A Chеrokee County deputy sheriff stopped Ali Ibrahim Habib because neither he nor his passenger was wearing a seat belt, аnd subsequently discovered a gram of marijuana in the back seat of the car Habib was driving. Habib was charged with violating the seаt belt law and with possession of less than an ounce of marijuana. The trial court granted his motion to suppress, and the Stаte appeals. For the reasons that follow, we affirm.
The defendant stipulated at the motion to suppress hearing that he was not challenging the stop itself, but contended that the officer did not have a reasonable articulablе suspicion that justified detaining him in custody. The officer testified that he asked Habib for his license and asked him to step out of thе car because he wanted to ask ■ him the passenger’s name without the passenger, who had no identification, heаring his answer. He intended to cite both men, who were 19, for seat belt violations. The passenger spoke as if he had a “thick *230 tongue,” or as if he had something in his mouth, which indicated to the officer that he had been smoking marijuana.
The officer then asked Habib to stick out his tongue, which was stained brown and had a foamy, “cotton-mouth” kind of substance around his tongue, which to the officer was indicative of someone who might have smoked marijuana. He then asked the passenger for permission to search his person, which he testified revealed the smell of marijuana, and the passenger admitted he had smoked marijuana the day before. The officer “felt like” both men had been smoking, and the passenger’s admission to smoking the day before coupled with their “cotton mouth” led him to suspect they had marijuana on them.
The officer then asked Habib if he cоuld search his person, and after he had done so and found no contraband, asked if he could search the car. The subsequent search uncovered a gram of marijuana in a cigar tube on the back seat. Finally, the officer testified thаt he held Habib’s license the entire time, that Habib was not free to leave, and that he intended to check for warrants against both men before releasing them. The officer admitted that a person could have a dry mouth for reasons othеr than marijuana ingestion, such as from medication or smoking cigars or cigarettes.
In its order granting Habib’s motion to suppress evidence of the marijuana, the trial court found that the officer had no reasonable suspicion that supportеd his expanding the scope of his investigation from a minor seat belt violation. The officer never ran Habib’s driver’s license nor concerned himself further with the initial reason for the stop. Instead, he “launched himself” into a drug investigation based solely on the fact that he thought the driver and passenger had dry mouths, which could have been caused by a number of conditions. Thе officer proceeded on a “mere hunch,” and the detention included not only questions about marijuana use but alsо a rather extensive search of Habib’s person, which was negative.
The trial court further found that Habib’s consent to seаrch his car was not freely and voluntarily given, based on the officer’s manner of questioning, the defendant’s youth, and the extensive personal search that had already taken place. The court concluded that a reasonable person would not have felt free to decline the officer’s request or otherwise terminate the encounter.
1. The Stаte argues that the trial court erred by ruling that the deputy impermissibly exceeded the scope of the stop. We review de novo the application of the law to undisputed facts,
State v. Winnie,
An officer must have more than a mere hunch to detain someone
*231
and then search his car and person.
State v. Jones,
2. The State also contends that the trial court erred in ruling that Habib did not freely аnd voluntarily consent to the search of his car, and notes that an illegal detention does not require suppression оf evidence found if the subsequent search was pursuant to a voluntary consent.
Miranda v. State,
However, in order to eliminate any taint from an involuntary seizure or arrest, there must be proof both that the consent was voluntary and that it was not the product of the illegal detention. Proof of a voluntary consent alone is not sufficient. The relevant factors include the tempоral proximity of an illegal seizure and consent, intervening circumstances, and the purpose and flagrancy of the official misconduct. [Cits.]
VonLinsowe v. State,
While Habib said yes when the deputy asked if he could search the car, a videotape of the еntire stop shows that the officer had already performed an extensive search of both Habib and his passenger, making the passenger remove his shoes. The officer admitted that he held Habib’s driver’s license while asking questions unrelated to thе seat belt violation, and that Habib was not free to go. “Because [Habib’s] consent to search his [car] was the prоduct of this illegal detention, it was not valid. [Cit.]”
State v. Gibbons,
Judgment affirmed.