Hayes v. State

• Decision Date: 15 July 2008
• Docket Number: No. A08A0084.,A08A0084.
• Parties: HAYES v. The STATE.
• Court: Georgia Court of Appeals

665 S.E.2d 422

292 Ga.App. 724

HAYES v. The STATE.

No. A08A0084.

Court of Appeals of Georgia.

July 15, 2008.

Sidney L. Storesund, Marietta, for appellant.

Patrick H. Head, District Attorney, Erman J. Tanjuatco, Amelia G. Pray, Assistant District Attorneys, for appellee.

MIKELL, Judge.

Bruce Hayes appeals from his convictions for trafficking in cocaine and methamphetamine. In his sole enumeration of error, he contends that the trial court erred by denying his motion to suppress. We disagree and affirm.

In reviewing a trial court's order on a motion to suppress, we construe the evidence most favorably to uphold the court's findings and judgment.¹ The trial court sits as the trier of fact; its findings are akin to a jury verdict and will not be disturbed unless no evidence exists to support them.² As stated in State v. Lanes,³ "[we] cannot, and will not, usurp the authority of the trial judge to consider such factors as demeanor and other credibility-related evidence in reaching its decision."⁴

Bearing these principles in mind, we review the evidence adduced at the suppression hearing. On August 3, 2005, Georgia State Patrol Master Trooper Lorenzo Harris, who had twenty-nine years of experience, stopped Hayes after clocking him traveling ten miles per hour over the speed limit, by pacing behind Hayes at the same speed and by using radar. When the trooper approached Hayes, Harris first checked for his safety by observing Hayes's body language. Then Harris asked for Hayes's license, registration, and insurance, and explained to Hayes the reason that he was stopped. Harris observed that Hayes was very nervous. The trooper testified "that was an indicator to kind of alarm me to kind of, you know, become aware." While the trooper checked Hayes's license and registration, Hayes remained in his car. After checking Hayes's license and registration, the trooper asked Hayes to get out of the car and spoke with him before telling him that he planned to issue Hayes a warning ticket. The trooper testified that it was his practice to ask a motorist to step out of the car so he has "a better chance to see his entire body" and talk to him. When Harris asked Hayes why he was still so nervous after being told he would only get a warning, Hayes responded that "he couldn't help it." Approximately "thirty to forty-five seconds" after giving the warning ticket and returning the paperwork to Hayes, the trooper asked for and received Hayes's consent to search his car. The trooper testified that he read Hayes the Miranda warning before the video camera that taped the traffic stop. The videotape was played for the trial court and has been included in the record on appeal.

The videotape shows the trooper getting out of his patrol car and walking to the front passenger window of Hayes's car. The officer talked with Hayes for approximately one minute before walking back to his patrol car with paperwork he obtained from Hayes. Approximately seven minutes later, the trooper walked back to the front passenger window of Hayes's car and said something very briefly that cannot be heard on the videotape. Hayes exited his vehicle approximately three seconds later. The trooper and Hayes then talked for approximately one minute before they walked off camera. The trooper started searching the car nine minutes after Hayes exited the car. The videotape time counter shows that the trooper started searching Hayes's car at "2204:18." The written consent form signed by Hayes states that it was signed at "10:15 p.m. (2215 HRS)." The stipulated evidence at Hayes's bench trial shows that the trooper found 55.6 grams of cocaine and 55.76 grams of methamphetamine in a bag in the rear floorboard of Hayes's car.

In its written order denying Hayes's motion to suppress, the trial court made the following findings:

After checking the Defendant's license and running the tag, Trooper Harris returned to the car and informed the Defendant he was giving him a warning. Trooper Harris testified that in his experience, once he told a driver he or she was only receiving a warning, any nervousness usually ceased. Trooper Harris testified that the Defendant was still extremely nervous and his hands were shaking.

Because of the Defendant's continued nervous behavior, Trooper Harris asked the Defendant to get out of the car, at which time he returned the Defendant driver's license and other paperwork. Within 30 seconds of returning the Defendant his documentation, Trooper Harris asked for the Defendant's consent to search the vehicle.

