Watts v. State

334 Ga.App. 770

780 S.E.2d 431

WATTS

v.The STATE.

No. A15A0796.

Court of Appeals of Georgia.

Nov. 20, 2015.

Lee William Fitzpatrick, Kennesaw, for Appellant.

Cliff Head, Wallace W. Rogers Jr., Shannon Glover Wallace, for Appellee.

BRANCH, Judge.

Following a bench trial at which he stipulated to both the facts and the sufficiency of the evidence, Monquezias Watts was convicted of a single count each of possession of marijuana with intent to distribute, possession of a firearm during the commission of a felony, and theft by receiving. The trial court sentenced Watts to eight years, but probated the sentence. After Watts failed to comply with conditions of his probation, the trial court revoked his probation and remanded him to custody. Following the revocation of his probation, Watts sought and was denied an appeal bond. Watts now appeals his conviction, the revocation of his probation, and the denial of his appeal bond. With respect to his conviction, Watts claims that the trial court erred in denying his motion to suppress evidence discovered by police after they illegally detained Watts following a traffic stop. As to the revocation of his probation, Watts argues that the trial court erred when it held that his notice of appeal did not act as a supersedeas, preventing the enforcement of his probationary conditions. Finally, Watts contends that the trial court abused its discretion in denying his motion for an appellate bond.

For reasons explained more fully below, we find that the trial court erred in concluding that the free-air sniff which resulted in the seizure of drugs and contraband did not violate the Fourth Amendment because it occurred during a de minimis extension of the traffic stop. Accordingly, the court erred in denying Watts's motion to suppress. We therefore vacate both the order denying the motion to suppress and the judgment of conviction and remand the case for further proceedings. We further find that Watts's second and third claims of errors are based on orders that were entered after Watts filed his notice of appeal from the judgment of conviction. Given this fact, and given that Watts never filed a notice of appeal as to the orders revoking his probation and denying his appellate bond, we lack jurisdiction to address Watts's second and third claims of error.

At a hearing on a motion to suppress, the trial judge sits as the trier of fact. On appeal from the grant or denial of such a motion, therefore, this Court must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court's findings as to disputed facts and credibility must be adopted unless clearly erroneous. However, we owe no deference to the trial court's conclusions of law and are instead free to apply anew the legal principles to the facts.

Bodiford v. State, 328 Ga.App. 258, 258, 761 S.E.2d 818 (2014) (citations and punctuation omitted). See also Jones v. State, 291 Ga. 35, 36–37(1), 727 S.E.2d 456 (2012) (where "the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court's application of the law to the undisputed facts").

The relevant facts in this case are undisputed. At approximately 1:30 a.m. on June 16, 2012, Sergeant Wayne Franco of the Woodstock Police Department initiated a traffic stop of a vehicle driven by Tremayne Gay and in which Watts, Chasmine Johnson, and Alma Rico were passengers. Two video recordings of this stop and the subsequent police investigation, including the police search of Gay's truck, were introduced into evidence and shown at the motion to suppress hearing.

Franco initiated the stop after observing that the license plate on Gay's truck was covered by a piece of tinted plastic, in violation of OCGA § 40–2–11. Franco testified that he became suspicious of the individuals in the truck because Gay continued to drive the truck for approximately two blocks before pulling to the side of the road. After viewing the video recorded by his patrol-car camera, however, Franco acknowledged that Gay had pulled over at the first opportunity he had to do so, without having to make a left hand turn across traffic. Additionally, the video recording of the stop shows that Gay pulled to the side of the road and came to a stop approximately 33 seconds after Franco activated the blue lights on his patrol car.

