-9 unit.

In the case at bar, XXXX XXXXX is not charged at all with any matter other than the possession of contraband items, even though the items were allegedly only discovered after an exhaustive search.  Officer XXXXX stated to XXXXX XXXXX that he had some kind of extraneous information that XXXX XXXXX was involved in selling drugs, so the officer simply kept searching for a long duration until he finally discovered something illegal.  This is what is known as a “hunch”.  There were no charges arising from any articulable suspicion, and the search itself was objected to repeatedly by Mr. XXXXX.  The search, by itself, is in grievous violation of the legal rights of Defendant, and any and all items allegedly located as a consequence of that search must be immediately suppressed.

On June 15, 2012, the Court of Appeals of Georgia decided Martin v. State, 316 Ga.App. 220 (Ga. Ct. App. 2013), which contained reasoning that is directly applicable to this case.  The facts and the evidence showed that the officer observed the two Defendants ‘sluggish movements and slurred speech, having found them in a parking lot in freezing temperatures, asleep in a running truck in the early morning hours.  The officer had outside knowledge that one of the Defendants was involved in selling drugs.  Rather than accept their explanations for slurred speech and slow movements, or make efforts to determine if they were under the influence of any substance that had been legally-prescribed to them, or apply any less-intrusive method of determining the cause of their presence at that scene, the officer had a K-9 unit inspect the vehicle.  The trial court’s decision to deny a motion to suppress and to admit the contraband located by the dog was reversed, because of the remarkably unconstitutional conduct of the officer.  “A second-tier, investigatory detention was authorized “ ‘if based on the totality of the circumstances [the officer] had specific and articulable facts which, taken together with rational inferences from those facts, gave [him] a particularized and objective basis for suspecting [[the Defendant]] of criminal activity.’”  Martin at 223.  There was no constitutional articulable suspicion.

WHEREFORE, Defendant requests the following relief:

(a)      For a hearing on the admissibility or exclusion of the evidence seized in the above-styled case against XXXXX XXXX XXXXX;

(b)      For the issuance by the Court at the conclusion of that hearing an Order to suppress the evidence discovered unlawfully by law enforcement;

(c)      For limiting instructions to the State prior to any trial of the above-styled matter against any and all references to evidence obtained unlawfully; and

(d)     For such other and further relief as the Court in its discretion deems fit to grant.

 

BRIEF IN SUPPORT OF REVISED MOTION TO SUPPRESS UNLAWFULLY-OBTAINED EVIDENCE

 

COMES NOW XXXXX XXXXX, by and through undersigned counsel, and hereby makes and files this Brief in Support of Revised Motion to Suppress Unlawfully-Obtained Evidence, demand that the Court apply the simple principles of Martin v. State to the case against him and suppress the illegally-obtained evidence uncovered by a law enforcement search of his vehicle on or about August 4, 2013.

 Relevant Factual and Procedural History

In the early hours of XXXXX XX, 2013, a XXXXX, Georgia, law enforcement officer stopped a vehicle driven by Defendant XXXXX Clay XXXXX who was headed home after a week spent in XXXXX County, where he worked.  At the time, he was driving to his mother’s residence where his ex-girlfriend was staying with their infant son.  According to the narrative of the encounter, the reporting officer watched Defendant make a turn from the Square in XXXXX onto XXXXX XXXXX Street, at which time he apparently crossed the center lane slightly.  It is important to note that this incident happened at approximately 1:15 AM on a Sunday morning, when the streets were relatively empty, nor were there pedestrians.  Based on that failure to specifically maintain a lane through a turn onto an intersecting road, the officer in question apparently began following XXXXX XXXXX.  It is also important to note that at no time between that observed “irregularity” and the stop itself did he observe XXXXX XXXXX infringe upon the law at any point.  He executed a traffic stop, nonetheless.

When he made contact with XXXXX XXXXX and stated what he had seen, he was given a transmission problem with the vehicle as the reason.  Rather than accept the rational explanation given for erratic, but not illegal, driving, the officer decided to go further, at which time the stop proceeded from a simple investigative stop for which a rational basis existed and a rational explanation had been provided into the lands of criminal investigation.

Rather than charging him with any crimes for improper operation of a motor vehicle, and after a sobriety test had been administered and promptly successfully passed, the officer requested consent to conduct a K-9 search of the vehicle.  The interior was searched thoroughly and nothing was uncovered, but the officer then located residue from methamphetamine, marijuana, and a set of electronic scales, affixed to the undercarriage of the vehicle.  For the apparent crime of failing to keep his vehicle within marked lines while entering an adjoining roadway, XXXXX XXXXX was charged with Possession of Marijuana with Intent to Distribute, Possession of Methamphetamine with Intent to Distribute, and Possession of Drug Paraphernalia.

