Rogers v. State, A92A1028

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: SOGNIER; McMURRAY, P.J., and COOPER
• Citation: 426 S.E.2d 209,206 Ga.App. 654
• Parties: ROGERS v. The STATE.
• Docket Number: No. A92A1028,A92A1028
• Decision Date: 23 November 1992

Page 209

426 S.E.2d 209

206 Ga.App. 654

ROGERS v. The STATE.

No. A92A1028.

Court of Appeals of Georgia.

Nov. 23, 1992.

Reconsideration Denied Dec. 8, 1992.

Certiorari Denied March 4, 1993.

Lane & Crowe, Grayson P. Lane, Brunswick, for appellant.

W. Glenn Thomas, Jr., Dist. Atty. and Kevin R. Gough, Asst. Dist. Atty., for appellee.

SOGNIER, Chief Judge.

Neil Rogers pled guilty to possession of cocaine with intent to distribute, and he appeals, contending the trial court erred by denying his motion to suppress. The record reflects that the trial court sufficiently indicated its exercise of discretion to accept appellant's plea of guilty on the condition that he preserved his right to appeal the ruling on his motion to suppress. Springsteen v. State, 206 Ga.App. 150, 424 S.E.2d 832 (1992).

"When we review a trial court's decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court's findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them. [Cits.]" State v. Corley, 201 Ga.App. 320, 411 S.E.2d 324 (1991). The trial court heard testimony by Glynn County Police Officer Jonathan Bunn that while on routine patrol around 6 a.m. on January 12, 1990, he observed a van parked near a dumpster in an unlit area behind an open gasoline station adjacent to the Highway 17 exit off Interstate 95. Bunn testified that the police "always check out any vehicles we see" in that area because it was a known drug trafficking area. As Bunn drove past the van, he saw a man exit the van, look around, spot Bunn's patrol car, then "very quickly" reenter the van. Bunn saw another person's head "stick up out the end" of the van and then go back down and not reappear. The van had a temporary Maryland license plate.

Bunn testified that based on these events he parked behind the van and that appellant opened the van's door in response to the officer's knock. At Bunn's request appellant stepped outside and produced a Virginia driver's license and other documentation ¹ for the van, which appellant told Bunn belonged to him. Appellant also informed Bunn that he and his daughter, the other passenger in the van, had stopped in order to rest on their trip from a family reunion in Florida to their home in the Washington, D.C. area.

Shortly after Bunn initiated contact, appellant became so noticeably and extremely nervous that Bunn asked twice about the reason for the nervousness but was given no explanation. Appellant also repeated himself when answering Bunn's questions. Bunn took appellant's driver's license and registration and began a computer check on their validity. While the check was in progress and while still retaining appellant's documents, Bunn returned to the van and continued questioning appellant, but did not discuss any possible parking, loitering, or traffic charges. Bunn testified that he "had a question" about the temporary license plate but "at that point, [I] didn't really honestly think anything was--you know, that the vehicle was stolen or anything. I just--basically who they were, what they were doing over in the dark area next to a business out in a very bad area. At that point, when I started talking with him and he kept repeating himself and he was getting more and more nervous, then I started feeling that something was wrong."

Bunn testified that because appellant was "getting more nervous," he asked appellant if he had any drugs or weapons on him. After appellant responded negatively, he seemed to become even more nervous. Bunn then asked appellant whether he would consent to a search of the van, explaining that the area was a high crime and drug area. Bunn was alone, his weapon was not drawn, and he did not threaten appellant or tell him he could not leave. Bunn testified that he produced a written consent form, on which he wrote a description of the vehicle, along with its tag and vehicle identification numbers, and gave it to appellant to read and sign, which appellant did. Bunn asked appellant's daughter to step outside the van and stand in the headlights of the patrol car, which she did. Bunn testified he then asked if he could search appellant's person and explained to appellant that his reason for doing so was for Bunn's safety, since it was early and Bunn was alone. Bunn testified that appellant "said he understood." Appellant emptied his right pants pocket but not his left pocket, in which Bunn observed a "very noticeable bulge." When Bunn inquired about the bulge, appellant started to step away but Bunn grabbed his arm and ordered him to remove the object in the pocket "very slowly" because Bunn "thought it was a weapon." Appellant produced a brown bag, which Bunn ordered him to drop, and as Bunn reached for it, appellant asked Bunn "if we could make a deal." Bunn looked inside the bag and found 35 small zip-lock plastic bags containing what was later ascertained to be crack cocaine. Bunn then arrested appellant. Bunn testified that after appellant was informed of his rights, he stated that his daughter knew nothing about the cocaine and that his intention had been to sell the cocaine because he was just an occasional user of the drug.

