State v. Bibbins

271 Ga. App. 90

609 S.E.2d 362

271 Ga.App. 90

The STATE v. BIBBINS.

No. A04A1305.

Court of Appeals of Georgia.

December 1, 2004.

Reconsideration Denied December 16, 2004.

William T. McBroom, District Attorney, Thomas J. Ison, Kr., Assistant District Attorney, for appellant.

Virgil Brown, Eric Hearn, Ronald Ellington, Virgil L. Brown & Associates, Square Zebulon, for appellee.

ELDRIDGE, Judge.

The State appeals from an order granting Stephen Ralph Bibbins' motion to suppress drugs found pursuant to an alleged consent search conducted during the course of a valid traffic stop. The trial court did not make a factual finding about whether consent was actually obtained. Instead, the court determined that the detaining officer "exceeded the scope" of the traffic stop in asking for consent to search for drugs; thus, Bibbins' consent, if any, was the product of an "illegal detention." The following stipulated facts are necessary for proper resolution of this appeal.

While traveling on Interstate 75 on June 5, 2003, Special Agent Alex Bauch of the Griffin-Spalding Narcotics Task Force stopped a truck driven by Bibbins after the truck crossed the fog line. Bauch approached the vehicle, obtained Bibbins' driver's license, noted that Bibbins had a Florida address, and informed him that he had been stopped for crossing the fog line. Bauch then ran Bibbins' license information through the police computer and discovered no problems. He returned to Bibbins' truck and, just before writing a citation for failure to maintain lane, stated, "Do you mind if I ask you a question?" When Bibbins responded, "Sure," Bauch told him that Spalding County had a problem with "people driving through with large amounts of drugs, marijuana, and guns, and currency related to the drug trade." Bauch then asked Bibbins whether he could search Bibbins' vehicle for contraband. At that point, Bauch was still holding Bibbins' license in preparation for writing out a traffic ticket. Based upon Bibbins' reply, a search was conducted and approximately four pounds of marijuana was discovered. The officer then arrested Bibbins and cited him for the drug possession and the lane violation. Held:

By this appeal, we are squarely presented with the opportunity to address an issue that — as the transcript of the motion to suppress hearing amply demonstrates — has caused considerable consternation in law enforcement circles, as well as with bench and bar, i.e., whether asking for consent to search for drugs during the course of a brief, ongoing traffic stop can, in and of itself, be a Fourth Amendment violation so as to make a valid detention "illegal," thereby rendering any consent to search the product of such illegal detention. This Court welcomes the chance to consider this issue, since the confusion that can be generated by the application of Fourth Amendment legal principles in the "real world" has not gone unnoticed. We who parent wisdom through written opinion also recognize that "[m]ore wisdom is latent in things as they are than in all the words men use."¹ So, a pragmatic deliberation encompassing the views of other jurisdictions on this issue is warranted and due.

1. In the field, even when officers have no basis for suspecting a person, they may approach and request consent to search for drugs.² This is a "first tier" encounter, and the request to search, itself, does not turn the encounter into an illegal detention: "it is clear that merely requesting consent for a search is not a seizure and does not require articulable suspicion."³ So, too, an officer may detain a citizen when a traffic violation has been committed in his presence; this detention is a legitimate "second tier" encounter. However, in this instance, the dissent would find that an officer may not request consent to search for drugs; that the request, itself, turns the otherwise legitimate detention into a Fourth Amendment violation.

