Nash v. State

323 Ga.App. 438

746 S.E.2d 918

NASH

v.The STATE.

Davis

v.The State.

Nos. A13A0200, A13A0201.

Court of Appeals of Georgia.

July 16, 2013.

Michael Allen Kay, for Nash.Daniel J. Porter, Wesley Charles Ross, for the State.

BARNES, Presiding Judge.

After the traffic stop of the vehicle in which they were passengers, Kashif Nash and Antoine Davis were indicted on charges of possession of marijuana (Nash and Davis), and possession of cocaine with intent to distribute and trafficking in methamphetamine (Davis). Nash and Davis filed interlocutory appeals from the trial court's denial of their motions to suppress evidence obtained as a result of the traffic stop. The appeals—caSe no. a13A0200 And caSe no. a13A0201—have been consolidated for purposes of our review. For the reasons discussed below, we reverse.

At a hearing on a motion to suppress, “the trial judge sits as the trier of fact.” State v. Hamby, 317 Ga.App. 480, 481, 731 S.E.2d 374 (2012). When this Court reviews the grant or denial of a motion to suppress, we construe the evidence “most favorably to uphold the findings and judgment of the trial court, and that court's findings as to disputed facts and credibility must be adopted unless clearly erroneous.” Id. Upon our review, however, we owe “no deference to the trial court's conclusions of law” and are instead “free to apply anew the legal principles to the facts.” (Punctuation omitted). Martin v. State, 316 Ga.App. 220, 220, 729 S.E.2d 437 (2012).

So viewed, the evidence adduced at the hearing on the motion to suppress shows that an officer with the Gwinnett County Police Department initiated the stop of a vehicle after observing what appeared to be a window tint violation. As the officer approached the vehicle, which had a South Carolina license plate, he noticed an air freshener hanging from a rear driver side handle, and noticed an overwhelming odor of air freshener when the passenger let down the window. The officer also observed that there were three additional “air fresheners that were shaped like trees” and clip-on “air freshener[s] in every single one of the vents and the dash.”

In addition to the driver, there were two other individuals in the vehicle—Nash, who was the front seat passenger and Davis, who was seated in the back. The officer took the driver of the vehicle back to his patrol car while he verified his driver's license and the vehicle's registration.¹ Nash and Davis remained in the vehicle, which was registered to Nash's mother. The driver told the officer that Nash was the owner of the car, that Nash and Davis were his cousins, and that he was visiting family in Atlanta, although the driver subsequently told the officer that he was visiting family in Buford but that he also had family in Atlanta. The officer testified that the driver “wasn't able to give [him] an exact location in the Atlanta area.”

The officer then tested the window tint and, after determining that tint level did not comply with the “thirty two percent that the law states in Georgia,” informed Nash that he needed to remove or redo the tint to make sure that it was compliant with South Carolina law. The officer also asked Nash where the men were coming from and if they were related, and Nash told him that the driver was his cousin but that Davis was a friend. The officer testified that Davis “chimed in” that the men had “visit[ed] his people down in Atlanta.”

The officer testified that after he went to the window to measure the window tint, he radioed for officer assistance because he had become suspicious of criminal activity because of the air fresheners and conflicting stories. The second officer arrived less than 10 minutes after the radioed request, at about 20 minutes into the stop. The officer wrote the driver a warning citation, which the driver signed. He then counseled the driver about the citation, returned the driver's license and gave him a copy of the citation, but not the registration. The officer then asked the driver if “there was anything illegal inside the vehicle, specifically marijuana, cocaine, methamphetamine, or ecstasy.” The driver responded that there was not. The officer testified that he asked about the contraband because air fresheners are “commonly used as masking agents,” and because of the conflicting stories about who and where they were visiting, and their relationship.

The officer went back to the vehicle to give the registration to Nash and also asked him if “marijuana, cocaine, methamphetamine, [or] ecstacy” were present in the vehicle. The officer testified that he knew that the driver could not consent to a search of the car, so he had gone back to the car to get consent from Nash to search. Nash refused. The officer testified that he had to ask him for consent to search twice because when Nash first refused consent he mumbled and “would not make eye contact with [the officer] and he mumbled his response.” The officer also noted that Nash appeared nervous, and that he was surprised that the nervousness had not subsided after Nash had been told “he was getting a [warning.]”

