*1 lawless, if law-abiding unjustifiably we are going dis- by mantle it brick brick.
The trial court’s determination that a Terry violation resulted the officer asked unrelated questions when to the seat belt violation error as a matter of To the law. extent our decision in Smith v. determination, State trial court’s erroneous supports it should be judgment overruled. The should be below reversed.
2. The containing pursu- bottle residue cocaine was found to a ant consensual search. No factual were findings made regard trial court with this issue. Accordingly, this case should be remanded for further findings of fact as to the with issue consent a right of appeal.38 further
I am authorized Judge to state that Mikell joins this dissent.
Decided March T Joseph Campbell, Smith, District Attorney, Donald S. Assis- tant Attorney, District for appellant.
White, Watkins, Choate, Choate & Jay &Cook Connelly, Bobby Cook, B. Abernathy, Lee Rex for appellees. THE
A00A1912. BERRY v. STATE.
Barnes, Judge.
Pursuant to the of an grant interlocutory appeal, Henry Lorenzo appeals superior court’s denial of his motion to suppress evidence from seized after a car traffic stop. He contends the trial court erred by holding that did I, I, search not violate Art. Sec. (1983) XIII Par. of the Georgia Constitution or OCGA 17-5-1. § The entire incident was a videotaped car, camera the police and the video shown to the The court. video and the officer’s tes- timony show traveling alone at about 10:00 a.m. when he was stopped by City on 1-20 of Conyers police officer for driving a dealer’s drive-out license tag. officer was a narcotics officer who apparently was on routine with his patrol drug dog and his partner. The video shows that two police officers the car on approached both sides and looked in the car. (2) See, e.g., (1987). Bassford, is a tran- inaudible, following comments are some
Although videotape: on the as shown script a.m.]
[10:05:23 I see driver’s May your doing? Hey, you how are OFFICER: here out Berry, you step Mr. please? insurance license and *2 standing like with I don’t you. Iwhy stopped I’ll explain you you is that I stopped The reason to that traffic. my back had the car? you have long on it. How have a don’t son in Atlanta. my went see it and to Just rented BERRY: rented it. You OFFICER: sir. Yes
BERRY: Where headed to? you OFFICER: — something IDid do [inaudible] I’m to going BERRY: something? wrong or of times tag. a A lot don’t have you It’s because
OFFICER: nothing I mean it’s way. vehicles this a lot of stolen we get off, a car lot one togo to and take this somebody up come it. take off with it on there and and put coming from? you Where
OFFICER: son. my Atlanta. See
BERRY: your See son.
OFFICER: off, did it? you All didn’t scare that rain OFFICER: No, it didn’t. BERRY: you stay? How did long
OFFICER: long. I stay didn’t long, Not BERRY: A week? day?A Two weeks? OFFICER: long. Not
BERRY: long?
OFFICER: Not long.
BERRY: Not — license Berry’s driver’s calls in a.m. Officer [10:06:50 001958331.] from Carolina male South black information: own? regular your You a car of OFFICER: Uh, yes sir. BERRY: What is it?
OFFICER: a pickup. Just
BERRY: shape in good It wasn’t got —. pickup You OFFICER: here? drive down head.] [Nodded
BERRY: license to your check on quick run a I’m going OFFICER: right. is all everything make sure at in Atlanta? your son live does
OFFICER: Wherebouts a.m.] [10:07:38 uh, Uh, Decatur.
BERRY:
[10:07:43 a.m.]
OFFICER: Decatur. Everything right; sick all he wasn’t now was he? OFFICER: always gotta I on him. Well, BERRY: check OFFICER: How old he? 22.
BERRY:
OFFICER: going to
OFFICER: He school down there? working. No,
BERRY: he’s [Officer Working. paperwork.] OFFICER: looks They only charged you 80 rent OFFICER: bucks to it? $75, that’s tax. BERRY: That’s tax
OFFICER: was it? Yes,
BERRY: officer. That ain’t bad.
OFFICER: OFFICER: you When did come down? Early morning.
BERRY: this Early morning?
OFFICER: just trying waiting I’m kill OFFICER: time while we are [inaudible]. stay good boy? OFFICER: Is he a or —? Does he trouble lot *3 why got Well, BERRY: that’s I to check on him. gotta on
OFFICER: You check him. He never been in —. job right got He children, BERRY: don’t have a now.You you got any children, how is. know it gotta I
OFFICER: two and a half month old. getting yet. You ain’t BERRY: OFFICER: there yet. I ain’t there yet. You ain’t
BERRY: there you right, any guns All OFFICER: don’t have or knives or weapons anything? you right pat or You mind if don’t I down my safety? quick put your up. You don’t have to hands You’refine. Berry.
[The pats a.m., officer down At 10:09:22 the officer apparently copies the front of walks to the car down the doing this, vehicle identification number. While he is other officer comes from the car front and stands Berry. copying VIN, After the first officer walks around looking the car in in the windows. The officer calls the VIN questioning.] at 10:09:57 a.m. and resumes Henry, you OFFICER: Mr. how often travel back and forth? my BERRY: Not much. Whenever son trouble.
OFFICER: Whenever he’s in trouble. [inaudible], BERRY: I a Yeah. have sister that lives but my I came to see son. this time your son. You came to see
OFFICER: OFFICER: right big here interstate, runs Um, I-20’s a peo- big problem City Conyers. got through with We guns, drugs, ple like narcotics, bodies, and stuff dead with your illegal anything vehicle? that. You don’t BERRY: No. your quick you search of mind if I take a
OFFICER: Would vehicle? my No, not vehicle.
