Sherod v. State
| Decision Date | 03 November 2015 |
| Docket Number | No. A15A1460.,A15A1460. |
| Citation | 779 S.E.2d 94,334 Ga.App. 314 |
| Parties | SHEROD v. The STATE. |
| Court | Georgia Court of Appeals |
Jerry Mac Christian Pilgrim, Villa Rica, for Appellant.
Brian Keith Fortner, Rachel Dawn Ackley, for Appellee.
In this interlocutory appeal, Timothy Lewis Sherod challenges the trial court's denial of his motion to suppress evidence that was discovered after a traffic stop and subsequent search of the tractor-trailer he was driving. Sherod argues the court erred in denying his motion to suppress the evidence when (1) the traffic stop was unlawfully prolonged and lacked reasonable articulable suspicion, and (2) the drug-detection canine did not provide probable cause to search. For the reasons set forth infra, we affirm.
At the outset, we note that the Supreme Court of Georgia has reiterated three fundamental principles to follow in reviewing a ruling upon a motion to suppress. First, the trial judge sits as the trier of fact at a hearing on a motion to suppress.1 And because the trial judge hears the evidence, the judge's 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]."2 Second, the trial judge's decision with regard to questions of fact and credibility "must be accepted unless clearly erroneous."3 Finally, we (as the reviewing court) must construe the evidence "most favorably to the upholding of the trial court's findings and judgment."4
As to the first principle, our Supreme Court has further instructed that, "[t]o properly follow [it], we must focus on the facts found by the trial court in its order."5 And here, the trial court made no written findings of fact in its order denying the motion to suppress; however, the court orally announced its factual findings on the record at the conclusion of the hearing. As a result, we will now review those findings.6
We also note that the trial court's order reflects that its ruling was made "[u]pon consideration of all the evidence submitted, including testimony, documents, photos, and/or any other evidence that was admitted ...."7 The record shows that during the hearing, without any objection, the State played a video recording of the traffic stop to refresh the officer's recollection of events,8 and both the State and Sherod refer to this video in their appellate briefs and throughout their argument to the trial court below. Nevertheless, the video was not admitted into evidence at the hearing and, as a result, no video was transmitted with the record on appeal.9
Turning to the facts of this case, the evidence before the trial court consisted of testimony from the K–9 officer who conducted the traffic stop, and that testimony showed that the officer was patrolling Interstate 20 in Douglas County on September 28, 2013. At approximately 9:15 a.m., the officer encountered Sherod's tractor-trailer and noticed it weave over the white fog line two times, at which point the officer initiated a traffic stop with the intention of checking Sherod's logbook to ensure that he had received adequate rest.
Upon approaching the tractor-trailer, the officer saw only one occupant, Sherod, the driver. But the officer also observed that the curtains to the sleeping compartment were closed and, when he questioned Sherod as to why they were closed, Sherod responded that he had a co-driver who was lying down on the bunk.10 The officer then requested to see Sherod's license, logbook, and bill of lading, and he found it unusual when Sherod retrieved the documents from behind the sleeper curtain, keeping the curtain closed while doing so. He also observed that Sherod was nervous during this exchange, with heavy breathing and shaking hands.
After receiving the requested documents, the officer asked Sherod to exit the tractor-trailer while he reviewed them. Then, after Sherod had done so and was standing at the back of the truck, the officer walked back to the cab and asked to speak with the co-driver. As the co-driver emerged from the sleeper compartment, the officer noticed that he too kept the curtain tightly closed. Thereafter, the officer took the co-driver's license and logbook to review as well.
While reviewing the two logbooks, the officer noticed that on at least one occasion during the drivers' trip to and from California,11 both were listed as being off duty or in the sleeper compartment at the same time. The officer was suspicious of these notations because, in his experience, when a driver transports a load of perishable produce with a co-driver (as Sherod was doing), "the wheels never stop turning." Thus, the officer found it odd that during these periods, there were no notations that the truck was being loaded, unloaded, waiting to be loaded, or waiting for a warehouse to open when nobody was driving.
