Sommese v. State

683 S.E.2d 642

299 Ga. App. 664

SOMMESE v. The STATE.

No. A09A1161.

Court of Appeals of Georgia.

August 10, 2009.

Charles D. Joyner, James H. Wall, Augusta, for appellant.

Daniel J. Porter, Dist. Atty., Stephen A. Fern, Asst. Dist. Atty., for appellee.

BERNES, Judge.

Julie Cay Sommese was convicted of possession of methamphetamine in a stipulated bench trial. She appeals, contending that the trial court erred in denying her motion to suppress the methamphetamine seized from her purse during a traffic stop. Because the traffic stop was not unreasonably prolonged and Sommese voluntarily consented to the search of her purse, we affirm.

In reviewing the grant or denial of a motion to suppress, we construe the evidence in a light most favorable to upholding the trial court's findings and judgment. When the trial court's findings are based upon conflicting evidence, we will not disturb the lower court's ruling if there is any evidence to support its findings, and we accept that court's credibility assessments unless clearly erroneous. The trial court's application of law to undisputed facts, however, is subject to de novo review.

(Punctuation and footnotes omitted.) Andrews v. State, 289 Ga.App. 679, 679-680, 658 S.E.2d 126 (2008).

So viewed, the evidence showed that while on evening patrol, an officer with the Snellville Police Department stopped at the same traffic light as the vehicle driven by Sommese. Sommese's vehicle had two additional occupants and a Texas license plate. While stopped at the traffic light, the officer noticed that the windows of Sommese's vehicle had a very dark tint. The officer also saw the front seat passenger of the vehicle reach out of the front window and pour beer out of a bottle onto the ground. Based on these observations, the officer initiated a traffic stop.

The officer approached the vehicle and explained to the occupants that he had made the stop because of the illegally dark window tint¹ and the open alcoholic beverage container in the vehicle.² The front seat passenger apologized for pouring out the beer. She stated that the beer had been consumed earlier that day, and she handed the bottle to the officer. The bottle was warm to the touch. The officer then asked the occupants for identification. Sommese provided a Texas driver's license but informed the officer that she lived in Loganville. The front seat passenger provided a Florida driver's license. The rear seat passenger informed the officer that he was from Texas.

Because the beer bottle had been warm to the touch and the front seat passenger was from out of state, the officer decided to issue a written warning to the passenger for the open container violation rather than a citation. Since the front seat passenger was from another state, the officer also decided to explain to her and the other occupants the specifics of Georgia's open container law so that they would avoid any problems in the future.

While speaking to the occupants, the officer noted that Sommese was "overly nervous." Sommese was breathing heavily, her hands were shaking, her speech was very fast, and she was continuously rubbing her face and scratching her nose as if she had recently taken a stimulant. Because Sommese's extreme nervousness made him feel uneasy, the officer returned to his patrol vehicle and called for back-up.

While in his patrol vehicle, the officer began running a computer check on the licenses and vehicle registration as well as a check for outstanding warrants and criminal histories on the occupants. The officer also began writing out a warning citation to the front seat passenger for the open container violation. While writing out the warning citation, the officer learned from his computer check that Sommese had a previous felony drug charge in Texas.

The officer returned to Sommese's vehicle and issued the front seat passenger the warning citation. Because Sommese had told the officer that she lived in Loganville but her vehicle had a Texas license plate and she had a Texas driver's license, the officer decided to question her about the length of time she had lived in Georgia. In this regard, the officer wanted to determine if Sommese was in compliance with the driver's license and vehicle registration requirements of this state.³ Before questioning Sommese, the officer directed her to step to the rear of her vehicle, and she complied.

Sommese informed the officer that she had lived in Georgia between one and two months. The officer then advised her that in addition to a warning citation for the window tint violation, he was going to issue her a warning citation for violating Georgia's license and registration requirements.