The officer then radioed for a K–9 unit to be dispatched to the location. The K–9 officer testified that his unit was about 25 to 27 miles away when they received the dispatch and that it had taken “twenty minutes, give or take” to respond. After a free air search around the vehicle, the K–9 unit dog alerted on the trunk of the vehicle. Upon searching the trunk, the officers recovered a gallon size freezer bag containing marijuana weighing one pound. At the jail, police also recovered two small bags of marijuana and 100 ecstacy pills from Davis' person. Police also retrieved cocaine from under the back seat of the patrol car that transported Davis.

Davis testified at the hearing on the motions that he sat in the first officer's patrol car for approximately 45 minutes after the window tint investigation concluded, waiting for the K–9 unit to arrive. He also testified that the two officers searched under the seat and in the glove compartment before the K–9 unit arrived.

After the driver, Nash and Davis were indicted on charges related to the discovery of the drugs, the men moved to suppress evidence of the drugs, essentially arguing that there was no reasonable articulable suspicion of criminal activity to justify their continued detention once the officer wrote the warning for the window tint. After a hearing, the trial court denied the motions, but issued a certificate of immediate review.

In denying the motions, the court found that the officer “had sufficient information to justify a continued detention for the purpose of investigating his suspicion that there were illegal drugs in the vehicle.” The trial court further found that while the presence of air fresheners and conflicting stories about the men's travel destination and relationships “may not each be sufficient standing alone to justify a continued detention ... based on the totality of the particular facts in this case, [the officer] had sufficient articulable suspicion to justify a continued detention for the few extra minutes its took the K–9 officer to arrive.” The trial court found that the K–9 officer arrived on the scene within “30–45 minutes of the initial stop of the vehicle.”

On appeal, Nash and Davis essentially contend that the trial court erred in denying their motions to suppress because of the lengthy detention after the traffic stop was complete, and because the extended detention was not supported by reasonable articulable suspicion.

We first consider the reasonableness of the length of the detention. Upon this Court's review, “it is appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” (Punctuation and footnote omitted.) Pollack v. State, 294 Ga.App. 400, 404(3)(b), 670 S.E.2d 165 (2008) (physical precedent.)

A reasonable time to conduct a traffic stop includes the time necessary to verify the driver's license, insurance, registration, and to complete any paperwork connected with the citation or a 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.

(Citation and punctuation omitted.) Sommese v. State, 299 Ga.App. 664, 669(1)(b), 683 S.E.2d 642 (2009).

Here, while the officer was completing his investigation of the window tint, he questioned the driver about his destination and relationship with Nash and Davis, and also questioned Nash regarding the same matters when he returned to the vehicle to get the reading on the window tint. This questioning did not unreasonably expand the scope or duration of the stop. See State v. Davis, 283 Ga.App. 200, 203(2), 641 S.E.2d 205 (2007) (while carrying out these tasks, an officer may ask the driver questions wholly unrelated to the traffic stop or otherwise engage in “ small talk” with the driver, “so long as the questioning does not prolong the stop beyond the time reasonably required to complete the purpose of the traffic stop.”)

Moreover,

[a]n officer may order a free-air search of the area surrounding the vehicle by a trained canine without implicating the Fourth Amendment, if the same is performed without unreasonably extending the stop. As with any Fourth Amendment analysis, the touchstone of our inquiry is the reasonableness of the officer's conduct, which is measured in objective terms by examining the totality of the circumstances.

Young v. State, 310 Ga.App. 270, 273, 712 S.E.2d 652 (2011). We have approved brief detentions of fifteen minutes or less to await the arrival of a drug dog when an officer had reasonable suspicion of other criminal activity. See Richbow v. State, 293 Ga.App. 556, 667 S.E.2d 418 (2008) (no constitutional violation occurred when police delayed motorist...