What an anomalous result. Approaching a person to request consent to search causes him to stop for at least the time needed to hear the request and respond, which delay could be called a "detention," though it is not. Yet the same request asked of someone already lawfully detained causes no undue delay, but is considered by the dissent to create an unlawful "detention." If a request to search does not turn a first tier encounter into an invalid detention, the same request does not turn a second tier encounter into an invalid detention. After all, a refusal is an authorized result in both instances. Rather, "police questioning, by itself, is unlikely to result in a Fourth Amendment violation."⁴ Indeed,

a police officer's questioning, even on a subject unrelated to the purpose of the stop, is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure.... [T]he issue regarding unrelated questions concerns not the content of the questions, but their impact on the duration of the stop.... Therefore, only unrelated questions which unreasonably prolong the detention are unlawful; detention, not questioning, is the evil at which Terry's prohibition is aimed.⁵

In State v. Gibbons,⁶ this Court considered a Terry detention in which an officer instituted a valid traffic stop for a seat belt violation, but he performed no act necessary to discharge the duties that he had incurred by virtue of the traffic stop: he did not conduct a license check, vehicle check, or insurance check; and he did not make any inquiry relating to the traffic violation for which the stop was made. Nor did he ever indicate that the detainee would be cited for a seat belt violation. In fact, the officer admitted that he obtained the detainee's driver's license, retained it, and thereafter asked numerous, wide-ranging questions simply because he had "an uneasy feeling" about the detainee.⁷ Under the specific facts of Gibbons, the detention following the initial stop of the vehicle appeared to be a pretext to furnish the officer solely with a forum to ask questions, not to pursue the ends of a legitimate traffic stop. Consequently, we upheld the trial court's grant of the motion to suppress. Central to our decision, however, was the unreasonable prolongation of the duration of the traffic stop solely in order to ask questions: "It [was] this continued detention that [made] the questioning and request to search without reasonable suspicion of criminal activity impermissible."⁸ This distinction must not be lost: the unreasonable prolongation of the duration of the seizure — not the content of the questions — invalidated the stop.⁹

It must also be understood that the duration of a traffic stop is not synonymous with its "scope," and for several years now, this has been a gray area. The issue of the "scope" of a search and seizure was first articulated in Terry, itself, where it was held that a search and seizure must be "reasonably related in scope to the circumstances which justified the interference in the first place";¹⁰ to that end, a traffic detention "must be temporary and last no longer than is necessary to effectuate the purpose of the stop."¹¹ A simplistic interpretation of the term "purpose" might propel the conclusion that it refers to only the specific traffic offense that inspired the pull-over, and thus, any action or inquiry unrelated to that specific traffic offense is impermissible. But to accept this interpretation would be to deny the realities of a traffic stop, which has as its "purpose" the enforcement of traffic laws for highway public safety,¹² and in which law enforcement has never been restricted simply to writing out a ticket and ending the encounter. Instead, an officer's duties relative to any traffic detention have always included a computerized check of license, registration, vehicle identification number (VIN), and identification, regardless of the specific violation involved. "The foremost method of enforcing traffic and vehicle safety regulations, it must be recalled, is acting upon observed violations. Vehicle stops for traffic violations occur countless times each day; and on these occasions, licenses and registration papers are subject to inspection and drivers without them will be ascertained."¹³ Certainly, "[s]uch checks serve a valid traffic and general law enforcement purpose as they warn the responding officer of any known dangers about the person stopped and the status of the car. They are also closely related to the purpose for the initial detention — traffic safety and security."¹⁴ During the course of an ongoing traffic stop where these duties are being diligently pursued, this Court has long allowed law enforcement to ask brief, general investigative questions such as those related to travel plans, itinerary, and ownership of the vehicle.¹⁵ Comparable questions have been approved in other jurisdictions as relating to the scope of any traffic investigation.¹⁶ And such questions asked during the course of a traffic violation investigation do not unreasonably prolong the duration of the stop. As a practical matter, it takes time to check a detainee's license and registration and to complete a citation or warning, whether brief general investigative questions are asked or not; as long as the questions do not unreasonably delay the accomplishment of these activities, the stop has not been prolonged.¹⁷

Also, under the same circumstances, the highest court in this nation has recognized the authority of an officer to ask a drug-related question during the course of a traffic stop, e.g., "Are you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?"¹⁸ Such an inquiry is reasonably related to legitimate highway public safety concerns "in light of the problem of interstate drug traffic."¹⁹ It is minimally intrusive and does not unreasonably prolong an ongoing detention.²⁰ So, too, during the course of an ongoing traffic investigation, a simple...