Rush v. State

368 Ga.App. 827

890 S.E.2d 883

RUSH v. The STATE.

A23A0637

Court of Appeals of Georgia.

July 24, 2023

Brock Arthur Johnson, for Appellant.

William Jeffrey Langley, Blair Douglas Mahaffey, for Appellee.

Gobeil, Judge.

Following a bench trial, the trial court found Bobby Dail Rush guilty of trafficking in methamphetamine, possession of a Schedule II controlled substance (oxycodone), possession of a firearm during the commission of a felony, and possession of drug-related objects. Rush appeals directly from his judgment of conviction, arguing that the trial court erred in denying his motion to suppress because: (1) the deputy lacked sufficient probable cause or reasonable articulable suspicion to initiate the traffic stop; (2) the responding deputies unlawfully protracted the traffic stop by abandoning "the mission" of the stop (predicated on a traffic infraction) to pursue a drug investigation without valid justification; and (3) the deputies improperly undertook an investigation unrelated to the purported traffic infraction in an attempt to justify the stop and the subsequent illegal search of Rush's person and vehicle absent a warrant. For the reasons that follow, we affirm.

We apply the following principles upon appellate review of a ruling on a motion to suppress:

First, when a motion to suppress is heard by the trial judge, that 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 them. 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. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

Brown v. State , 293 Ga. 787, 803 (3) (b) (2), 750 S.E.2d 148 (2013) (citation and punctuation omitted). So viewed, the record shows that on May 27, 2020, Mark Sutton, a narcotics investigator with the Lumpkin County Sheriff's Office, received a tip from a confidential informant about the details of a vehicle in Dahlonega involved in drug activity. Investigator Sutton observed the vehicle in the area and followed it to a gas station. Sutton later identified the driver as Rush. Sutton then contacted Corporal Corey Morgan with the Lumpkin County Sheriff's Office K-9 unit to initiate a traffic stop of Rush's vehicle based on his suspicion that the vehicle was involved in transporting narcotics. Sutton gave Morgan a description of Rush's vehicle and the direction of travel. Sutton believed that one of the headlights on Rush's vehicle was damaged, but he advised Morgan "to get his own independent probable cause" for the stop.

At approximately 1:30 p.m., Corporal Morgan caught up with Rush's vehicle and observed that it was being driven in the rain without illuminated headlights. Morgan activated his blue lights to initiate a traffic stop. Rush's vehicle did not stop right away, and Morgan had to turn on his siren before the vehicle finally pulled over. Morgan observed the driver moving around near the center console before the vehicle came to a stop, and the driver continued to move around in the vehicle even after coming to a stop. Morgan described that such movements are potential signs of a safety risk as the driver might be trying to access or hide a weapon or other contraband. Investigator Sutton had informed Morgan about the vehicle's possible involvement in narcotics and, based on his training and experience, Morgan was aware that persons in the drug trade often carry firearms.

After making contact with Rush, who was alone in the vehicle, Corporal Morgan informed Rush that the reason for the traffic stop was due to a broken headlight. Morgan directed Rush to put his hands on the steering wheel as a safety precaution due to Rush's movement in the vehicle prior to coming to a stop. Morgan then asked Rush to exit the vehicle and conducted a pat down search to ensure that Rush did not have any weapons on his person. Morgan felt a bulge in Rush's front pants pocket, which Rush claimed was money. Upon manipulating the bulge, Morgan believed it to be methamphetamine shards because "nothing else looks or feels like methamphetamine."

Sergeant Jacob Smith of the Lumpkin County Sheriff's Office arrived on the scene to assist with the stop. Morgan asked Smith to run a check on Rush's license. While awaiting the results from dispatch, Smith initiated contact with Rush and became concerned that Rush might be under the influence of either alcohol or narcotics due to Rush's eyes being constricted, his speech pattern, and "his jerking." Approximately five minutes into the traffic stop, while Smith conducted a check of Rush's license, Morgan took his K-9 around the exterior of Rush's vehicle for a free-air sniff, and the dog returned a positive alert to the seam of the driver's door. At that point, Smith was still waiting on dispatch to confirm the validity of Rush's license. Morgan informed Rush about the positive dog alert and gave Rush the opportunity to tell him what was inside the vehicle. Rush admitted that he had a pipe and some methamphetamine in the center console of the car, and also added that he had methamphetamine in his pocket. After Morgan placed Rush under arrest, he recovered a bag of methamphetamine from Rush's pocket. Police also found a smaller amount of methamphetamine, a smoking device, and a pink tablet in the center console, as well as a loaded pistol and two sets of digital scales inside a safe in the trunk of the car. Rush admitted that the pill was oxycodone.