 Issue Presented

Officer XXXXX’s observation that XXXXX XXXXX failed to maintain his lane of travel during a turn onto an adjoining roadway nor his knowledge of any criminal drug activities by XXXXX XXXXX provided sufficient articulable suspicion to search his vehicle with a K-9 unit for illegal drugs underneath it.

 Argument and Citation to Legal Authority

I.    The Traffic Stop of the Vehicle Operated by XXXXX XXXXX Lacked Valid Articulable Suspicion for Further Investigation After an Initial Satisfactory Answer.

There is no question that the presence of law enforcement personnel outside the vehicle operated by XXXXX XXXXX was prompted by observed erratic driving.  According to the formal narrative submitted by the officer in question, as XXXXX XXXXX turned onto XXXXX XXXXX Street, he failed to maintain his lane of travel.  It was also noted that, during the drive, he was looking at the parking lots along the side of the road, and his vehicle alternately speeded up and slowed down, and moved back and forth at all times keeping within the same lane of travel.  Lastly, at an area where previously there had been a crosswalk for pedestrian travel that had since been removed, the driver stopped.  However, it is a sizeable stretch to observe someone unintentionally crossing the center lane of traffic while executing a turn, at a time when nobody else is on the road, and charging them with possession of a drug and intent to distribute that drug.

Presumably, the officers involved in this stop and subsequent search were acting under the guidelines of Hayes v. State, 292 Ga. App. 724 (Ga. Ct. App. 2008).  According to the result reached in that case, an investigatory stop involving a search of the vehicle is legal as long as it does not “unlawfully prolong the detention”.  Id. at 729.  In that case, the traffic stop had concluded and the officer had returned the driver’s paperwork and license, and then requested (and obtained) consent to search the vehicle, only locating the contraband after the consensual search.  In that case, the officer sought and was given consent to search!  The consent was denied in this case, and the officer used that denial of consent as justification to detain Defendant while he proceeded with his unrelated search.  A more accurate rule, then, arises from the nuanced findings in the case that originated this rule, Illinois v. Caballes, 543 U.S. 405 (2005), using the statement of the Court 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“.  Caballes, 543 U.S. at 408 (emphasis supplied).

The search of the vehicle itself, even under the law of Hayes, requires that the officer have some particularized suspicion since the investigation of the traffic irregularity had concluded and consent to search had been denied.  The contraband was not in plain sight, no arrest had been made based on the vehicle operation, and the facts show that the dog did not indicate on the first location checked, nor did it indicate on the second location checked, instead hesitantly indicating only after the third location was checked and at the urging of the handler himself.

A.   The officer did not have reasonable suspicion to search after he said he did not think XXXXX XXXXX was under the influence of anything making him less safe to drive.

The officer that interacted directly with XXXXX XXXXX had no indications of concealed drugs or of a particularized location where drugs were suspected to be concealed, but instead engaged in a fishing trip for culpability.  In fact, after pulling XXXXX XXXXX over and thoroughly testing him for impairment, the officer expressly told him that he did not think he was under the influence of alcohol or drugs to the extent that he was a less safe driver.  See Primary Narrative of XXXXX XXXXX, a copy of which is attached hereto and incorporated herein as Exhibit “B”.  At that point, the officer had no further probable cause to look for further evidence of criminal activity, because he had ended his traffic investigation and satisfied his curiosity.  “The existence of probable cause is determined by, whether, “given all the circumstances …, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”” State v. Gilman, 218 Ga.App. 895, 897, 463 S.E.2d 720 (Ga. Ct. App. 1995)( (Citations and punctuation omitted)(quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983));  Rivera v. State, 247 Ga.App. 713, 714, 545 S.E.2d 105 (Ga. App. 2001)(free air sniff by a drug dog was sufficient probable cause).  There was no “particular place” noted by the officer before conducting a search of the vehicle, and the law does not paint in such broad strokes.

Exhibit “B” states that the officer observed Mr. XXXXX travel “from the Square [in XXXXX] onto XXXXX XXXXX St.” at which time the vehicle apparently crossed the center line briefly while turning and corrected.  See Exhibit B.  Again, the time of the incident is listed on the report as 1:17 AM, and the officer clearly indicates that there is nobody else present except himself, his assisting officer, and Defendant.  Other than a burnt-out tag light, XXXXX XXXXX apparently showed absolutely no other indications of unlawful behavior.  The officer points out that the vehicle was travelling “back and forth in the lane of travel” but states that the vehicle was not “crossing either line”.  There is, therefore, no illegal operation of the vehicle observed.  When asked about this driving, Mr. XXXXX explained quite honestly that he was having transmission problems with his vehicle, and the facts bear this explanation out.  What’s more, the traffic stop ended at the resolution of its investigation when the officer expressly told XXXXX XXXXX that he did not think he was under the influence of alcohol or drugs to the extent that he was a less safe driver – a point made clear by Hayes v. State because anything further would necessarily unduly prolong the traffic stop.  More recently than Hayes, in Heard v. State, 2013 Ga. App. LEXIS 990, 4 (Ga. Ct. App. Nov. 22, 2013), the Court found that the officer’s actions, just like the officer’s actions in this case, had unduly prolonged the traffic stop (even though the stop itself lasted only about ten minutes) to conduct a drug investigation without having a legal basis for doing so.