BERRY: you. So, mean, I that’s Well, I to mean it’s rented OFFICER: asking you. why I’m you anything, really know? did Not no. I haven’t
BERRY: saying I or OFFICER: You can can’t? up you, you I no. know, but said Well, don’t, I it’s
BERRY: sayI no. right your you say OK, no, That’s fine. That’s
OFFICER: OK. say no, OK? OK. BERRY: a.m.]
[10:11:10 going Berry, right, Henry, Mr. what I’m All Mr. OFFICER: step going you here with this is, I’m to ask back to do my going I’m canine in car. officer. I have a narcotics-trained to walk him around your quick hit, if real and he doesn’t your way. going you to send OK. we’re [10:11:20 a.m.] dog places car, the officer on the
After the alerted at several bag opened plastic in the he had seen earlier the car and searched eight pounds compartment. passenger of mari- It contained about Georgia charged juana. violation was arrested with marijuana possession intent to Act: Controlled Substances distribute. Although contract rental testified that the officer later videotape appeared that he not show altered, does to have been *4 Berry point, questioned however, the officer some about it. At ever (the agency had made rental the contract was valid confirmed that alterations) officer testified car was not stolen. The the he saw bag the garbage large plain view, but did see a black no contraband marijuana. passenger’s not smell seat. He did behind marijuana suppress Subsequently, found in moved to Berry sought motion, car, the trial court denied the rented interlocutory appeal authority bring from that this and obtained order.
The trial court’s order states:
Henry Lorenzo stopped while on driving Inter- state 20 a City Conyers Officer, Police Ken Morgan. (K-9) Officer unit. Morgan operated canine The defend- ant was stopped driving car with a dealer drive out paper tag. After the stop, Officer Morgan requested his insurance, driver’s license and including information on the car. Defendant produced his license and the rental contract. It should be noted that the rental contract on the car appeared to have been altered the use aof photocopy machine. While the Officer was a check on running items, he engaged Defendant in a conversation. It did not appear to be a traditional rental contract form. The dis- cussion between the officer and amiable; Defendant was however, the Defendant’s answers were contradictory. The entire stop was videotaped played for the Court during hearing the Defendant’s Motion Suppress. While the license and VIN number of the vehicle were con- being firmed, the Officer requested to search the Defendant’s vehi- cle. The Defendant refused to give consent. After refusal, the Officer used dog to conduct a “free air search” around the vehicle. The dog alerted and a search ensued whereby contraband was found in the back floor- board of the Defendant’s rental vehicle. The officer lawfully stopped the vehicle driven by the Defendant because the vehicle did not have a state-issued tag. While the inquiry of the Defendant’s itinerary was ongoing, the Officer noticed the nervousness of the Defendant. According Officer, to the 1-20 is increasingly becoming transportation lane for ille- gal drugs and narcotics. This case is distinguishable from 635)] Smith v. (1995) [ because the Officer did not conduct the “free air search” based solely on a Furthermore, hunch. the inquiry did not relate to a drug inquiry but was simply about the Defend- ant’s plans. travel The questions were not unconstitutionally intrusive when against balanced danger drug running on the interstate. An officer must have reasonable suspicion of criminal conduct before conducting additional questioning and searching a vehicle once a normal traffic stop has ended and the officer has told motorists they are free go. Sim- [(479 mons v. 123)] 223 Ga. App. 781, (1996). The traffic stop was ongoing in this matter and the Defendant had not been given permission to leave. The investigation was appropriate which gave rise to meet *5 Jorgensen suspicion Ga. State, standard. reasonable App. 440)] (1993). [(428 Therefore, 545, 546 hereby Suppress is denied. Motion to Defendant’s reviewing must determine decision “we 1. In trial court’s justified [Berry] pulling at its over was action in whether the officer’s reasonably scope inception, in related and whether the detention justified in the first the interference to the circumstances which place.” omitted.) (Citation supra, punctuation Smith v. and App. at 454. Ga. guiding principles Supreme three on a motion to
2. Our Court has established suppress: reviewing guide a trial court’s order us judge, suppress heard the trial First, when a motion to is judge judge hears the facts. The trial sits as the trier of upon conflicting findings evidence evidence, his and based jury analogous should not be dis- to the verdict of a and are any sup- by reviewing if evidence to court there turbed port regard ques- Second, the trial decision with it. court’s clearly credibility accepted unless tions of fact and must be reviewing Third, must the evi- court construe erroneous. dence most favorably upholding of the trial court’s to the findings judgment. and (Citations emphasis original.) punctuation omitted; Tate v. Berry instance, In this 53, 54 testimony testify, no witness contradicted
did not other the officer’s Yet, exist conflicts the evidence because officer. always consistent with of the events are not characterizations events as shown on the videotape. however, court, either The trial To not to address them. or elected did not note these inconsistencies the extent mony rely findings upon testi- fact the officer’s the trial court’s objective events recorded on the inconsistent with the which is Lyons clearly videotape, State, 244 See we find them erroneous. (facts (2000) videotape discernible in dispute). not in testimony significant discrepancy the officer’s
A exists between tag investigation completed when of the drive-out his that he had not he conducted the search with dog his on the video- statement dog go tape checked his car. free to after would be stop was autho- the traffic initial consideration is whether 3. Our Berry was found, that shows, and the trial court rized. The evidence tag stopped The evidence also on the car. he had a drive-out the vehi- with enforcement of not connected that the shows cle stopped registration that he Instead, officer testified laws. investigate merely whether the car was stolen because he did not have a state-issued on the car. The said, officer “a lot of get way. nothing times we a lot of stolen vehicles this It’s for some- body up go put to come off, and take this one to a car lot and it on there and take off with it.” impermissible stop.