As they stood at the rear of the vehicle, the officer began writing out the warning citations to Sommese, who remained extremely nervous. While writing out the warning citations, the officer asked Sommese about her driving record and whether she had ever been arrested. Sommese claimed that she had never been arrested. The officer also asked her if she had any illegal drugs in her vehicle. Sommese averted her eyes to the ground and again said no.

At that point, the officer's back-up arrived. The officer continued writing out Sommese's warning citations. The officer asked Sommese if the back-up officer could search her vehicle for other open containers. Sommese consented. She then walked to the driver's side window of her vehicle, reiterated out loud that the search would be for "[o]pen containers, open containers, open containers," and reached inside the vehicle to zip up an open bag in her purse lying on the floorboard.

Sommese and the other two occupants were ordered to the rear of the vehicle so that the search for open containers could be conducted. While the back-up officer was conducting the search for open containers, the other officer asked Sommese why she had told him she had never been arrested, given her prior felony drug charge in Texas. Sommese admitted that she had lied about having never been arrested. The officer also informed Sommese that he had noticed her effort to seal the bag inside her purse before the open container search was conducted. The officer then asked Sommese if he could search her purse to make sure there was nothing illegal inside of it, and she consented. The officer's conversation with Sommese and request for consent to search her purse occurred while he was finishing the written warning citations.

The officer returned to Sommese's vehicle and retrieved the purse from the floorboard. His search of the purse revealed a glass pipe with white residue in it and a bag containing two grams of crystal methamphetamine. The officer called over the back-up officer, who at that point discontinued his open container search. Sommese was arrested for drug possession, after which she was given the written warnings for the window tint violation and the license and registration violations.

Sommese was charged by accusation with possession of methamphetamine, and she moved to suppress the drugs seized from her purse. She argued that the traffic stop was impermissibly prolonged and that her consent to the search of her purse was not voluntarily given. Following an evidentiary hearing in which the two officers testified to the events as set out above,⁴ the trial court denied the motion. A bench trial was conducted on stipulated facts, and the trial court found Sommese guilty. Sommese now appeals from the judgment of conviction and sentence, enumerating as error the denial of her motion to suppress.

1. Sommese first contends that her motion to suppress should have been granted because she was subjected to an unreasonably prolonged detention. She does not challenge the validity of the initial traffic stop or of her detention up to the point where the officer issued the open container warning citation to the front seat passenger. Rather, Sommese claims that the officer unreasonably prolonged the detention from that point forward because instead of immediately issuing the warning citation for the window tint violation, he (a) directed her out of the vehicle; (b) asked her multiple questions unrelated to the purpose of the traffic stop; (c) waited for back-up to arrive; and (d) sought consent to search her vehicle for open containers. Consequently, Sommese maintains that the methamphetamine seized from her purse should have been suppressed as fruit of an illegal detention. We disagree.

"The Fourth Amendment protects a person's right to be secure against unreasonable searches and seizures. The touchstone of the Fourth Amendment is reasonableness. Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances." (Citations and punctuation omitted.) State v. McMichael, 276 Ga.App. 735, 736-737(1) 624 S.E.2d 212 (2005). In order to pass constitutional muster, the investigative stop of a vehicle cannot be unreasonably prolonged beyond the time required to fulfill the purpose of the stop. Salmeron v. State, 280 Ga. 735, 736(1), 632 S.E.2d 645 (2006). Once that purpose has been fulfilled, the continued detention of the vehicle and its occupants is constitutional only if "the officer has a reasonable articulable suspicion of other illegal activity or when the valid traffic stop has de-escalated into a consensual encounter." (Citation and punctuation omitted.) Giles v. State, 284 Ga.App. 1, 3(1), 642 S.E.2d 921 (2007). Guided by these principles, we conclude that the responding officer did not unreasonably prolong the traffic stop of Sommese's vehicle beyond the time required to fulfill the purpose of the stop.

(a) As an initial matter, the officer did not unreasonably expand the scope or duration of the traffic stop by ordering Sommese from her vehicle after issuing the open container warning citation to the front seat passenger. "[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the...