B.  There is no logical connection between unusual, but not illegal, vehicle operation and concealed drugs.

In the case at bar, the arresting officer claimed that he witnessed XXXXX XXXXX cross the center line during a turn, and he observed the vehicle “travelling back and forth in the lane of travel without crossing either line”.  See Primary Narrative by XXXXX XXXXX, Case No. XX-XX-XX-XXX.  It is true that there can be articulable suspicion for a traffic stop even when the traffic violation is minor, but it is also important to note that there is no crime implicated by this manner of driving.  See generally Lee v. State, 188 Ga. App. 406, 373 S.E.2d 28 (Ga. Ct. App. 1988)(running a stop sign sufficient articulable suspicion).  The conclusion of the inquiry with a reasonable explanation provided should have ended the encounter, but the officer decided to pursue the encounter, and started a new investigation.  The law is clear that even a legitimate traffic stop will require the presence of probable cause to pursue further information – “the detention must be reasonably related in scope to the circumstances which justified the interference in the first place. Generally, an investigative detention must last no longer than is necessary to effectuate the purpose of the stop.”  United States v. Beltran-Palafox, 731 F. Supp. 2d 1126, 1145, 2010 U.S. Dist. LEXIS 54541 (D. Kan. 2010).  At the point that the officer had sated his curiosity about the manner in which the vehicle had been operated, told XXXXX XXXXX that he did not think he was under the influence of anything to the extent that he was less safe to drive, and been refused consent to search, the brief investigative detention ended and an unlawful detention began, because the purpose of the traffic stop had been fulfilled.

As in the case of State v. Burke, 230 Ga. App. 392 (Ga. Ct. App. 1998), “there were insufficient facts and circumstances within the knowledge of” the officer involved “or of which he had reasonably trustworthy information sufficient to warrant a prudent man in believing that” XXXXX XXXXX had concealed drugs on the vehicle he was driving, based on either the officer’s observations of the vehicle or the officer’s observations of the driver.  Burke at 393-394.  In the Burke case, the officer involved discovered the defendant with a gash in his leg caused, according to witnesses, while operating a motorcycle.  Though sobriety tests were not given, the defendant admitted to consuming two beers.  However, the Court found that the valid arrest effected for driving with a suspended license did not give the officer carte blanche to further conduct a DUI test.  While it is easy to argue that the case should be narrowly-construed to apply only to arrests under OCGA § 40-6-391 and tests based on suspicion of alcohol consumption, the case analogy should certainly apply to a vehicle search based on unformed suspicion and body language. That situation is plainly analogous, since the entire basis for the officer’s decision to engage in a K-9 search of the vehicle operated by XXXXX XXXXX arises, according to the report itself, from the investigation by the officer of the possible failure to maintain lane offense.  It is important to note that he only effected the arrest when he later found drugs on the vehicle.

II.  There were no valid grounds to search XXXXX XXXXX’ vehicle longer after the Traffic Stop ended.

An officer may certainly detain motorists for investigation when he observes them driving erratically, based on his suspicion that a legal violation is occurring, as “the behavior giving rise to the reasonable suspicion need not be a violation of the law.”  Semich v.State, 234 Ga. App. 89, 91, 506 S.E.2d 216 (Ga. Ct. App. 1998).  Further, the seminal case of Hayes v. State in 2008 stated that “even if police have no basis for suspecting that a person detained at a traffic stop is engaged in criminal activity unrelated to the stop, police may lawfully ask questions during the course of the stop about such unrelated activity, so long as the questioning does not prolong the stop beyond the time reasonably required to complete the purpose of the traffic stop” (emphasis supplied).  292 Ga. App. 724, 730, 665 S.E.2d 422 (Ga. Ct. App. 2008).

However, the question then arises in this case as to whether the detention was unnecessarily expanded by the actions of the investigating officer who stopped a motorist having car problems and then decided to go far further than the observed facts indicated and pursue hidden drugs.  There is no question that an officer can conduct a search of a vehicle driven by a citizen for drugs incident to arrest or if the contraband is in plain view.  However, there is absolutely NO indication that XXXXX XXXXX was formally placed under arrest prior to the search, and every indication that he was illegally detained until an open-air sniff of his vehicle by a K-9 could be conducted; he was not permitted to leave until after the additional search took place.