This is an
basis for a traffic
If the officer’s
rationale
traffic
investigative
for this
were sufficient to authorize an
stop,
high-
or all motor vehicles on an interstate
way
they
transport
would be authorized because
are often used to
drugs. Our law is more restrictive than
Instead,
that.
the critical
*6
validity
stop
issue to
par-
of a traffic
is whether the officer had “a
objective
suspecting
particular person
ticularized and
basis for
(Punctuation omitted.)
stopped
activity. [Cit.]”
of criminal
Postell v.
(443
628) (1994).
Ga.,
State
249,
264 Ga.
250
SE2d
“What is
police
agent
demanded of the
officer, as the
state,
of the
is a founded
suspicion,
necessary
some
basis from which the court can determine
(Citation
arbitrary
harassing.”
that
punctuation
the detention was not
or
and
omitted.)
(451
App.
Fowler,
215
524,
525
124) (1994).
SE2d
Although
may
investigative stop
an officer
conduct a brief
(see
(99
a vehicle
Delaware Prouse,
v.
(Emphasis supplied.) (2) (443 State, Vansant v. 264 Ga. SE2d “particularized objective Here, the officer had no basis for suspecting [Berry] activity.” of criminal Instead, the officer had a tag might be car with a or hunch that mere inclination circumstances, authorized the officer was not these stolen. Under denying Berry. pull Therefore, trial court erred over suppress on this basis. motion App. State, 190 Ga. that Watson v. To the extent 817) pos- (1989), a traffic read to authorize can be implicated tag might sibility theft, it is dis- in car be that a drive-out approved overruled. authorized, we had been if the initial addition, In even dog Berry’s to conduct the search further detention
find that supra, App. At the hear- State, 216 Ga. at 454. reasonable. Smith ing, Berry’s for the search were: that the reasons the officer testified working uncertainty or his son was whether nervousness, his not, the about driving contract, car, rental the rental fact that he was ques- answering Berry’s looking some interstate before down the Decatur, lived in that his son tions, plastic garbage failure to remember long trip
bag backseat, and from South in the stay only to a few hours. Carolina above, we are satisfied the evidence discussed
From Migliore 240 Ga. v. State of Ga., decisions case is controlled our (1999); App. Blair, 239 Ga. State supra, 781; and Simmons v. supra, found searches 453. These cases Smith v. circumstances. under almost identical unreasonable videotape plainly to con- when the officer decided shows that *7 investigation dog, of his he could leave had abandoned with his he duct the search Berry tag, after informed that and he way dog dog was in no Since the search around the car. the walked tag, any problem have officer must license the with the connected to drugs. Berry transporting suspicion Sim- that had a reasonable App. supra, the trial find that Ga. at 782. We State, 223 mons v. suspicion had such reasonable that the officer court’s determination clearly erroneous. is also Berry relied on showed of the reasons the officer
None drugs. nervous, might possession Further, if were even of be by police, stopped the when would not be as if most citizens drug investigate suspicion “[r]easonable ity illicit activ- and for to detain Migliore Ga., v. State . . .” arise from nervousness. does not of App. 240 Ga. at 786. suspicion criminal con- of An must have reasonable officer searching questioning conducting and additional duct before ended and the officer traffic has once a normal a vehicle go. they [the] rea- To meet the are free to motorists has told during investigation suspicion standard, an officer’s sonable 882 justified by specific,
a sufficient to facts traffic must be articulable
give suspicion of rise to reasonable criminal suspicion Although conduct. this need not meet the standard probable caprice cause, it must be more than mere or a or an hunch inclination.
(Citations omitted.) punctuation App. State, and Parker v. 233 Ga. (1) 774) (504 (1998). 616, 617-618 SE2d specific supporting
In the absence of facts a reason- articulable suspicion contrary conclude, criminal conduct, able we must to the holding, dog trial court’s that the officer’s search of the automobile merely drugs might “hunch” based his be found in the bag garbage supra, App. Blair, he saw in the car. State 239 at v. Ga. specifically Because trial court noted that officer’s “in quiry drug inquiry simply [Berry’s] did not relate ato but was about plans,” obliged point questions by by travel the officer are officers in we are out that the asked
part parcel questioning routinely done stops. questioning, course of these traffic Without such rarely stop, which if is ever directed toward the reason initial testifying the officers would tent or evasive no basis for later about inconsis responses, discrepancies plans, in the travel varia or unwar by responses passengers, tions between the ranted the driver and e.g., supra, App. Blair, See, nervousness. Ga. (conflicting nervousness); explanations Hall, v. State 235 Ga. 701) (1998) (inconsistent App. responses); 412, SE2d Round (inconsistencies (1994) App. tree regarding ness). v. purpose trip increasing and duration of nervous drug responses
Indeed, it is the rare traffic case in which passenger seemingly ques or driver an officer’s innocuous upon justify tions are relied officer later a search of the vehicle. illegally
Because officer detained he so that could con- dog, distinguished duct a search with case from Pitts (1996); State, 221 Ga. State Ga. v. 229) Montford, Roundtree supra, and other cases that found free air searches to be authorized. during investigatory stop
If articulable an officer, without an *8 proceeds
suspicion, questions to ask unrelated to stop, beyond permissi- goes the reason for the the officer the investigation, scope of ble the car driver its and the further detention of permitted by Terry that exceeds v. Ohio and progeny. give exclusionary rule, To deterrent effect to the
883 an exces- through evidence obtained suppress a court must investigation. detention and sive (1) (530 omitted.)
