Berry v. State
| Citation | 547 S.E.2d 664,248 Ga. App. 874 |
| Decision Date | 30 March 2001 |
| Docket Number | No. A00A1912.,A00A1912. |
| Parties | BERRY v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
James S. Purvis, Conyers, for appellant.
Richard R. Read, Dist. Atty., Heather C Waters, Dabney Y. Kentner, Asst. Dist. Attys., for appellee.
Pursuant to the grant of an interlocutory appeal, Henry Lorenzo Berry appeals the superior court's denial of his motion to suppress evidence seized from his car after a traffic stop. He contends the trial court erred by holding that the search did not violate Art. I, Sec. I, Par. XIII of the Georgia Constitution (1983) or OCGA § 17-5-1.
The entire incident was videotaped by a camera in the police car, and the video was shown to the court. The video and the officer's testimony show that Berry was traveling alone at about 10:00 a.m. when he was stopped on 1-20 by a City of Conyers police officer for driving a car with a dealer's driveout license tag. The officer was a narcotics officer who apparently was on routine patrol with his drug dog and his partner. The video shows that the two police officers approached the car on both sides and looked in the car.
Although some comments are inaudible, the following is a transcript of the stop as shown on the videotape:
After the dog alerted at several places on the car, the officer searched the car and opened a plastic bag he had seen earlier in the passenger compartment. It contained about eight pounds of marijuana. Berry was arrested and charged with violation of the Georgia Controlled Substances Act: possession of marijuana with intent to distribute.
Although the officer later testified that the rental contract appeared to have been altered, the videotape does not show that he ever questioned Berry about it. At some point, however, the officer confirmed that the contract was valid (the rental agency had made the alterations) and the car was not stolen. The officer testified that he saw no contraband in plain view, but did see a large black garbage bag behind the passenger's seat. He did not smell marijuana.
Subsequently, Berry moved to suppress the marijuana found in the rented car, the trial court denied the motion, and Berry sought and obtained authority to bring this interlocutory appeal from that order.
The trial court's order states:
Henry Lorenzo Berry was stopped while driving on Interstate 20 by a City of Conyers Police Officer, Ken Morgan. Officer Morgan operated the canine (K 9) unit. The defendant was stopped for driving a car with a dealer drive out paper tag. After the stop, Officer Morgan requested his driver's license and insurance, 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 by the use of a photocopy machine. While the Officer was running a check on the items, he engaged the Defendant in a conversation. It did not appear to be a traditional rental contract form. The discussion between the officer and Defendant was amiable; however, the Defendant's answers were contradictory. The entire stop was videotaped and played for the Court during the hearing on the Defendant's Motion to Suppress. While the license and VIN number of the vehicle were being confirmed, the Officer requested to search the Defendant's vehicle. The Defendant refused to give consent. After this refusal, the Officer used his dog to conduct a "free air search" around the vehicle. The dog alerted and a search ensued whereby contraband was found in the back floorboard 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 to the Officer, I 20 is increasingly becoming a transportation lane for illegal drugs and narcotics. This case is distinguishable from Smith v. State, 216 Ga.App. 453 (1995) because the Officer did not conduct the "free air search" based solely on a hunch. Furthermore, the inquiry did not relate to a drug inquiry but was simply about the Defendant's travel plans. The questions were not unconstitutionally intrusive when balanced against the danger of 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 to go. Simmons v. State, 223 Ga.App. 781, 782 (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 the reasonable suspicion standard. Jorgensen v. State, 207 Ga.App. 545, 546 (1993). Therefore, the Defendant's Motion to Suppress is hereby denied.
1. In reviewing the trial court's decision "we must determine whether the officer's action in pulling [Berry] over was justified at its inception, and whether the detention was reasonably related in scope to the circumstances which justified the interference in the first place." (Citation and punctuation omitted.) Smith v. State, supra, 216 Ga.App. at 454, 454 S.E.2d 635..
2. Our Supreme Court has established three guiding principles to guide us in reviewing a trial court's order on a motion to suppress:
First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his...
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