Lead Opinion
After the traffic stop of the vehicle in which they were passengers, Kashif Nash and Antoine Davis were indicted on charges of possession of marijuana (Nash and Davis), and possession of cocaine with intent to distribute and trafficking in methamphetamine (Davis). Nash and Davis filed interlocutory appeals from the trial court’s denial of their motions to suppress evidence obtained as a result of the traffic stop. The appeals — Case No. A13A0200 and Case No. A13A0201 — have been consolidated for purposes of our review. For the reasons discussed below, we reverse.
At a hearing on a motion to suppress, “the trial judge sits as the trier of fact.” State v. Hamby,
So viewed, the evidence adduced at the hearing on the motion to suppress shows that an officer with the Gwinnett County Police Department initiated the stop of a vehicle after observing what appeared to be a window tint violation. As the officer approached the vehicle, which had a South Carolina license plate, he noticed an air freshener hanging from a rear driver side handle, and noticed an overwhelming odor of air freshener when the passenger let down the window. The officer also observed that there were three additional “air fresheners that were shaped like trees” and clip-on “air freshener [s] in every single one of the vents and the dash.”
In addition to the driver, there were two other individuals in the vehicle — Nash, who was the front seat passenger and Davis, who was seated in the back. The officer took the driver of the vehicle back to his patrol car while he verified his driver’s license and the vehicle’s registration.
The officer then tested the window tint and, after determining that tint level did not comply with the “thirty two percent that the law states in Georgia,” informed Nash that he needed to remove or redo the tint to make sure that it was compliant with South Carolina law. The officer also asked Nash where the men were coming from and if they were related, and Nash told him that the driver was his cousin but that Davis was a friend. The officer testified that Davis “chimed in” that the men had “visit[ed] his people down in Atlanta.”
The officer testified that after he went to the window to measure the window tint, he radioed for officer assistance because he had become suspicious of criminal activity because of the air fresheners and conflicting stories. The second officer arrived less than ten minutes after the radioed request, at about twenty minutes into the stop. The officer wrote the driver a warning citation, which the driver signed. He then counseled the driver about the citation, returned the driver’s license and gave him a copy of the citation, but not the registration. The officer then asked the driver if “there was anything illegal inside the vehicle, specifically marijuana, cocaine, methamphetamine, or ecstasy.” The driver responded that there was not. The officer testified that he asked about the
The officer went back to the vehicle to give the registration to Nash and also asked him if “marijuana, cocaine, methamphetamine, [or] ecstasy’ were present in the vehicle. The officer testified that he knew that the driver could not consent to a search of the car, so he had gone back to the car to get consent from Nash to search. Nash refused. The officer testified that he had to ask him for consent to search twice because when Nash first refused consent he mumbled and “would not make eye contact with [the officer] and he mumbled his response.” The officer also noted that Nash appeared nervous, and that he was surprised that the nervousness had not subsided after Nash had been told “he was getting a [warning].”
The officer then radioed for a K-9 unit to be dispatched to the location. The K-9 officer testified that his unit was about 25 to 27 miles away when they received the dispatch and that it had taken “twenty minutes, give or take” to respond. After a free air search around the vehicle, the K-9 unit dog alerted on the trunk of the vehicle. Upon searching the trunk, the officers recovered a gallon size freezer bag containing marijuana weighing one pound. At the jail, police also recovered two small bags of marijuana and 100 ecstasy pills from Davis’ person. Police also retrieved cocaine from under the back seat of the patrol car that transported Davis.
Davis testified at the hearing on the motions that he sat in the first officer’s patrol car for approximately 45 minutes after the window tint investigation concluded, waiting for the K-9 unit to arrive. He also testified that the two officers searched under the seat and in the glove compartment before the K-9 unit arrived.
After the driver, Nash and Davis were indicted on charges related to the discovery of the drugs, the men moved to suppress evidence of the drugs, essentially arguing that there was no reasonable articulable suspicion of criminal activity to justify their continued detention once the officer wrote the warning for the window tint. After a hearing, the trial court denied the motions, but issued a certificate of immediate review.
In denying the motions, the court found that the officer “had sufficient information to justify a continued detention for the purpose of investigating his suspicion that there were illegal drugs in the vehicle.” The trial court further found that while the presence of air fresheners and conflicting stories about the men’s travel destination and relationships “may not each be sufficient standing alone to justify a continued detention ... based on the totality of the particular facts in this case, [the officer] had sufficient articulable suspicion to justify a continued detention for the few extra minutes it took the K-9 officer to arrive.” The trial court found that the K-9 officer arrived on the scene within “30-45 minutes of the initial stop of the vehicle.”
On appeal, Nash and Davis essentially contend that the trial court erred in denying their motions to suppress because of the lengthy detention after the traffic stop was complete, and because the extended detention was not supported by reasonable articulable suspicion.
We first consider the reasonableness of the length of the detention. Upon this Court’s review, “it is appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” (Punctuation and footnote omitted.) Pollack v. State,
A reasonable time to conduct a traffic stop includes the time necessary to verify the driver’s license, insurance, registration, and to complete any paperwork connected with the citation or a written warning. A reasonable time also includes the time necessary to run a computer check to determine whether there are any outstanding arrest warrants for the driver or the passengers.
(Citation and punctuation omitted.) Sommese v. State,
Moreover,
[a]n officer may order a free-air search of the area surrounding the vehicle by a trained canine without implicating the Fourth Amendment, if the same is performed without unreasonably extending the stop. As with any Fourth Amendment analysis, the touchstone of our inquiry is the reasonableness of the officer’s conduct, which is measured in objective terms by examining the totality of the circumstances.