(Footnotes 650, 242 652 v. Almond 750) (2000). reversed trial court must be Accordingly, judgment grant with direction to remanded to the trial court the case and motion to suppress. Blackburn, J., concurs. C. reversed with direction. Judgment Ruf- J.,P. JJ., Pope, concur specially. concur and fin, Phipps, Miller and J., Smith, J., concur J., Johnson, J., Ellington, P. and Andrews, P. P. Mikell, JJ., and dissent. Eldridge concur specially. in Division 3 and concurring Judge, specially. Ruffin, I write elabo separately
I with the majority opinion. concur (1) should be revisited and views of Watson v. State1 my why rate on (2) the officer’s overruled, analysis investiga the dissent’s why and United States is, as defined inquiry tion is flawed. The 2 Ohio, in “whether the officer’s action Terry Court Supreme in related reasonably it was inception, at its and whether justified in the the interference justified to the circumstances which scope first place.” justified in this case and Watson
1. Were the officers’ actions inception? at their to the facts facts in Watson are identical
The relevant stop of There, here, investigative an officer a brief case. as conducted drive-out displayed that the vehicle noticing an automobile after based case, Watson, justified the officer In this as tags. are stolen.3 tags many that cars with experience upon manifestation “objective that this constituted an Watson, In we found activity” in criminal engaged stopped may that be persons was authorized.4 therefore concluded begin inquiry in this case their and dissent majority Both implicate such stops It ground. undisputed common unreasonable searches against Amendment proscription Fourth sup- was not that because the detention agree seizures.5 We also cause, “justified by spe- must have been by probable ported infer- with rational which, together facts taken cific and articulable 1 817) (1989). App. 696 889) (1968). Sharpe, 1868, 1, See also United States v. SC 20 LE2d 392 U. S. 1568, 84 LE2d U. S. 675 SC 3 Watson, supra, omitted.) (Citations punctuation Id. at 696-697. Prouse, LE2d SC 440 U. S. See Delaware *9 reasonably [the] facts,
enees from those warrant intrusion.”6 here, The facts in Watson, did not warrant such intrusion. videotape presence in this case shows that it was mere tag Berry’s coupled experience car, with the officer’s that tags appear precipitated “a lot of times” these vehicles, on stolen stop. quick Thus, the license “to make sure the officer decided to “run a check” on everything alright,” [was] and he called in the (VTN) vehicle identification number on the car.7 There is no evidence of record which indicates whether the department policy stopping in officer cars this case and his have a all displaying temporary tags they merely spot or whether check they such cars to determine whether are stolen. Both scenarios are troubling. Assuming many stops question the officer cars, all such I how
cars he must to find one stolen car. Aside from the officer’s temporary tags appear statement that on stolen times,” cars “a lot of indicating there is no evidence the rate of However, incidence. com- percentage mon sense dictates that the of stolen cars on the road dis- playing temporary tags very is small and that the number of vehicles displaying temporary tags stopped which will be in order to find one comparison, very large.8 stolen vehicle be, will in Under these cir- prevention marginal cumstances, the contribution to crime will be best.9 presented
The second scenario above, that the officer and his department merely spot displaying temporary tags check cars they equally disturbing. determine whether are stolen, is There is nothing indicating stop, how the officer would decide which cars to Supreme against and the United States Court has counseled “grave danger” presented by “[t]his and “evil” kind of standardless and unconstrained discretion.”10 Although dispute legitimate I do not that states have a interest preventing in justify theft, that alone is insufficient to the intru- “[T]he permissibility particular sion at issue. of a law enforcement
practice judged by balancing is its intrusion on the individual’s against promotion legitimate Fourth gov- Amendment interests its hypothesis ernmental interests.”11The at work under both scenarios presented “stopping apparently [compliant] above is that is drivers 6 (Punctuation omitted.) 553) (1999) McSwain v. 21). (quoting Terry, supra, 392 U. S. at course, investigation Of beyond the officer’s went far this documentation check. I address the issues special raised his other conduct in Division 2 of this concurrence. Prouse, supra, See (considering 440 U. S. at marginal 659-660 stop contribution of ping driver). only all drivers to find one unlicensed 9 See id. 10Id. at 661-662. 11Id. at 653-654. danger presented necessary only some drivers is not because the hypothesis stop.”12 did not survive That at the time of observable balancing Supreme test Delaware Court’s United States why here. it should survive I can discern no reason Prouse,13 and impermissib previously held that such has Indeed, this Court jurisdictions my did not several research of cases from le,14 and single upheld under the circumstances.15 court which reveal a agree majority should reasons, I that Watson these with For Presiding Judge Pope agree Burtts v. be overruled disagree that the I with the dissent be overruled.17 State16 should Berry. stopping justified not satisfied Probable cause is officer was pry. by policeman’s proclivity to reasonably related in the officers’ actions this case
2. Were
*10
justified
scope
in
the interference
the
the circumstances which
to
majority
nonnegotiable
place?
The dis-
answers with a
“no.”
first
“yes.”
equal passion responds
a
For reasons
sent, with
with
dubious
I
door of doubt with the dissent.
follow,
which
cannot enter that
jus-
my
light
1 that the
was not
In
conclusion Division
usually
considering
inception,
dispense
I would
tified at its
investigation
impermissibly
scope
the
of the officers’
whether
broad.
has misconstrued
However, because I believe the dissent
overruling
progeny,
Terry
it recommends
Smith
and its
necessary
it
comment on these matters.
State,18I believe
is
v.
constitutionality
Terry,
of an investi-
In
the Court addressed the
scope
particular
gative stop
recognized
intrusion,
of the
that “the
exigencies
[is]
light
in the
case,
a central element
of all the
of the
12
661.
Id. at
13
id.
See
14
(494
576) (1997).
Aguirre,
SE2d
v.
736
See State
15
(4th
2000);
Butler,
Wilson,
See,
343 S.C.
e.g.,
F3d 720
Cir.