When Franco approached Gay's truck, both Gay and Watts, who was the front-seat passenger, were smoking cigars that appeared to be freshly-lit. Franco explained that, in his experience, people in possession of drugs will often "chain smoke" either cigarettes or cigars to mask the odor of any contraband. Franco further testified that Gay appeared to have what he described as "a little cotton mouth" and the eyes of both men appeared bloodshot. Based on these observations, Franco believed there was a possibility that both men were "under the influence of marijuana." Franco acknowledged, however, that he saw no signs that Gay's driving was impaired or that Watts was impaired by either drugs or alcohol. Additionally, no investigation was conducted into whether Gay was under the influence of any controlled substance. While some investigation may have been made into whether Watts was impaired, the State provided no evidence at either the motion to suppress hearing or at trial showing that Watts was under the influence of either alcohol or drugs at the time of the traffic stop. And as discussed below, the video of the traffic stop shows that police were prepared to allow Watts to drive Gay's car from the scene.

Immediately after making contact with Gay, Franco explained to him the reason for the stop and asked both Gay and Watts to provide Franco with their driver's licenses. The men did so, and Franco returned to his patrol car and relayed the license information to dispatch. Less than one minute later, dispatch reported that Gay's license had been revoked, that Watts's license was valid, and that neither man had any outstanding warrants. After receiving this information, Franco remained in his patrol car for approximately two and one-half minutes, awaiting the arrival of a second officer, Eric Maddox. Approximately one minute after Maddox's arrival and approximately seven and one-half minutes after the traffic stop began, police arrested Gay for driving without a license and also charged him with a misdemeanor tag violation. Following his arrest, police questioned Gay about his passengers and where they lived, as well as about the contents of Gay's car. During this process, Maddox and/or Franco twice asked Gay whether he would consent for Watts to drive Gay's truck from the scene; each time the officers asked this question, they informed Gay that Watt's license had returned as valid. Both times he was asked, Gay responded that Watts had his permission to drive the truck from the scene.

After completing the arrest process for Gay, which included questioning him, inventorying his pockets, handcuffing him, and placing him in the back of Maddox's patrol car for transport, Franco returned to the truck and its three remaining passengers. Rather than returning Watts's license to him and informing him he had permission to drive the truck, however, Franco asked Watts to exit the vehicle. Watts complied with this request, exited the vehicle with his hands in front of him, and consented to a search of his person. Franco then asked Watts to accompany him, and the two men stood next to a patrol car while Franco questioned Watts about his relationship to Gay, how well Watts knew the female passengers, what activities the group had engaged in that night, and the contents of the truck. According to Franco, Watts appeared nervous and when questioned, Watts told the officer that Gay was a friend of the family. Gay, however, told the officer that Watts was his stepson.¹

Following his interview of Watts, Franco instructed Watts to remain next to the patrol car, and he returned to the truck and told the women they needed to exit the vehicle because the police needed to search it for alcohol.² Franco also instructed the women to leave their personal belongings in the truck and asked for and received permission to search those belongings.³

After having the women exit the vehicle, and approximately 14 minutes into the traffic stop and between six and seven minutes after Gay's arrest, Franco asked the women for identification. When both women replied they had no identification with them, Maddox asked each woman for the correct spelling of her name and her date of birth. Each of the women provided that information, with Johnson explaining that she had a South Carolina driver's license and Rico stating that she lived in South Carolina. Franco provided this information to dispatch and asked the dispatcher to run a check in both Georgia and South Carolina. Approximately ten seconds later, dispatch responded that Johnson had a valid South Carolina driver's license and that she had no outstanding warrants, but that there was "no return" on Rico. In other words, the check indicated that Rico, who was 18 years-old at the time, had no driver's license, no state-issued identification, no criminal record, and no outstanding warrants. Police then proceeded to question Rico about her lack of identification. During questioning, Rico stated that she had either a passport or a visa in her purse. Rico again consented to the search of her purse and told police in which area of the bag her travel documents could be found. When police found these documents, the name and date of birth thereon matched the information provided earlier by Rico, and which showed that Rico had no outstanding warrants. At that point, police were satisfied that they knew Rico's identity and legal status.

While Franco was running the identity checks of Johnson and Rico, Maddox read Gay his Miranda rights and then asked Gay for permission to search his truck....