Davidson v. State, A02A1081.

• Decision Date: 04 September 2002
• Docket Number: No. A02A1081.,A02A1081.
• Citation: 257 Ga. App. 260,570 S.E.2d 698
• Parties: DAVIDSON v. The STATE.
• Court: Georgia Court of Appeals

570 S.E.2d 698

257 Ga. App. 260

DAVIDSON v. The STATE.

No. A02A1081.

Court of Appeals of Georgia.

September 4, 2002.

William D. Healan III, Winder, for appellant.

Timothy G. Madison, Dist. Atty., for appellee.

MILLER, Judge.

Dominic Davidson appeals his conviction of possession of cocaine, contending that his motion to suppress the cocaine should have been granted because (1) the stop of his car was made without a reasonable articulable suspicion of criminal activity, (2) the discovery of the cocaine was the result of his illegal roadside detention, and (3) the chain of custody of the cocaine was not established. Discerning no error, we affirm. The standard for reviewing a trial court's decision on a motion to suppress is clear:

In reviewing a trial court's decision on a motion to suppress, an appellate court's responsibility is to ensure that there was a substantial basis for the decision. Our Supreme Court has established three guiding principles for reviewing such rulings: 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 findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment.

(Citation, punctuation and emphasis omitted.) State v. Braunecker, 255 Ga.App. 685-686, 566 S.E.2d 409 (2002). Moreover, "in reviewing the denial of a motion to suppress, this Court may consider both the transcript of the motion hearing and the trial transcript." (Citation omitted.) Barnes v. State, 228 Ga. App. 44, 491 S.E.2d 116 (1997); accord Goddard v. State, 244 Ga.App. 730, 731(1), 536 S.E.2d 160 (2000).

Construed in the light most favorable to the court's ruling, the evidence showed that the arresting officer was traveling in a marked patrol car on a two-lane portion of an interstate just past an exit when he noticed Davidson, about two car lengths ahead of him and in the lane to his right, slow down, roll his window down, and "flag[ ] at me, waving his hand and turning back in his seat in my direction ... trying to get my attention." The officer pointed for Davidson to pull over, and he did so. Without activating blue lights, the officer pulled over to the other shoulder. Davidson then ran across the interstate in medium to heavy traffic to the officer, who asked him to go back to his car carefully so the officer could move his unit over to the other shoulder behind Davidson. Once behind Davidson's car, the officer activated his blue lights for safety and exited his unit to determine what was going on.

Davidson indicated he had to use the bathroom and wanted to know where the nearest restroom was. He was extremely excited, stood very close to the officer, talked very fast, and was jumpy and nervous; also, his concentration was short, he was looking around, and his hands were moving a lot. He asked whether the officer would arrest him if he went off to the tree line, presumably to urinate, and the officer said he would not. Less than a mile earlier, Davidson had passed an exit with signs indicating that there were gas stations. The officer felt he needed to "look a little further" because "whenever somebody ... overdoes something, there is usually a reason."

The officer thought the reason Davidson was so jumpy might have been his physical distress, but when Davidson returned, his demeanor was still the same, and the officer asked to see his driver's license. Davidson hesitated and said he needed to get to Charlotte as soon as possible, but he cooperated. When he pulled his license out of his wallet, the officer saw a second one, which he asked to see. The second license turned out to be torn up and expired. While checking the first license, the officer noticed that Davidson was in an extreme hurry to leave.

The officer also asked for an insurance card, and Davidson got back in the driver's seat, looked around very quickly (though not in the glove compartment), and said he did not know where it was; he then put the key into the ignition and looked up into the mirror. Something felt wrong to the officer, who feared Davidson might be about to drive off, so he had Davidson step to the back of his car so the officer could ask him a few more questions. The officer asked him if he had any weapons, large amounts of currency, or drugs. Davidson replied that he did not; but his nervousness and excessive politeness made the officer suspicious, and he asked Davidson who owned the car. Davidson responded that a friend owned it.