Young v. State,
Here, the detention was not brief, nor justifiable in its length to confirm or dispel any suspicions of criminal activity quickly. See Pollack v. State,
The officer testified that he had suspected criminal activity much earlier in the stop because of the air fresheners and conflicting stories — which then precipitated his call for officer backup — yet he did not at that time inquire into whether the men had illegal substances in the car, nor did he ask for consent to search, or request the K-9 unit. Instead, the officer continued with the investigation of the window tint violation, and even completed the warning citation and gave the driver back his driver’s license. At that point, even though suspicious of criminal activity much earlier in the interaction, he then questioned the men about illegal contraband, asked for consent to search, and requested a K-9 unit that was almost 30 miles away. See, e.g., Weems v. State,
Thus, under these circumstances, the actions of the officer unreasonably expanded the scope or duration of the traffic stop, and accordingly, because the officer illegally detained Nash and Davis, the order of the trial court is reversed and the case is remanded with direction to grant appellants’ motions to suppress.
Judgment reversed.
Notes
James Nash, the driver, was also indicted for possession of marijuana and possession of cocaine with the intent to distribute.
Dissenting Opinion
dissenting.
This case implicates the delicate balance that must be found between law enforcement’s ability to perform its duties and every citizen’s Fourth Amendment protections against unreasonable search and seizure. The question before the Court is whether the officer had reasonable suspicion of criminal conduct and could “prolong a stop” for an additional 20 minutes while waiting for a K-9 free-air search after the stop’s original purpose has been completed. The majority believes the officer did not have reasonable articulable suspicion to detain the motorists. I disagree.
Under the standard set forth in Terry v. Ohio,
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 the motorists they are free to go. To meet the reasonable suspicion standard, an officer’s investigation during a traffic stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Although this suspicion need not meet the standard of probable cause, it must be more than mere caprice or a hunch or an inclination.
(Footnote omitted.) Pollack v. State,
When the officer decided to call for the K-9 unit and prolong the stop, he knew that: (1) the Dodge Charger’s windows were tinted past the legal level (and that often tinted windows are used to disguise criminal activity); (2) the car had an “overwhelming odor” of air freshener and was equipped with an abnormally large quantity of air fresheners (and that air fresheners are often used to disguise the smell of narcotics); (3) the three motorists gave inconsistent accounts of their itinerary, could not name the family members that they had allegedly just visited, or where within Atlanta they had visited; (4) the driver became more nervous, rather than less nervous, when he received a warning rather than a violation, which coincided with the officer asking him if any drugs were inside the vehicle; and (5) the car owner would not make eye contact with the officer, first mumbling his initial response and then stating “I don’t want you to search my shit” when the officer asked to search the vehicle. I agree with the trial court that
[w]hile conflicting accounts of their relationship and their travel destinations, or the overwhelming air fresheners may not each be sufficient standing alone to justify a continued detention . .. based on the totality of the particular facts in this case, [the officer] had sufficient articulable suspicion to justify a continued detention for the few extra minutes it took the K-9 officer to arrive.
We have previously found that nervousness, a strong scent of several air fresheners, erratic driving, traveling a known drug route, and passengers’ conflicting statements as to their itinerary proved sufficient to detain the motorists for 30 minutes for a canine unit to arrive. Jones v. State,
We weigh heavily the “specific reasonable inferences which [an officer] is entitled to draw from the facts in light of his experience.” (Citation omitted.) Terry, supra at 27 (III). The motorists’ incongruous stories, forgetting family members’ names, overly tinted windows, a strong odor of air freshener coming from an unusual number of devices, and increased nervousness all amount, in my opinion, to evidence sufficient to justify further detaining the motorists.
Further, “[i]n considering whether the length of a detention was reasonable, it is appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.” (Punctuation and footnote omitted.) Pollack, supra at 404 (3) (b). The officer in this case attempted to expediently confirm or dispel his suspicions when he first asked to search the vehicle for drugs. When the car owner declined his request, the officer did not yet have probable cause to search the car; therefore, a free-air search became the next prong of investigation, and he promptly called for a K-9 unit. “The dog’s reaction would either confirm or fail to confirm the officer’s belief that [the motorist] possessed drugs in the car trunk. In the event of the latter, [the motorist] would be free to leave. In the event of the former, probable cause for the search would exist. . . .” Schmidt v. State,
This Court in Schmidt found that an additional thirty-minute, one hour total wait for a K-9 unit to arrive after the driver already received a warning and the return of his driver’s license constituted an arrest. Schmidt, supra at 87. However, in Pollack, the officers detained a motorist for a total of 43 minutes while the police waited for the K-9 unit to arrive, an amount of time this Court found reasonable given that the officers smelled marijuana in the vehicle and the driver admitted he was on parole. Pollack, supra at 401. In the present case, the trial court found that the K-9 unit arrived on the scene between 30 and 45 minutes after the initial stop, indicating an equal or lesser detention than the motorist in Pollack.
Because the “totality of the circumstances” test evaluates the strength of the evidence in conjunction with the length of continued detention in determining the detention’s appropriateness, the case sub judice is distinguishable from State v. Thompson,
As I find that the trial court correctly concluded that this 20-minute additional delay was justified, given the officer’s reasonable suspicion, I hereby respectfully dissent.
I am authorized to state that Presiding Judge Andrews and Judge Dillard join in this dissent.
The amount of time which elapsed after the warning was issued until the dog arrived was only “twenty minutes, give or take.”