Richbow v. State

293 Ga. App. 556

667 S.E.2d 418

293 Ga.App. 556

RICHBOW v. The STATE.

No. A08A1297.

Court of Appeals of Georgia.

September 16, 2008.

Rebecca B. Paris, Calhoun, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

BARNES, Chief Judge.

David Harold Richbow appeals his conviction for trafficking in marijuana, contending that the trial court erred in denying his motion to suppress. Because the trial court did not err in concluding that the arresting officers had sufficient reasonable suspicion of criminal activity to justify detaining Richbow for an additional five minutes until a drug dog arrived and alerted, we affirm.

In reviewing a trial court's order on a motion to suppress, we construe the evidence most favorably to uphold the court's decision. The trial court sits as the trier of fact; its findings are akin to a jury verdict and will not be disturbed if there is any evidence to support them. Stated another way, in the absence of evidence of record demanding a finding contrary to the judge's determination, the appellate court will not reverse the ruling sustaining a motion to suppress.

(Citations and punctuation omitted.) State v. Stephens, 289 Ga.App. 167, 657 S.E.2d 18 (2008).

Richbow was driving north on Interstate 75 in Gordon County at 7:45 p.m. when he passed two police officers in a patrol car in the median. His speed dropped "drastically" from 70 mph to about 50, and the officers saw that his tag light was not working. While it was a natural reaction to slow down when passing a patrol car, it was not normal to slow down that much. They stopped him, and as the arresting officer approached his car he smelled a strong odor of air freshener and saw one bag-type air freshener on the rear deck and another bag stuffed into the interior vent. Using air fresheners is a "common practice when [drug dealers are] trying to cover the odor of illegal narcotics." As the officer asked for Richbow's license, Richbow was "visibly shaken. He was breathing real deep and rapid, and his lips were actually real dry and white in color." While many drivers were nervous when stopped by the police, Richbow was more nervous than usual, and the officer could see his pulse pounding in his neck. Three cell phones were visible in the car, which was an unusual number.

The officer explained that he stopped the car because it had no tag light, and when Richbow responded that he had not known and would get it fixed, his voice was shaky and he could hardly speak. The officer said he would just write a warning ticket and "went into a general conversation with him to evaluate the nervous level," but instead of becoming less nervous, as most motorists do when they know they will not get a ticket, Richbow's nervousness increased.

While the first officer was writing the warning ticket, a second officer returned to his patrol car and gave Richbow's tag and license information to an immigration customs enforcement database intelligence center, and based on the information he received and the other factors described, he called for a drug dog to come to the scene. The first officer finished writing the warning and the dog arrived within two minutes of being called. The dog gave a positive response while circling the car, which gave the officers probable cause to search it. Boggs v. State, 194 Ga.App. 264, 390 S.E.2d 423 (1990). The officers found four large bales containing more than 100 pounds of marijuana in the trunk of Richbow's car.

Richbow was indicted for trafficking, and after the trial court denied his motion to suppress, he stipulated at a bench trial that the substance found in the trunk was marijuana and that the four bales weighed at least 100 pounds. The State played a video of the stop during the trial, which showed that twelve and a half minutes elapsed between the beginning of the stop and the dog's arrival.

In denying Richbow's motion to suppress, the trial court held that his "excessive nervousness coupled with the air freshener and the cell phones being visible would be sufficient to justify further inquiry, and fortunately," the delay until the dog was summoned and put into action was only about five minutes. The court held that, given the circumstances, five minutes was not an inordinate delay, and denied the motion.

Richbow argues on appeal that the trial court should have granted his motion to suppress because he was detained beyond the time necessary to complete the traffic stop, and the officers had no objectively reasonable suspicions to justify his continued detention. While the State argues that the stop had not been completed when the dog arrived because the officer was still writing the warning ticket, the trial court did not find that the stop was ongoing and the record does not support that contention. The officer testified that the dog arrived a minute or two after he finished writing the ticket, which he was still holding. The trial court concluded, not that the traffic stop was ongoing when the dog arrived, but that the five-minute delay after the stop was completed was not inordinately long.

"The officer's purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention." (Citation and punctuation omitted.) Salmeron v. State, 280 Ga. 735, 736(1), 632 S.E.2d 645 (2006). While "[a] seizure that is justified solely by the interest in issuing a warning ticket to...