Hill v. State

• Decision Date: 29 June 2021
• Docket Number: A21A0264
• Citation: 859 S.E.2d 891,360 Ga.App. 683
• Court: Georgia Court of Appeals
• Parties: HILL v. The STATE.

360 Ga.App. 683

859 S.E.2d 891

HILL

v.The STATE.

A21A0264

Court of Appeals of Georgia.

June 29, 2021

Reconsideration Denied July 14, 2021

Michael Edmund Harty, Norcross, Greg Willis, for Appellant.

David Parks White, Jeffrey Cole Lee, for Appellee.

Doyle, Presiding Judge.

In this interlocutory appeal, Thomas Hill appeals from the denial of his motion to suppress evidence obtained during a traffic stop pursuant to a search after he gave police consent.He contends that the trial court erred because his consent to the police officer's search of his vehicle was not voluntary, arguing that the officer's request for consent occurred while a reasonable person would have believed he was still detained.Therefore, he argues, his consent was not voluntary, and the request to search was an unauthorized extension of the traffic stop.Based on the facts of this case, we agree and reverse.

When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts.This principle is a settled one, and [the Supreme] Court has identified three corollaries of the principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts.First, an appellate court generally must accept those findings unless they are clearly erroneous.Second, an appellate court must construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court.And third, an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court.¹

Viewed in this light, the evidence at the suppression hearing,² shows that in October 2017, Corporal Colt Young, a sheriff's deputy, was on patrol when he observed Hill driving a black 2004 Acura at an excessive speed, clocking Hill on his police radar at 87 miles per hour in a 55 mile per hour zone.Young performed a u-turn, activated his emergency lights, and pursued Hill, who pulled over shortly thereafter.Young informed dispatch that he was executing a traffic stop at 12:44 p.m., and by 12:46 p.m., Young had made contact with Hill on the side of the road.

As Hill sat in his vehicle, Young told him that he had pulled him over for speeding and requested Hill's driver's license.Hill complied, and Young noticed that Hill was breathing heavily, he could see Hill's heartbeat through his shirt, and Hill would not make eye contact.Young asked Hill if he was ok, and Hill replied that "he was just worried about how much the ticket [would] cost."Young took Hill's license and registration back to his police cruiser and radioed the driver's license and vehicle tag information to dispatch to check the validity and to determine if Hill had any outstanding warrants.Young did not have a computer in his cruiser at that time, so he relied on dispatch to check Hill's license and registration information.Also at that time, Young called for any nearby officers to provide backup due to Hill's apparent nervousness.Two minutes later, at 12:48 p.m., Sergeant Scottie Waldrip responded that he was en route to meet Young.

As Young communicated with dispatch from his cruiser, he realized that there was a discrepancy in the registration information that dispatch was giving him about the make and year of the vehicle driven by Hill.Due to static in the radio communications, dispatch eventually communicated with Young by cell phone, and by 12:57 p.m. it was determined that dispatch had entered the wrong tag number, and the discrepancy had been resolved.

As Young finished writing the citation in his cruiser, Sergeant Waldrip arrived at 12:59.Once Young was finished writing the citation a few minutes later,³he approached Hill's vehicle and asked him to exit and stand at the back of his vehicle.Hill complied, and Young patted him down to determine the presence of any weapons.Finding none, Young then explained the citation to Hill, advised him of his court date, and handed him the citation along with his license and registration.At that point, Young considered the traffic stop to be over, but he did not expressly tell Hill that he was free to leave.Immediately after handing Hill the citation and his license, Young asked Hill "if there was anything illegal inside the vehicle."Hill replied, "no," and then Young asked Hill if he could search Hill's vehicle, and Hill replied, "go ahead."

Young searched Hill's vehicle and discovered a plastic bag containing approximately 28.3 grams of a white powder he suspected to be cocaine; at 1:07 p.m., he radioed dispatch to report that he was detaining Hill while he field tested the substance.Two minutes later, after receiving a positive result for cocaine, Young arrested Hill at 1:09 p.m.

Hill was indicted for trafficking in cocaine, possessing cocaine with intent to distribute, and speeding.He moved to suppress the evidence from the traffic stop, which motion was denied (as was a renewed motion), and the trial court issued a certificate of immediate review.This Court granted Hill's application for interlocutory review.

1.Hill contends that the trial court erred because his alleged consent to the search was not voluntarily given at a time when a reasonable person would have appreciated that the roadside encounter had become consensual.Based on the record before us, we agree.

We begin with the Fourth Amendment principles relevant to the traffic stop.As the United States Supreme Court has clarified,

[a] seizure for a traffic violation justifies a police investigation of that violation....Authority for the seizure thus ends when tasks tied to the traffic infraction are — or reasonably should have been — completed....Beyond determining whether to issue a traffic ticket, an officer's mission includes ordinary inquiries incident to the traffic stop.Typically such inquiries involve checking the driver's license, determining whether there are outstanding warrants against the driver, and inspecting the automobile's registration and proof of insurance.[Further,] traffic stops are especially fraught with danger to police officers, so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely.On-scene investigation into other crimes, however, detours from that mission.⁴

Thus, "[o]nce the purpose of [the traffic] stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention."⁵"The United States Supreme Court has held unequivocally that the Fourth Amendment does not allow even a de minimis extension of a traffic stop beyond the investigation of the circumstances giving rise to the stop."⁶"It is the unsupported additional detention, not police questioning, which constitutes the Fourth Amendment violation."⁷

With respect to a consensual search arising from a traffic stop, "[t]he State bears the burden of proving that a defendant's consent to search is valid — i.e., that it was given freely and voluntarily."⁸To determine whether an authorized detention has de-escalated into a consensual encounter, such that consent to search is voluntarily given, the inquiry is an objective one, which we review de novo.⁹

"The appropriate inquiry is whether a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter.Mere acquiescence to the authority asserted by a police officer cannot substitute for free consent."¹⁰

Various courts have recognized a number of circumstances that bear on whether a reasonable person would have felt free to leave, including:

the existence and nature of any prior seizure; whether there was a clear and expressed endpoint to any such prior detention; the character of police presence and conduct in the encounter under review ([e.g.,] the number of officers, whether they were uniformed, whether police isolated subjects, physically touched them or directed their movement, the content or manner of interrogatories or statements, [etc.]); geographic, temporal and environmental elements associated with the encounter; and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search.¹¹

"The voluntariness of consent is determined by the totality of the circumstances; no single factor controls."¹²

Here, the dispositive facts are undisputed, and we accept the trial court's findings as adequately supported by the record.Those facts show that after Hill was pulled over, Young called in a second officer to be present at the scene due to Young's belief that Hill was engaged in criminal activity based on Hill's nervousness.As Hill waited in his vehicle for Young to complete the tasks associated with the traffic stop (calling dispatch, checking the validity of his license and vehicle registration, and writing the citation), a second officer arrived and remained on the scene, communicating briefly with Young.¹³When Young approached Hill to hand him the citation, he requested that Hill exit the vehicle and stand with him at the rear of the vehicle with the second officer nearby.Then Young patted down Hill to search for weapons.Although requesting Hill to exit his vehicle and pat him down ordinarily would not exceed Young's authority to conduct the traffic stop,¹⁴ Young candidly testified that he did so at the end of the stop because he was "trying to determine if something else was going on other than speeding."Young was transparent about the fact that from the moment he initially encountered Hill, he believed "there was possibly another crime afoot."The Supreme Court of Georgia has, at least in dicta, recognized the nuance here: "a marginally burdensome inquiry that promotes the officer's safe completion of the traffic-stop mission, and is not done merely to facilitate a detour into some non-mission related task , is a...