State
United States v.
205
(495
475)
Childs,
2000);
State
(App.
scope ‘strictly justified of the search must be tied to and the cir cumstances which rendered its Thus, initiation permissible.”20 inquiry justi Court framed the as “whether the officer’s action was inception, reasonably scope fied at its and whether it was related in justified to the circumstances which the interference in the first place.”21 years Terry, Fifteen after its decision in Court, with no less scope fervor, continued to circumscribe the of warrantless searches in Royer22 Royer, Florida v. In the Court reiterated that “the search scope justified by particular must be limited in purposes to that which is served words, In other the Court exception.”23 explained, scope “[t]he carefully detention must be tailored to underlying Although “scope its permitted of the intrusion justification.”24 vary particular will to some extent with the facts and cir- Royer case,” cumstances of each the Court in made it clear that investigative temporary an detention must be and last no longer necessary purpose than is to effectuate the stop. Similarly, investigative employed methods should reasonably verify be least intrusive means available to dispel suspicion period or the officer’s in a short of time.25 principles, Based on these this Court found the in Smith v. impermissibly State26 stopped Smith, broad. In the officer investigate why defendant, Smith, weaving. Upon his car was being driving satisfied that Smith was under the influence of probed possessed any alcohol, the officer into whether Smith narcot- *11 “[a]t point probe, ics. We held that the officer initiated this later beyond permissible scope investigation he went of the and his beyond permitted by further detention Terry of Smith went and underlying clearly its ported by Terry The sup- reasons our decision are progeny.”27 progeny. scope and its The of the officer’s detention carefully investigate why was not weaving. tailored to Smith was investigative possessed drugs, interrogating used, methods Smith about whether he totally driving
were
unrelated to his
and could 19Terry, supra,
392 U.
atS.
n. 15.
20 Id.
21 Id. at 20.
(1983).
confirm or officer’s Smith was period Likewise, the influence of alcohol. of detention was unnec- essarily long the officer delved into these other matters. compelling.
The circumstances in the instant case are even more stop Berry place. had in Moreover, The officer no reason to the first investigative the officer’s reasonably method was not the “least intrusive means verify dispel [his] suspicion”
available or that the car [was] Berry’s “longer stolen, was detention lasted than neces- sary” to whether the determine car was stolen.28 investigation
The video reveals that the officer focused his on virtually everything except whether the car was stolen. The officer Berry’s beginning pro- took driver’s license questions from, weather, ceeded to ask him about where he came Berry’s displayed particular and son, son. The officer interest
investigating age, lived, sick, where he whether he was his working, whether he was school or and whether he ever had been interrogated Berry It is not trouble. until the officer after personal matters, all unrelated these that the officer even bothered copy suspected in, to that the VTNon the stolen vehicle and call it a task this brief task only completing And,
took 35 seconds. after determining stolen, directed toward whether the car was the officer totally interrogation Berry’s private life, resumed his now belongings. unrelated into focusing investigative searching Berry’s personal his efforts on notwithstanding, judges
The invective of the dissent we distinguish particular peculiar. should be able between and the suspicion reasonable, If the officer had a articulable that the car investigative stolen, was his methods should have been tailored to verify dispel suspicion. Interrogation Berry’s family or about mat- itinerary, seemingly benign if ters and travel even to the casual unnecessary observer, constituted a substantial and intrusion into Berry’s personal security. Berry nothing indicating leave, was not free to and there is participation interrogation
that his in this “diligently pursue investigation”29 [d] [his] Had the consensual. officer investigation stolen, into whether the that and limited his into matter, brief, the detention would have been would spared unnecessary personal have been intrusion into his affairs. Terry is instructive: right carefully guarded, sacred, is held or is more
No
more
right
every
law,
individual to the
common
than the
possession
person,
and control of his own
free from all
*12
28Royer, supra,
restraint or others, interference of unless clear and unquestionable authority of law.30 authority
The officer had no such in this case. An unlawful arrest is liberty. liberty liberty, the contraband of To curtail our is to steal our liberty and to steal our is to steal our future as well as our freedom. Accordingly, majority. I concur with the Judge Judge Phipps join
I am authorized to state that Miller and special in this concurrence.
Pope, Judge, Presiding concurring specially. majority opinion, I concur in Division 3 of the that the initial stop opinion topic valid, traffic was not but would limit the to that because it controls the outcome of the case. disagree question regard-
I with the dissent’s statement that no ing press, propriety sup- of the initial is before us. moved to part, grounds “[t]he police on the had no articulable suspicion stop.” stating for the The trial court ruled on this issue tag.” the The may tunity was valid because “did not have a state-issued
principle underlying
argument
waiver of an
is that the movant
argument
given
oppor-
have waived an
if he has not
the court an
(196
Morgan
to rule on the issue. See
v.Kiff,
the driver’s *13 except at least articul- in those situations which there is suspicion that a motorist is unlicensed reasonable able and registered, or that either the that an automobile is or subject occupant vio- is otherwise to seizure for vehicle or an detaining stopping law, an automobile and lation of registra- license driver in order to check his driver’s tion of the automobile are and unreasonable under the Fourth Amendment. reasoning applies A dealer The same here. South Carolina
Id. at 663. standing expiration tag, required date, which is not to show provide tag suspicion alone, expired. an that has does not articulable (539 414, 416- Butler, v. 343 S.C. 201-206 SE2d State 2000). testimony (App. in this case And, is no in the record there properly tag suggest validly to that it was not and dis- about the played old, torn, that it looked or faded. or Appeals
Relying
held
Prouse,
on
the South Carolina Court of
prohibited South
officers from
that the Fourth Amendment
Carolina
solely
having
stopping
on the
a South Carolina dealer
cars
basis
stop
tag.
