Cert. applied for.
Motion to suppress. Henry Superior Court. Before Judge Crumbley.
James L. Wright III, District Attorney, Jordan K. Van Matre, Assistant District Attorney, for appellant.
Christina M. Kempter, William C. Puckett, Jr., Veal & Lamar, Holly W. Veal, for appellees.
PHIPPS, Chief Judge. Barnes, P. J., Ellington, P. J., and McFadden, J., concur. Andrews, P. J., and Ray and McMillian, JJ., dissent.
Phipps, Chief Judge.
After police discovered marijuana in a car that was stopped for lane infractions, Patrick Scott and Dorian Allen, the driver and the passenger, respectively, were indicted for the possession of more than one ounce of marijuana. Scott and Allen moved to suppress the drug evidence as the fruit of an illegal seizure. The court conducted an evidentiary hearing, then granted their motion. The state appeals. For reasons that follow, we affirm.
The sole witness at the suppression hearing was the patrol officer who initiated the traffic stop. On direct examination, he testified to the following. On September 13, 2012, while stationed in the median of an interstate to monitor traffic, the officer observed a 2012 Nissan Altima vehicle cross from the center lane of travel into " the fast lane." [328 Ga.App. 412] As the Altima passed the officer's stationary position, the officer saw the driver " pointing his finger all in the passenger's face." Concerned that the driver was distracted, the officer decided to catch up with the Altima. As he did so, the officer saw the
Altima " make the same lane infractions again" ; the officer also saw that the driver was " still reaching over with his fingers, pointing in the passenger's face." The officer initiated the traffic stop.
The officer walked to the Altima and informed the two occupants, appellees Scott and Allen, that they were stopped because of lane infractions. The officer asked them whether they were having an argument. Scott answered no, and stated that he was just talking to Allen. The officer advised Scott that he would be writing him a courtesy warning for the lane infractions. The officer obtained from Scott his driver's license and obtained from Allen a South Carolina identification card.
The officer perceived that Scott and Allen were nervous. Because of the lane infractions, the officer wanted to " see how [Scott] was on his feet" to " make sure he wasn't intoxicated." The officer asked Scott to exit the vehicle; Scott got out of the vehicle and walked to the location designated by the officer. The officer conducted a pat-down search of Scott; after finding no weapon, the officer " engaged in general conversation with [Scott]" while he wrote the courtesy warning.
But after writing the warning, the officer did not thereupon hand it (along with the identifications) to Scott, who was standing beside him. Instead, as the officer testified,
[O]nce I completed the warning I had dispatch check both of their driver's license[s]. Mr. Allen's was through South Carolina and Mr. Scott's was through Georgia. While waiting on returns from GCIC to come back, waiting on dispatch I had asked Mr. Scott for consent to search his vehicle. Mr. Scott wouldn't deny nor consent to a search.
The officer testified that Scott replied only that " you already got me stopped," and " [s]o at that time I had Mr. Allen exit the vehicle also and once Mr. Allen exited the vehicle I had them both stand at the front of my patrol car and I retrieved my K-9 partner Kazan out of the rear of my vehicle." When the officer walked the drug dog around the Altima, the dog showed a positive odor response. The officer put Kazan back into the patrol car, then began searching the Altima. While searching the interior of the vehicle, the officer received the requested GCIC information from dispatch; when the officer's search reached the trunk of the car, he discovered the marijuana.
[328 Ga.App. 413] An audio-video recording of the traffic stop was played at the suppression hearing.
On cross-examination, the officer provided additional details. He testified that, when talking to Scott and Allen as they sat in the Altima, he had looked at the vehicle's interior, but had seen neither marijuana nor any drug paraphernalia; and he had not detected the odor of marijuana. The officer stated that, when Scott complied with his directive to step outside the Altima, Scott continued to appear nervous, but showed " no signs of being intoxicated or impaired." The officer had concluded, " [Scott] wasn't intoxicated." Additionally, the officer agreed that " the courtesy warning was completed at that time as we see in the video ... when [he] contact[ed] dispatch" ; that " [a]fter [he] completed the warning" he " ran the license[s] at that point" ; and that the " written warning was completed prior to [his] running the GCIC to dispatch."
On motion to suppress the evidence, Scott and Allen argued that the drug evidence was discovered only after the officer had unlawfully expanded the traffic stop. In its order ruling thereon, the court recited that it had considered, inter alia, both the officer's testimony and the recording. The court set forth the state's position that the extended detention was authorized by the officer's need to run a computer check, then found, however, that " the officer did not begin this inquiry until ... at the point when the officer had finished writing a warning citation for the traffic offense." The court also determined that it was the drug dog's response that provided probable cause to search the vehicle, but ruled that at the time the drug dog had so responded, Scott and Allen ...