Hammont v. the State.

• Decision Date: 21 April 2011
• Docket Number: No. A11A0094.,A11A0094.
• Citation: Hammont v. the State., 309 Ga.App. 395, 710 S.E.2d 598 (Ga. App. 2011)
• Parties: HAMMONTv.The STATE.
• Court: Georgia Court of Appeals

309 Ga.App. 395

710 S.E.2d 598

11 FCDR 1372

HAMMONT

v.The STATE.

No. A11A0094.

Court of Appeals of Georgia.

April 21, 2011.

Philip Daniel Price, for appellant.David Lee Cannon Jr., Sol.–Gen., for appellee.DILLARD, Judge.

Jonathan Thomas Hammont was convicted in a bench trial of possessing less than one ounce of marijuana. Prior to his conviction, Hammont moved to suppress evidence on the basis that law enforcement had no probable cause or reasonable articulable suspicion to search for drugs during the traffic stop that eventually led to his arrest. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the trial court's judgment and findings, ¹ the record shows that Hammont was the passenger in a vehicle driven by his friend, Eric Schwartz. Unbeknownst to them, a county drug squad had issued a “be on the lookout” (BOLO) for the silver Pontiac Grand Prix driven by Schwartz because the squad had reason to believe that Schwartz and Hammont were involved in the illegal sale and use of prescription narcotics. As the two men were driving, they were spotted by an officer who had received the BOLO and knew that the vehicle was suspected to be in the residential area he was patrolling.

The officer pulled behind Schwartz's vehicle, paced it, noticed it was traveling at 40 miles per hour in a 35–mile–per–hour zone, and subsequently pulled the car over. After the officer activated his emergency equipment, Schwartz continued driving for “quite a while,” passing what were, in the officer's opinion, reasonably safe locations to stop. And when the vehicle eventually stopped and the officer approached, he noticed that Schwartz was “very nervous,” that his hands were shaking, and that he would not make eye contact with the officer. Based on the BOLO the officer had received from the drug squad, Schwartz's nervous behavior, the amount of time that passed before the vehicle pulled over,² and the fact that Schwartz eventually stopped the vehicle adjacent to bushes,³ the officer believed Schwartz and Hammont were engaged in drug activity.

Thereafter, the officer asked Schwartz for consent to search the vehicle, which was granted. During the course of this search, the officer discovered marijuana residue in the ashtray and in the passenger seat (where Hammont had been sitting) and rolling papers between the center console and the passenger seat. Hammont also consented to a urine test, which tested positive for marijuana use.⁴

Prior to his bench trial, Hammont moved to suppress the evidence obtained through the traffic stop on the ground that his detention was illegally expanded due to the officer's conversion of a routine traffic stop into a drug search without the requisite reasonable suspicion of other illegal activity. The trial court, however, found that the officer had reasonable, articulable suspicion to search Schwartz's vehicle for drugs and, in conjunction with its decision to convict Hammont, it denied the motion to suppress. This appeal follows.

In reviewing a trial court's decision on a motion to suppress, we construe the evidence “most favorably to uphold the findings and judgment, and the trial court's findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous.” ⁵ Further, “because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them.” ⁶ However, when evidence is “uncontroverted and no question of witness credibility is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review.” ⁷

On appeal, Hammont contends (as he did below) that his detention “was illegally extended due to the State's conversion of a routine traffic stop into a drug search absent the requisite reasonable suspicion of other illegal activity.” ⁸ We disagree.

First, the stop of Schwartz and Hammont was valid. The officer's observation that Schwartz's vehicle was traveling 40 miles per hour in a 35–mile–per–hour zone authorized him to initiate the traffic stop.⁹ Moreover, the officer was on the lookout for Schwartz's vehicle based on information relayed by the county drug squad, and he stopped the vehicle for a legal reason—i.e., the vehicle was speeding. And when an officer observes a traffic offense, the resulting traffic stop does not violate the Fourth Amendment “even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances.” ¹⁰

Second, the stop was not illegally extended because “it does not matter whether the request to search comes during the traffic stop or immediately thereafter.” ¹¹ Indeed, the record shows that the officer asked Schwartz for his driver's license and insurance upon approaching the vehicle, and it was at this point the officer observed that Schwartz refused to make eye contact and was noticeably shaking. After inquiring as to why Schwartz had taken so long to pull over, the officer asked for and received consent to search the vehicle. As the trial court correctly noted, there was no illegal detention “because [the questioning] was almost instantaneous,” and “all indications are that the search of the vehicle was by consent of the driver.” And even when there is no basis for an officer to suspect that a person detained at a traffic stop is engaged in criminal activity unrelated to the stop, “police may lawfully ask questions during the course of the stop about such unrelated activity, so long as the questioning does not prolong the stop beyond the time reasonably required to complete the purpose of the traffic stop.” ¹² And here, there is no evidence that the officer's questions prior to receiving Schwartz's consent imposed any substantive delay in the traffic stop of his vehicle.

Accordingly, for the foregoing reasons, we affirm the trial court's denial of Hammont's motion to suppress.

Judgment affirmed.

FN1. See,...