random
Id.
stated in Butler: “We cannot sanction the
As
every
bearing
temporary tag, leaving in the hands of
car
they
the freedom to detain whomever
desire
law enforcement officers
without
having
justify why they
stop
over
to
chose to
one motorist
Butler,
However, determined that the was we go stop invalid, fruits of the If the initial none of the no further. stop Jones, 214 Accord State are admissible. question whether the con- We need not reach the investigation were warranted. tinued detention Lastly, to Watson v. I would note that addition 817) (1989), necessary to overrule it is also tag expiration on the under South Carolina law no date need be shown The fact that decision, applicable not less so. makes Butler more to our 727) (1994),
Burtts v. to the extent stops it authorizes on this basis alone. Presiding Judge Andrews, I am authorized to state that Presid- Judge Presiding ing Judge Judge Ellington join Johnson, Smith, special concurrence. Judge, dissenting.
Eldridge, stop ongo- valid; The uncontested initial the valid ing prolonged and was not in order search; to conduct the free-air K-9 and the free-air K-9 search did not violate the Fourth Amendment. respectfully So, I dissent. propriety
1. The of the initial based on an invalid license undisputed us, is not before the issue went in the court finding lawfully stopped below.32The trial court’s that “the officer vehicle driven the defendant because the vehicle did not have a tag” provides nothing state-issued for this Court review when no one ever claimed below that such was not lawful. There is no nobody argues get put Thus, when issue one. the State did not for- *14 any grounds uphold stop display ward to a based on the failure to a tag, get valid and the trial did court not to rule on such issue. To base specific ruling a reversal on a trial court’s that was neither chal- lenged my below nor enumerated as error is, before this Court principle appellate view, to a violate basic of I review. continue to upon maintain that resolution of our cases based issues that were not dispute by in court is below and thus not addressed the State or the trial fundamentally unfair.33While we have under certain circum- party stances reached issues unaddressed either in order to affirm judgment right any undisputed a reason, as for it does not follow that wrong any issues should be in order reached to find a trial court reason. (a) The trial court found that the uncontested initial finding supported by valid. As such is law, the facts and the it is enti- tled to our deference. stopped Berry’s The officer in this case testified that he “[t]he tag vehicle did not have a valid on it.” The officer testi-
fied that he could not determine from face of the South Carolina tag expired drive-out whether it had or not:
[Defense Counsel:] tags Georgia, Drive-out are valid in cor- rect? Up
[Officer:] point. to a certain 48) (1999) (defendant 294, 297, Barber v. 236 Ga. fn. 1 waived addressing hearing); issue raised in written motion not it at Roberson v. (3) (491 (2) (b) (iii) (537 457) (2000) Blackwell, (Eldridge, J., dissenting). time didn’t know you And at that Counsel:] [Defense of time or not? period he was within that whether Exactly. [Officer:] is testimony, undisputed and it videotape supports Thus, not dates. display any did paper
South Carolina we a because here Georgia this is a basis for a proper of vehi- registration scheme comprehensive statutory governing a vehicle cles, operate newly acquired it a misdemeanor making author- statutory plate, providing specific without a valid license of these laws. ity for enforcement (l)34 (a) must every person register 40-2-20 that
OCGA states § days used vehicle within 30 of a license for a new or plate obtain who fails to a new or used “[a]ny register its purchase, person required within of its as subsec- days purchase motor vehicle (a) and, guilty this Code section shall be a misdemeanor tion thereof, a fine not punished by exceeding conviction shall be upon (b) (2) (A)36states that And OCGA 40-2-8 $100.”35 § required vehicle operate [i]t shall be a misdemeanor num- Georgia in the State of without valid registered to be [however], validated[;] plate properly provided, bered license may of a new vehicle or a used vehicle purchaser highways such vehicle on the and streets operate public valid plate during this state without a current license ... required regis- within which the period purchaser ter such vehicle. supplied.)
(Emphasis laws, specifically In statutory order to enforce such our scheme bearing vehicle operation newly acquired of a provides misdemeanor, must operator prove valid is a and the Georgia plate *15 registration 30-day that the vehicle falls within the upon request the for operator exempt penalties in which case the from period, misdemeanor: such subject of a vehicle shall not be operator purchaser during set in this Code section penalties
to the forth owner vehi- allowed for the such period registration. If of properly applied cle evidence that such owner has presents 1998, 1182, 4, applicable p. reflected in Ga. L. to the instant case. § As (c). § OCGA 40-2-20 1998, 1181, 3, p. applicable to the instant § as reflected in Ga. L. as § OCGA 40-2-8 2000, 523, 1, mandatory tempo case, p. provide significantly to for § amended in Ga. L. temporary period. rary displays expiration licensing licensing date of the which registration plate vehicle, such but that the license owner, or revalidation decal has not been delivered to such subject penalties.37
then the owner shall not be to the above registration gives Thus, officer the laws, to enforce our Code section an specific authority paper temporary tag to check whether a — — expiration tag without an is in date or a vehicle driven with no at all compliance puts laws, with our and it the burden on the driver newly acquired “present compliance of such order to avoid the to vehicle evidence” of
penalty. impossible Berry’s case, In this it was for the officer to know if compliance §§ vehicle was in with OCGA 40-2-20 and 40-2-8 without effectuating stop. paper temporary tag The South Carolina bore no markings compliance registration so as to show with laws. The officer specific statutory authority inquire had and ask to demon- compliance registration Clearly, argued strate with laws. it cannot be tag exempted the fact the was out-of-state somehow it from Georgia case, law. If that was the the convenient attachment to tag vehicle of an out-of-state drive-out could frustrate enforcement of §§ OCGA 40-2-20 and 40-2-8.38 misplaced Reliance on State v.Butler39is because South Carolina (as special well as the two other states whose cases are cited
concurrence) Georgia’s statutory specifi- does not have scheme which cally permits inquire validity temporary tags an officer to into the operator “present operator and to ask an evidence” that the has properly applied plate. for a license Simply Georgia sense, as a matter of common General (1)
Assembly would not have enacted laws, our detailed criminal (2) penalties comply, provision attached for failure to upon inquiry operator newly acquired present a vehicle must compliance, body evidence of if that had not intended to have the laws enforced.40 recognized applied
It must be
that whether the above law is
uni-
formly
constitutionality
or not
Likewise,
is not before us.