The officer then asked Davidson whether he could search the car, and he took Davidson's evasive response as a refusal. He then got his drug-sniffing dog out of his unit and, without objection from Davidson, walked the dog around Davidson's car. This occurred less than five minutes after Davidson's return from the tree line. The dog alerted on the front passenger door. By then backup had arrived, and the original officer took the keys from the ignition, unlocked the glove compartment, and found a manila envelope inside. Upon opening the envelope, the officer found two bags of a substance he suspected was cocaine and arrested Davidson. A further search of the car revealed $207 in currency.

1. (a) Davidson first claims error in the denial of his motion to suppress because, he says, the stop of his car was made without a reasonable articulable suspicion of criminal activity. In Childress v. State, 251 Ga.App. 873, 874(1), 554 S.E.2d 818 (2001), the officer noticed a car that appeared to have run off the road. He did not see anyone near it and had not seen anyone walking before coming to it. Id. Accordingly, he continued in the direction he had been heading to see if the driver needed assistance. Id. After about two miles he came across the defendant and approached him without engaging his siren or emergency equipment. Id. at 874-875(1), 554 S.E.2d 818. As the defendant stood up, the officer noticed that he was unsteady on his feet. Id. at 875(1), 554 S.E.2d 818. The officer further observed that the defendant's speech was slurred, his eyes were red and glassy, and he smelled strongly of alcohol. Id. The defendant admitted that he had been driving the car the officer had seen and that he had run off the road. Id.

We held that this evidence showed that the officer's initial approach to the defendant was "solely to determine if he were a motorist in need of assistance" and that it therefore was a first-tier police-citizen encounter, which "provides no Fourth Amendment protection"—i.e., does not require a particularized and objective basis for suspecting criminal activity, as does a second-tier encounter. Childress, supra at 875-876(1), 554 S.E.2d 818. Similarly, here it appeared that Davidson was signaling to the officer that he was in need of some kind of assistance, and thus, as in Childress, the officer's initial approach to Davidson was "solely to determine if he were a motorist in need of assistance." Id. at 876(1), 554 S.E.2d 818. Accordingly, we find no merit to this claim of error.

(b) Davidson next contends that the trial court erred in denying his motion to suppress the cocaine evidence, arguing that it was obtained as a result of his illegal detention. We disagree.

As an initial matter, asking to see Davidson's license and proof of insurance upon his return from the tree line was permissible because an officer may ask to see such documentation during a first-tier police-citizen encounter. Davis v. State, 237 Ga. App. 890, 891, 517 S.E.2d 115 (1999). "Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual's identification; and request consent to search—as long as the police do not convey a message that compliance with their requests is required." (Citation omitted.) Stokes v. State, 238 Ga.App. 230, 232, 518 S.E.2d 447 (1999). The evidence does not reveal that the officer forced or coerced Davidson into complying with his initial requests. To the contrary, the questions asked and requests made were all part of a conversation that was consistent with a first-tier police-citizen encounter. See id. at 233, 518 S.E.2d 447.

The incident did, however, move from a first-tier to a second-tier encounter (requiring reasonable suspicion of criminal activity) after the officer removed Davidson's keys from the ignition, indicating that Davidson was no longer free to leave. Cf. Kelly v. State, 129 Ga.App. 131, 133(2), 198 S.E.2d 910 (1973) (defendant was not free to leave where officers approached a stopped vehicle brandishing a pistol and badge and asked for the keys). Even so, we find this court's decision in Warren v. State, 254 Ga.App. 52, 55(2), 561 S.E.2d 190 (2002), to be controlling and hold that the officer's actions were permissible in this case.

In Warren a police officer asked to see a driver's vehicle registration as a matter of routine. Id. at 52, 561 S.E.2d 190. The driver said that it was in a folder in the backseat, which seemed unusual to the officer, since, in his experience, most people keep their registration in the glove box. Id. at 52-53, 561 S.E.2d 190. When the officer approached the car and asked the passenger to hand him the vehicle registration, he noted that the passenger was extremely nervous and that he would not look at the officer or acknowledge him in any way, and when he opened the folder he began dropping papers on the floor and picking them up again. Id. at 53, 561 S.E.2d 190. The officer testified that the passenger was unusually nervous for a passenger; he described him as ...