Specifically, the logbooks show that beginning at 1:00 a.m. on September 25, both drivers were in the sleeper compartment, with Sherod in the compartment for a 10–hour period and the co-driver in the compartment for a nearly 24–hour period. There was, then, at least a 10–hour period in which no one was driving the truck. Sherod apparently explained this as having occurred when a particular pickup destination closed early.12 But the officer thought this explanation strained credulity because, in his experience, logbooks generally note when a truck is waiting to be loaded or unloaded, or for a warehouse to open; and the officer found it hard to believe that the truck was not loaded until 11:00 a.m. after waiting all night to unload. Thus, according to the officer, this information in the logbooks, coupled with the drivers' nervous behavior related to keeping the sleeper-compartment curtain closed, caused him to "believe that there might be something else going on."
In addition to reviewing the logbooks, the investigating officer also asked another officer who arrived on scene to run a check on the drivers' licenses, and was advised that both individuals had prior criminal histories, with drug-related convictions on the part of the co-driver in 1994 and 1998.13 The officer also recalled that the load on the truck was not "sealed,"14 which he also found to be unusual. The officer explained that whether or not a load is sealed depends upon the shipping company, which means that it may or may not be unusual to find an unsealed load and that "there are occasions where it's not [unusual]." But "more times than not" with shipments of produce, even in situations with partial pickups at several locations, the load will be sealed between destinations.
After reviewing the logbooks, the officer decided to issue a written warning citation to Sherod.15 The officer testified that at the point when he returned Sherod's documents and issued the written citation, Sherod was not free to leave. And immediately after issuing the citation, the officer asked Sherod for consent to search the truck, which Sherod did not give. The officer then asked for permission to walk his K–9 dog around the truck, and when Sherod did not give consent for that either, the officer informed Sherod that he nevertheless intended to detain the drivers to walk the dog around the truck.
According to the officer, this detention—which occurred approximately 32 minutes after the initial stop began—lasted approximately two minutes because as soon as the K–9 was released from the patrol car and walked up to the truck, the dog alerted to the presence of illegal contraband and sat at the entrance to the sleeper compartment. Thereafter, a search of the sleeper compartment revealed two boxes and two large bags filled with more than 200 pounds of marijuana. The drivers were immediately arrested and later indicted for trafficking marijuana.
At the motion-to-suppress hearing, the officer explained that he decided to conduct a K–9 sniff due to the inconsistencies in the drivers' logbooks, Sherod and the co-driver's nervous/suspicious behavior, the fact that the truck's load was not sealed, the co-driver's criminal drug history, and the officer's years of drug interdiction experience. And at the conclusion of the hearing, the trial court denied the motion to suppress and found that, based upon the drivers' suspicious behavior related to the curtain on the sleeping compartment, the co-driver's criminal drug history, the inconsistency in the logbooks as compared to what the officer would normally expect to see, and the lack of a seal on the load, the officer had reasonable articulable suspicion of criminal activity so as to warrant further detention to conduct a K–9 sniff of the vehicle. We granted Sherod's application for interlocutory appeal, and this appeal follows.
1. Although Sherod's enumerations of error reflect a contention that "the trial court erred by holding that law enforcement did not unlawfully prolong the initial traffic stop to perform a search of the vehicle," his somewhat convoluted argument devoted to this enumeration asserts both that the initial stop was prolonged and that the officer lacked reasonable articulable suspicion of criminal activity to perform a K–9 sniff of the vehicle.16
On a motion to suppress contraband discovered during a search and seizure, the State bears the burden of proving that the search and seizure were lawful.17 Thus, on a motion to suppress evidence discovered during a traffic stop, "the State bears the burden of proving that the search of the car was lawful, and to carry this burden, the State must show that it was lawful to detain [the defendant] until the time the drug dog indicated the presence of drugs."18 With these guiding principles in mind, we will now address Sherod's contentions.
Sherod first argues that the investigating officer violated his Fourth Amendment19 rights by prolonging the traffic stop. The Supreme Court of Georgia has recently explained that there are two categories of claims that an officer illegally prolonged a traffic stop.20 In the...
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