of this
statutory scheme is not before us. What is
us
before
is the fact that
steps
the statute authorizes the
that occurred in the instant case.
proper
Here, the trial court found that the initial
tag. tempo-
did not have a valid license
South Carolina
rary
paper
display any markings
dealer’s drive-out
did not
(b) (3).
(Emphasis supplied.) OCGA 40-2-8
§
(1) (477
176,
Jordan v.
177
2000).
(App.
893 Georgia tag” compliance law, and it was a “valid demonstrate statutory authority operator specific to ask the to officer had the “present compli- newly acquired vehicle was that such evidence” proper, Georgia reversal Thus, initial was law. the ance with ground this is not warranted.41 on (b) have cited the two states whose cases been State v.Butler and statutory provi- by completely special different concurrence statutory authority provide specific for an officer’s sions which do not enforcement of state foreign registration cases Thus, these laws. provide application for over- the instant case and no basis have no to urged by special ruling prior as decision Burtts v. our concurrence.
(c) application this case and Likewise, v. State42has no to Watson Berry’s urged by majority. herein, car as should be overruled tags stopped sto- are often used to conceal was not drive-out proper developed suspicions len vehicles. The officer such after tag Berry’s stop, rental contract and the drive-out when he saw that provides by companies. The instant case were issued wrong different wrong provides Watson, and Watson venue to overrule to the instant case. vehicle reverse during ongoing found that the valid
2. The trial court prolonged in order K-9 and the valid was not the free-air to conduct the search. Such upheld. search by finding, supported evidence, should be Morgan Georgia that in order to State Patrol Officer testified tag Berry’s paper valid, rental con- determine if the he checked (VIN) identification number tract. He called in the vehicle from “Rob- contract stated that the vehicle was when the rental paper that the vehicle was Rental,” ert’s drive-out stated but coupled “Hartsog’s conflict, Such with the officer’s from Rental.” commonly knowledge tags conceal auto are used to briefly suspicion provided detain theft, Berry reasonable articulable rented vehicle.43 for a VIN check of his waiting were for informa- Thereafter, while the officer and performed the free air check, the on-the-scene K-9 tion on the VIN testify evidence to contra- did not or offer search of the car. dict fact. majority
Contrary wherein the traffic the cases cited clearly completed stop investigation and the had been at issue investigation unlawfully further,44 the traffic detained defendant was 41 727) (1994). 840 Burtts v. 42 1868, Terry Ohio, SC 20 LE2d 392 U. S. 380) (1999); Migliore Blair, Compare
in this case was clearly ongoing; only two minutes had elapsed call-in between the of the rental car’s VIN at 10:10 a.m. and the free air a.m.; search at 10:12 drug dog and the free air search did not prolong the lawful detention.
The majority claims reversal is warranted because of a comment on the videotape by Officer Morgan Berry that if *17 drug did dog not “hit” on anything, the officer would you “send on your way.” From — this “send you your on way” comment made in order to placate what the videotape shows and the trial court found was an obviously — unnerved Berry the majority infers that the officer “abandoned” the VIN check.
However, Berry did not offer evidence or ever contend that officer abandoned the VIN check. And Officer Morgan testified at both the preliminary hearing and at the on the hearing motion to that suppress Berry was not free to leave until the VIN information came back on the radio:
[Defense Now, Counsel:] Officer Morgan, you do remember appearing a committal on hearing October 6th here in Rockdale County Magistrate Court with me and Berry? Mr. . . . Do you telling remember me that you were going let Mr. Berry go until you got the information back over the VIN check?