The trial court concluded that Harris had probable cause to make the traffic stop based on his observance of a traffic violation. The court further concluded that, because the trooper asked for consent "almost contemporaneously" with the return of Hayes's paperwork, the request for consent to search his car did not unlawfully prolong the detention. On appeal, Hayes challenges both of these rulings.

1. Hayes argues that the state trooper did not have probable cause to stop him because he was not traveling more than ten miles per hour over the speed limit. In support of this argument, Hayes cites OCGA § 40-14-8(a), which provides:

No county, city, or campus officer shall be allowed to make a case based on the use of any speed detection device, unless the speed of the vehicle exceeds the posted speed limit by more than ten miles per hour and no conviction shall be had thereon unless such speed is more than ten miles per hour above the posted speed limit.⁵

Because the master trooper who initiated the stop was a member of the Georgia State Patrol, he was not bound by OCGA § 40-14-8(a), which expressly applies only to "county, city, or campus officers."⁶ Accordingly, this argument fails.

2. Hayes claims that the trial court erred in refusing to suppress the evidence against him because his consent to search was the product of an impermissibly prolonged detention. Specifically, Hayes argues that the traffic stop ended before Harris asked for his consent to search, and that absent consent or a reasonable suspicion of further criminal activity, his "continued detention" was prohibited by the Fourth Amendment.⁷ Based on controlling federal and state authority, we disagree.

In Salmeron v. State,⁸ our Supreme Court rejected the defendant's assertion that his detention was prolonged when the officer asked him to get out of the car and ruled that the trial court correctly denied his motion to suppress.⁹ The Court reasoned:

[T]he dispositive factor in this case is not the nature or subject of the officer's questioning, but whether that questioning took place during Salmeron's otherwise lawful detention for committing the traffic violations in the officer's presence. If a driver is questioned and gives consent while he is being lawfully detained during a traffic stop, there is no Fourth Amendment violation. [Cit.] However, a seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.¹⁰

The final, conditional sentence is a direct quotation from a United States Supreme Court case, Illinois v. Caballes.¹¹ This statement, although it may be true, is dictum, because prolonged detention was not an issue on certiorari. The Supreme Court accepted "the state court's conclusion that the duration of the stop ... was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop."¹²

The issue, the validity of a consent to search given during a traffic stop, is a "difficult" area of the law and one which has caused "much confusion ... in the real world."¹³ The differences of opinion among the Judges of this Court about the issue reach back at least to two whole court opinions issued in 2001, State v. Gibbons¹⁴ and Berry v. State.¹⁵ However, later decisions by the Supreme Court of Georgia and the United States Supreme Court have clarified many of the rules and have called into question the validity of some of our earlier decisions.¹⁶ Our recent decision, Cuaresma v. State,¹⁷ holding that the prolonged detention was not warranted because appellants' consent to search was obviously coerced, is completely correct. However, Cuaresma cites Daniel v. State¹⁸ without noting that Daniel was subsequently deemed "not viable" by Salmeron.¹⁹ Further, Cuaresma cites State v. McMichael,²⁰ a case which predates Salmeron and relies on Daniel. Finally, Cuaresma apparently relies upon, without citing, the following misleading dictum from a special concurrence in Gibbons:²¹ "[a] police officer who stops a motorist for a routine traffic violation is not permitted to expand the detention into a fishing expedition for evidence of unrelated offenses."²² Actually, a police officer is absolutely permitted to expand the detention into unrelated offenses. The officer may question the motorist about anything and may ask for consent to search, as long as the questioning does not unreasonably prolong the detention, as explained, with dismay, by the dissent in Salmeron: "Today, th[e] ... standard ... allows any and all manner of interrogation, unrelated to the initial purpose of the traffic stop, so long as the questioning does not prolong the ... traffic stop."²³

Certain rules, deriving from an amalgamation of Muehler v. Mena,²⁴ a United States Supreme Court decision, and Salmeron,²⁵ a Supreme Court of Georgia opinion, appear to have evolved governing the validity of searches pursuant to consent when the consent is requested during or after a traffic stop. These rules presume the validity of the initial traffic stop based on probable cause or at least a reasonable, articulable suspicion of criminal activity.²⁶ The rules pertain only to federal constitutional objections pursuant to the Fourth Amendment, as there do not seem to be any cases applying the Georgia Constitution to consent searches during or after a traffic...