The officer engaged in permissive behavior up to and including his request for consent to search from Defendant.  However, he went further than the law allows.  “[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.” State v. Mauerberger, 270 Ga. App. 794, 795 (608 SE2d 234) (2004).  The officer was permitted by Hayes and its progeny to ask for consent to search, even as an afterthought at the conclusion of the investigatory traffic stop, but the denial of consent to search created an entirely new situation that violates that rule.

There were decidedly two different phases of the traffic stop in question – the first being solely the traffic stop itself, which concluded when the officer told XXXXX XXXXX that he did not appear to be under the influence of anything.  The second phase began the instant that the investigating officer insisted on performing a search of the vehicle with a K-9 unit after the initial traffic stop had been investigated and concluded, and purposefully kept XXXXX XXXXX at the scene while he conducted the search.  Though it is termed a “free air search”, there was nothing “free” about this incident.  There was nothing new discovered during that traffic stop that gave the officer any reason to believe that XXXXX XXXXX was concealing illegal substances somewhere on the vehicle he was driving, and the officer was preventing XXXXX XXXXX from continuing with his business and actively keeping his vehicle from leaving.  A seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. United States v.Jacobsen, 466 U.S. 109, 124, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984).  The interests are enshrined in both the United States and Georgia Constitutions for the protection of citizens against unreasonable government behavior; this certainly qualifies.

The officer noted in his report that “Mr. XXXXX was moving a small amount on a constant basis”, and because he apparently looked around town in places other than directly at the car driven by the police officer and the officer felt that his explanations were inconsistent, was acting nervous.  Contrary to the actions taken by the officer, even coupling nervous behavior with inconsistencies isn’t sufficient, either. Migliore v. State, 240 Ga. App. 783, 786, 525 S.E.2d 166 (Ga. Ct. App. 1999); Simmons v. State, 223 Ga. App. 781, 782 (2), 479 S.E.2d 123(Ga. Ct. App. 1996); Berry v. State, 248 Ga. App. 874, 881, 547 S.E.2d 664 (Ga. Ct. App. 2001); Gonzales v. State, 255 Ga. App. 149, 150, 564 S.E.2d 552 (Ga. Ct. App. 2002)(nervousness alone isn’t enough).  Indeed, the officer administered those tests and, though he noted a lack of convergence on one, told XXXXX XXXXX he was satisfied.  His decision to pursue a further level of investigation without any reasonable cause to do so demonstrates that the evidence seized by law enforcement officers from XXXXX XXXXX must be suppressed in the interests of justice.

Since there were factually two separate investigations, the officer was bound by a higher legal standard for the subsequent search.  “The appropriate legal standard for determining whether the additional questioning and the walk-around exceeded the scope of permissible investigation, in the absence of consent, is whether the officers had a reasonable suspicion that [the Defendant] was transporting illegal drugs. See State of Georgia v. Montford, 217 Ga. App. 339, 340-341 (457 S.E.2d 229) (1995). If the officers had no reasonable suspicion that [the Defendant] was transporting drugs, and if [the Defendant] did not consent to the search, then the detention following the conclusion of the traffic stop exceeded the scope of permissible investigation.”  Berry, at 881 (referencing Simmons at 782).

Berry may be easily analogized to the case at bar using the similarities between the two cases:  “Since the dog search was in no way connected to any problem with the [turn from one road onto an adjoining road], the officer must have had a reasonable suspicion that [XXXXX XXXXX] was transporting drugs.” Id.(referencing Simmons at 782).  “[E]ven if Berry were nervous, as if most citizens would not be when stopped by the police, “reasonable suspicion to detain and investigate for illicit drug activity does not arise from nervousness. . . .”  Id. (referencing Migliore at 786).  Stated more plainly, and directly applicable to this case, “[t]o meet the reasonable suspicion standard, an officer’s investigation during a traffic stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Although this suspicion need not meet the standard of probable cause, it must be more than mere caprice or a hunch or an inclination.”  Id. at 882.  All that Hayes did was to make it alright for the officer to conduct a K-9 free-air sniff around the vehicle as a part of the same stop.  That was clearly not what happened here.

 Conclusion

It is well-established 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 (Ga. Ct. App. 2000).  There was no arrest before discovery of contraband during a vehicle search that arose after the one anomaly in driving by XXXXX XXXXX had been thoroughly investigated and had ended without an arrest.  Therefore, the search of the vehicle in fact further extended the detention without consent and without being either a search incident to arrest or a search conducted pursuant to Hayes.  The contraband located must lawfully be suppressed under the governing legal standards.

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