[Officer:] Yes. Moreover, in the videotape the officer specifically told that he needed to check the VIN because it is so easy to remove a paper drive-out like the one on Berry’s vehicle, go to an lot, auto put the on paper tag vehicle, another and drive the car away. evidence,
From this it would seem unreasonable to infer that Morgan Officer longer no cared what the VIN check would show and had abandoned his investigation of whether the rental car was sto- len. While the majority finds that significant
[a] discrepancy exists between the officer’s testi- mony that he had not completed his investigation of the tag when he conducted the search with his dog his statement on the videotape that Berry would be free to go after dog car,45 checked his Ga., App. 783,
State 240 Ga. Simmons v. 123) (1996); 781-782 Kwiatkowski, see also The officer never told go dog that he “would be free to after the checked his car.” repeatedly held, has this Court duty all these dis- [i]t resolve court to of the trial credibility crepancies and determine in evidence suppress, appeal motion to of a of the denial On
witnesses. favorably uphold- to the most construed evidence is of the be the ing judgments findings made.46 findings majority posits, of fact may true, as And it be videotape should specifically recorded conflict with facts which way videotape. true mistake give me, it would be a But to to the — opinion majority by holding principle objective as the extend this suggests — thought processes subjective testi- later an officer’s videotape hearing suppression on the must be articulated fied to at a tape testimony tape ensues, and the or a “conflict” between prevails. Instead, part depen- ruling inwas issues, trial court’s
on these dent weight credibility officer’s] [the upon the trial and the upon put therefore defer to We must the evidence. court disputed findings veracity fact, the court, as issues of the trial *18 weight evidence are of the witness, and the of a province.47 within its spe- any discrepancies and case, trial court resolved In this the stop was
cifically the “traffic the search at the time of found that given permis- ongoing had not been the Defendant in matter and the com- conducted and the K-9 was free air search to leave.” The sion both pleted call-in and while minutes VIN of the officer’s within two reply clearly waiting As thereto. for a were the officer and prolonged, was no and there was not valid traffic such, the proper stop.48 encompassed the that which than detention other the Fourth Amendment. violate K-9 search did not The free air by requesting consent is not offended Amendment The Fourth stop, drugs during as of a valid traffic the course a vehicle for search already “Having the a of effected valid in this case.49 was done appellant’s] certainly trooper Fourth Accord not violate did vehicle, the requesting merely by rights consent. such Amendment LE2d 2041, 36 218 SC Bustamonte, 412 U. S. v. Schneckloth (1972).”50 right drug on the a to be K-9 has enforcement Likewise, a 46 19) (1990). (1) (392 State, App. 777 SE2d v. 194 Ga. Moon Lyons 47 841) (2000). 658, (1) (440 State, SE2d 244 Ga. 661 53, State, 264 Ga. Tate v. (2) (404 (1), State, Kan v. State, (2) (371 Taylor v. accord Pupo public roadway, expectation pri- and a driver has no reasonable of vacy place, airspace surrounding “exposure public in the his car: . . . in a [does]
to a trained canine not constitute a ‘search’ within the meaning during Thus, of Fourth Amendment.”51 a course of stop, prolong legiti- search, valid a air traffic free which does a not “police detention, mate does not violate the Fourth Amendment: issuing could have conducted the free-air search while the officer was warnings traffic offenses.”52 holding applicable
Further, this Court’s Smith v. is not State53 ongoing case, in this since the brief traffic and was in no way prolonged in order to conduct free air K-9 search.54 regard wrongly Moreover, with to Smith v. such case was — special urges decided to the extent it that on holds as the concurrence — questioning topic mere unrelated an constitutes a violation Terry. year: As the Eleventh Circuit held this police questioning, subject officer’s even on a unrelated to purpose stop, of the not itself Fourth Amendment questioning violation. Mere is neither a search nor a [T]he regarding questions . . . seizure. issue unrelated con- questions, impact cerns not the content but their stop. only the duration of the Therefore, . . . unrelated questions unreasonably prolong which the detention are questioning, unlawful; detention, not is the evil which Terry’sprohibition Questions is aimed. which do extend scope the duration of the initial seizure do not an otherwise constitutional. exceed stop.55 . . suppress properly case, In this motion to denied, judgment below be court should affirmed. Judge joins
I am authorized to state that Mikell in this dissent. *19 (1) (c) (498 113) 749, (1998). App. 230 Ga. 751 SE2d 51 (103 Place, 110) 696, 2637, (1983); United States v. U. 462 S. 706-707 SC 77 LE2d (376 406) State, 519, App. State, v. 189 Boggs App. Ga. 526 SE2d 194 Ga. O’Keefe 264-265 (390 423) (1990); Hall, (509 412, App. SE2d State 235 Ga. 415 SE2d 52 Jones, 819) 763, (2000). 245 Ga. 767 SE2d 53 App. 453, 454 SE2d 54 Notably, questions relating “personal the officer’s special matters” that concern the “killing concurrence asked waiting were while the officer was time” for driver’s license prolong information to come back over the radio and did not the detention. answered willingly, exchange agreeable and the video parties. shows the to both 55 (Citations punctuation omitted; emphasis supplied.) and Purcell, States v. United (11th 2001). F3d 1279-1280 Cir. 30,
Decided March Purvis, for appellant. S. James Y. Waters, Dabney C. Read, Heather Attorney, R. District
Richard Kentner, Attorneys, appellee. District Assistant THE STATE.
A01A0550. LAVJI v. THE STATE. A01A0551. ALJAWAVY v. 628) Johnson, Judge. Presiding were Hemidi Mohammed Aljawavy, Hussain and Lavji,
Feroz also for possess- and Hemidi was indicted robbery, indicted for armed Aljawavy crime. and Lavji the commission of a ing during a firearm separately Hemidi was tried jury, while together were tried before jury. before another him rob- in both armed guilty
The Hemidi’s case found jury from He bery previously appealed a firearm. has possessing and convictions.1 And we have affirmed those convictions. guilty also found them Aljawavy’s in and case jury Lavji
The filed appeals. and robbery. Lavji Aljawavy separate the armed we consider together, and were tried shall Lavji Aljawavy Because opinion. in this together their appeals evidence of the sufficiency and both
Lavji Aljawavy challenge convictions, challenges further and Aljawavy their supporting merit, we there- are without and charge. challenges court’s The jury Aljawavy. Lavji fore affirm the convictions mandates a the evidence argue Lavji Aljawavy 1. Both but robbery, willingly they participate did finding evi- Hemidi. Given gun-wielding participate were forced record, unpersuasive. to be argument we find the dence verdict,2 the evidence in the most to the light favorable Viewed 1998, Lavji, morning in January on a that at about 1:00 shows car. Lavji’s wife’s gas drove to a station and Hemidi Aljawavy, a car dealer’s replaced removed had been car’s license tag. gas near in the the side parked men The three waited store, officer, inside the station’s who had been police until station car to left, men their three moved left After the officer the area. (2000). Hemidi v. (1) (2000). (a) (532 Scott v.