Appellant testified that he is a Washington, D.C. contractor and a native English speaker who graduated from technical colleges in England and has lived in the United States for approximately 20 years. He testified that he could not have moved his van "[w]ithout some problems" after Bunn parked behind him; that he asked for the return of his driver's license but Bunn told him he had not finished with it; that he did not ask Bunn to move the patrol vehicle "because I wasn't free to go"; that Bunn told him he did not have to sign the written consent to search the van; that he agreed "because I figured he would have searched anyway"; and that Bunn did not ask but instead told appellant he would search appellant's person "for his own safety." Appellant denied making any statements after Bunn discovered the cocaine.

The trial court denied appellant's motion to suppress, finding that under the totality of the circumstances appellant's consent to search was not invalidated by the retention of his driver's license and registration and that Bunn's frisk of appellant's person was reasonable under the circumstances.

1. Contrary to appellant's contention, it is well established that Officer Bunn was not required to have an "articulable suspicion" before he could approach appellant's stopped vehicle and talk with him. Communications between police and citizens involving no coercion or detention are outside the domain of the Fourth Amendment, O'Donnell v. State, 200 Ga.App. 829, 831, 409 S.E.2d 579 (1991), and no seizure requiring a reasonable suspicion of unlawful activity occurs simply because a police officer approaches an individual and asks a few questions. State v. Westmoreland, 204 Ga.App. 312, 313(1), 418 S.E.2d 822 (1992), applying Florida v. Bostick, 501 U.S. 429, ----, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389, 398 (1991). See State v. Bryant, 203 Ga.App. 69, 70-71, 416 S.E.2d 368 (1992). Given the time of the incident, the location of appellant's van, and the movement of appellant and his daughter as Bunn's patrol car passed the van, we find that Bunn's action in approaching the van and talking with appellant, including his request to see appellant's driver's license, constituted the type of routine traffic inquiry we held in O'Donnell, supra, not to intrude upon any constitutionally protected interest. Id. 200 Ga.App. at 831-832, 409 S.E.2d 579.

2. Appellant contends that after Officer Bunn approached and talked to him, the encounter ceased being consensual and became a seizure for purposes of the Fourth Amendment when Bunn requested and retained appellant's driver's license and registration. "A person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." (Citations and punctuation omitted.) O'Donnell, supra. The United States Supreme Court has further explicated the seizure test: "[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer['s] requests or otherwise terminate the encounter." Florida v. Bostick, supra, 501 U.S. at ---- - ----, 111 S.Ct. at 2389, 115 L.Ed.2d at 401-402. See Westmoreland, supra, 204 Ga.App. at 313-314(2), 418 S.E.2d 822.

An officer conducting a routine traffic stop may request and examine a driver's license and vehicle registration and run a computer check on the documents. See United States v. Guzman, 864 F.2d 1512, 1519 (10th Cir.1988). Accord Florida v. Royer, 460 U.S. 491, 501-502, 103 S.Ct. 1319, 1326-1327, 75 L.Ed.2d 229 (1983) (airline ticket and driver's license). However, the evidence is uncontroverted Bunn did more than simply request, examine, and run a computer check of appellant's license. While retaining appellant's documents Bunn asked questions of appellant that did not relate to any traffic or parking violations but instead probed into appellant's possession of contraband or weapons and culminated in the officer's request to search both appellant's van and his person.

Considering all the circumstances surrounding the encounter, Florida v. Bostick, supra, we agree with appellant that when Bunn retained appellant's license, the encounter matured into an investigative stop protected by the Fourth Amendment. See United States v. Thompson, 712 F.2d 1356, 1359-1361(II) (11th Cir.1983) ("[a] reasonable person [whose driver's license has been retained by a police officer]...