Noble v. State

283 Ga. App. 81

640 S.E.2d 666

NOBLE v. The STATE.

No. A06A1902.

Court of Appeals of Georgia.

December 15, 2006.

Berry & Reynolds, D. Victor Reynolds, William C. Burn, Marietta, for appellant.

Patrick H. Head, District Attorney, Samuel W. Lengen, Amy H. McChesney, Assistant District Attorneys, for appellee.

MIKELL, Judge.

Brandon Noble appeals from his conviction for drug trafficking and possession, arguing that the trial court erred when it denied his motion to suppress drugs found in a search of his car incident to a traffic stop. We find no error and affirm.

The record shows that in August 2004, officers of a Cobb County narcotics unit received tips that Noble would be driving from Tennessee to Atlanta in his 1993 Nissan Altima for the purpose of transporting narcotics back to Tennessee. After two officers in an unmarked car identified Noble's Nissan, they began following it, noting a number of traffic violations as it sped through Atlanta back roads and then turned northbound onto I-75. After the Nissan entered Cobb County, the officers saw it make an improper lane change and follow a white van too closely. The officers radioed this information to a third officer driving a marked Cobb County police car, and asked him to stop the Nissan on that basis. The third officer, Hamilton, followed Noble as he exited I-75 and pulled up behind him at a red light, noting that Noble kept looking back at the police car through his rear and side mirrors. When Noble's car made a left turn, Hamilton turned on his blue lights and followed it into a McDonald's parking lot. Responding to a call for backup, a K-9 officer pulled in behind Hamilton as the first two watched to confirm that the correct car had been stopped.

Hamilton approached Noble's vehicle and explained that he had been stopped for traffic violations. The officer noted as he did so that Noble's hands were shaking. After checking his license and proof of insurance, Hamilton wrote out a citation for the traffic violations. Before returning Noble's license, Hamilton asked him whether he could search the car. Noble agreed, but asked whether the officer "really want[ed] to do this." At this point, Hamilton signaled to the K-9 officer to run his dog around the car. On its second pass, the dog alerted on the driver's side door, jumped inside the car through its open window, and alerted again on a computer bag in the back seat. Inside the bag, Hamilton found 21.5 grams of marijuana and 1.5 grams of methamphetamine. After Noble was placed under arrest, Hamilton found an additional 54.5 grams of methamphetamine in a trash bag on the floor behind the driver's seat.

Noble moved to suppress the drugs seized on the ground that the officers did not have probable cause to make the stop, that the officers impermissibly extended the stop, and that he did not consent to the search. After a hearing, the trial court denied the motion. After a stipulated bench trial, Noble was convicted of trafficking in methamphetamine and possession of marijuana with the intent to distribute and was sentenced to ten years to serve.

Where, as here, the credibility of the police officers testifying at the hearing on a motion to suppress is outcome-determinative,

the appellate court should be guided by three principles with regard to the interpretation of the trial court's judgment of the facts. First, the 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 it. Second, the trial court's decision with 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.¹

1. Noble first argues that the officers did not have probable cause to stop his car. We disagree.

If an officer witnesses a traffic violation, the ensuing stop is never pretextual, regardless of the officer's subjective intentions.² A traffic stop may also be justified based on the collective knowledge of all the police officers engaged in a joint investigation.³ Here, the evidence is undisputed that Officer Hamilton stopped Noble on the basis of the first two police officers' observations that Noble had followed too closely and made an improper lane change.⁴ Hamilton thus had probable cause to make the traffic stop.⁵

2. Noble next contends that although he gave consent to search, that consent was not freely and voluntarily given because Officer Hamilton's request for consent as well as the canine free-air search impermissibly prolonged the traffic stop. Again, we disagree.

Even after an officer has issued a citation for a traffic violation, the original investigation continues while he awaits a status report on the detained person's driver's license.⁶ If the officer asks for consent to search before his investigation is concluded, such a request does not amount to an impermissible extension of the traffic stop.⁷ Such consent will be held voluntary if the totality of the circumstances fails to show that police used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.⁸ Finally, it is plain that once a drug dog has alerted to a car, the police have probable cause authorizing the warrantless search of that car.⁹

Noble concedes that he gave consent to search and that less than ten minutes elapsed between the initial stop and the dog's free air search. It is uncontroverted that Hamilton asked for and received that consent as Noble was signing the citation, and that the canine free-air search was undertaken immediately and as a result of Noble's consent. Under these circumstances, neither Hamilton's request to search nor the free air search itself unreasonably expanded the scope or duration of the traffic stop.¹⁰

3. Finally, Noble argues that because the drug dog inserted his nose into the open driver's front seat window, the "free-air" search was in fact an impermissible search of...