Based on the foregoing, a grand jury indicted Rush for trafficking methamphetamine, possession of a Schedule II controlled substance (oxycodone), possession of a firearm during the commission of a felony, and possession of drug-related objects (digital scales).

Rush filed a motion to suppress, arguing that "[a]fter illegally stopping, waylaying and detaining [Rush]," law enforcement illegally searched Rush and his vehicle absent "a warrant, probable cause, reasonable articulable suspicion, or valid consent." Rush maintained that even if the initial traffic stop was deemed valid, law enforcement unlawfully prolonged the stop, and thus, any evidence or statements gathered during the ensuing illegal search and seizure of Rush and his vehicle should be suppressed.

At the suppression hearing, the State played footage from Corporal Morgan's and Sergeant Smith's body cams, which depicted the events of the traffic stop and Rush's subsequent arrest as described above. The trial court denied the motion, finding in relevant part that the traffic stop of Rush's vehicle was supported by both reasonable articulable suspicion and probable cause, as Corporal Morgan observed Rush operating a vehicle in the rain without headlights; Morgan observed Rush "conducting movement within the vehicle" and fail to immediately heed instructions to stop the vehicle; a brief pat down of Rush caused Morgan to suspect that Rush was in possession of a bag of methamphetamine; within five minutes of the stop, a narcotics K-9 gave a positive alert on the seam of the driver's side door, which provided probable cause to search the vehicle; Rush subsequently admitted to the existence of narcotics in the vehicle; and a search incident to Rush's arrest yielded the discovery of a large amount of methamphetamine in Rush's pocket. The court concluded that based upon a totality of the circumstances, "the evidence [Rush sought] to have suppressed was lawfully seized."

At the stipulated bench trial, ¹ the State tendered a laboratory report which showed that the total weight of the methamphetamine seized from Rush's person and vehicle was 111.176 grams. The trial court found Rush guilty on all counts. The court sentenced Rush to a total term of 35 years with the first 20 years to be served in confinement and the remainder on probation. The instant appeal followed.

1. Rush argues that Corporal Morgan lacked sufficient probable cause or reasonable articulable suspicion to initiate the traffic stop of Rush's vehicle. He asserts that Morgan's only justification for pulling Rush over was an alleged headlight violation stemming from either a defective headlight or Rush's failure to turn his headlights on while driving in the rain. He maintains that the record evidence fails to indicate the precise weather conditions at the time of the stop. According to Rush, "the precise nature of the ‘deficiency’ observed by [Corporal] Morgan regarding [Rush's] headlight is inconsistent, unclear, and frequently factually incompatible with itself," and therefore, the State lacked a valid reason for the traffic stop.

The legality of a traffic stop is measured by "an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time. The validity of the stop, thus, depends on what the driver was doing and what that reasonably conveyed to the officer, not on what else the officer thought might be occurring." Rosas v. State , 276 Ga. App. 513, 515 (1) (a), 624 S.E.2d 142 (2005) (citation and punctuation omitted).

Here, Corporal Morgan testified at the suppression hearing that when he caught up with Rush's vehicle, he observed that the car was being driven in the rain without the headlights on. See OCGA § 40-8-20 (lights on vehicle required "at any time when it is raining in the driving zone"); Richardson v. State , 283 Ga. App. 89, 91, 640 S.E.2d 676 (2006) (traffic stop justified where evidence supported conclusion that dim lighting conditions required vehicle lights under OCGA § 40-8-20 ). Morgan then activated his blue lights to initiate a traffic stop. The trial court found that Morgan's testimony about the weather...