State v. Drake

Decision Date24 June 2020
Docket NumberA20A0248
Citation355 Ga.App. 791,845 S.E.2d 765
Parties The STATE v. DRAKE.
CourtGeorgia Court of Appeals

James Bradley Smith, Paul A. Trifiletti, for Appellant.

James Wilson Smith, Athens, for Appellee.

Per Curiam.

The State appeals from an order of the Jackson County Superior Court granting a motion to suppress illegal narcotics discovered when, following a traffic stop, police conducted a search of Nickolas Brandon Drake's person. The State argues that in granting the motion to suppress, the trial court erred in finding: (1) that the search of Drake's person occurred as the result of police impermissibly prolonging the traffic stop; and (2) that police lacked a legal basis for expanding the scope of the traffic stop beyond its original purpose. For reasons explained more fully below, we find no error and affirm the trial court's order.

In reviewing a ruling on a motion to suppress, we bear in mind that the trial court functions as the trier of fact with respect to such a motion. Sherod v. State , 334 Ga. App. 314, 314, 779 S.E.2d 94 (2015). "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." Id. (punctuation omitted). Accordingly, on appeal from the grant or denial of a motion to suppress, this Court construes the evidence most favorably to uphold the findings and judgment of the trial court, and that court's findings as to disputed facts and credibility will be adopted unless clearly erroneous. Watts v. State , 334 Ga. App. 770, 771, 780 S.E.2d 431 (2015).

So construed, the evidence shows that Sergeant Christopher Holly of the Commerce City Police Department performed a traffic stop of a vehicle driven by Drake after witnessing an improper lane change. During that stop, police performed what they contended were consensual searches of Drake's car and person. Based on items discovered during those searches, Drake was arrested and charged with possession of oxycodone and morphine, as well as a violation of Georgia's open container law ( OCGA § 40-6-253 ).

Prior to trial, Drake moved to suppress the items found during the search of his car and person. Evidence presented at the hearing on that motion showed that while speaking with Drake at the outset of the traffic stop, Holly thought he smelled a faint odor of alcohol, indicating Drake may have been drinking. When a second Commerce police officer arrived at the scene, Holly asked that officer to speak with Drake to determine if she could smell alcohol.1 A third Commerce police officer came to the scene while Holly was writing a warning citation for Drake. At Holly's request, the third officer asked Drake if he would consent to a search of his car, and Drake agreed. The third officer then took over the process of writing the traffic citation as Holly and the second officer searched Drake's vehicle. Approximately nine minutes after the traffic stop began, and as the search of the car was being conducted, the third officer finished writing Drake's warning ticket. None of the officers, however, provided that citation to Drake.

During the search of the car, officers located a container of alcohol that was approximately one half full, as well as a white substance that, in Holly's opinion, resembled crack cocaine. Holly conducted a field test on the white substance, which did not produce a positive result for cocaine. Both the field test and the search of Drake's car were completed no more than 14 minutes into the traffic stop. At that time, however, Holly did not provide the traffic citation to Drake but instead asked for permission to search his person. Drake agreed and, at Holly's direction, emptied the contents of his pants pockets onto the trunk of his car. Holly then inquired about a bulge in a cargo pocket on the side of Drake's pant leg and then reached into the pocket, grabbing a small bottle that Drake acknowledged contained oxycodone and morphine.

Drake testified that he did not consent to the search of his car. He further stated that although he agreed to the search of his person, he did not feel that he had a choice, as he had not been told he was free to leave and he did not understand why he was being detained. Additionally, Holly stated that at the time he requested permission to search Drake's person, Drake was not free to leave the scene.

Following the hearing, the trial court entered an order denying Drake's motion in part and granting it in part. Specifically, the court denied that part of the motion relating to Drake's car, finding that Drake freely and voluntarily consented to that search. The court granted the motion, however, as it related to the search of Drake's person, finding that any consent Drake gave was neither voluntary nor freely given and was the result of an illegally prolonged traffic stop. In reaching this conclusion, the court rejected the State's argument that it had a reasonable basis for extending the traffic stop beyond its original scope. The State now appeals from that part of the order granting Drake's motion to suppress the items found during the search of his person.

1. The State asserts that the trial court erred in finding that the search of Drake's person resulted from an illegally prolonged traffic stop. We disagree.

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. Rodriguez v. United States , 575 U.S. 348, 356-357 (II), 135 S.Ct. 1609, 191 L.Ed.2d 492 (2015). A stop "justified only by a police-observed traffic violation, therefore, becomes unlawful if it is prolonged beyond the time reasonably required to complete the mission of issuing a ticket for the violation." Id. at 350, 135 S.Ct. 1609 (punctuation omitted). See also Illinois v. Caballes , 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) ; Daniel v. State , 277 Ga. 840, 841 (1), 597 S.E.2d 116 (2004).

Here, because police sought consent to search Drake's car shortly after initiating the traffic stop and before any traffic citation issued, that request did not impermissibly prolong the stop and, therefore, did not violate the Fourth Amendment. See Sommese v. State , 299 Ga. App. 664, 670 (1) (d), 683 S.E.2d 642 (2009) (a traffic stop was not illegally prolonged where the evidence showed "that the officer obtained consent to search [the] vehicle before he had completed the warning citation ... and there was no evidence that the officer lengthened the detention" in an effort to obtain consent). See also Salmeron v. State , 280 Ga. 735, 736 (1), 632 S.E.2d 645 (2006). The same cannot be said, however, for the search of Drake's person.

The evidence shows that the traffic citation had been written and therefore the purpose of the stop completed at least five to six minutes before police finished their search of Drake's vehicle. By seeking Drake's permission to conduct a second search after that time (and at least seven minutes after the completion of the traffic citation), the State "exceeded the scope of a permissible investigation of the initial traffic stop." State v. Felton , 297 Ga. App. 35, 37, 676 S.E.2d 434 (2009) (punctuation omitted). In other words, detaining Drake further to request consent to search his person violated his Fourth Amendment rights. Rodriguez , 575 U.S. at 356-357, 135 S.Ct. 1609 ; Heard v. State , 325 Ga. App. 135, 137-138 (1), 751 S.E.2d 918 (2013).

The State seeks to avoid this conclusion by arguing that Drake's consent to the search of his car "legally justifies any delay between the time necessary to fill out the citation and the time in which [Drake] granted consent to search his person." Put another way, the State argues that because Drake agreed to extend the traffic stop to allow for the search of his car, and because the consent to search Drake's person came shortly after the conclusion of the vehicle search, the traffic stop was not impermissibly prolonged. We disagree.

Drake's consent to the search of his vehicle at the outset of the traffic stop does not demonstrate that he agreed to be detained further, after that search was completed. Under these circumstances, once the...

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7 cases
  • Hill v. State
    • United States
    • Georgia Court of Appeals
    • 29 d2 Junho d2 2021
    ...has exceeded the scope of a permissible investigation of the initial traffic stop.") (punctuation omitted).6 State v. Drake , 355 Ga. App. 791, 793 (1), 845 S.E.2d 765 (2020), citing Rodriguez , 575 U. S. at 356-357 (II), 135 S.Ct. 1609.7 (Punctuation omitted.) Felton , 297 Ga. App. at 37, ......
  • Gayton v. State
    • United States
    • Georgia Court of Appeals
    • 3 d3 Novembro d3 2021
    ...(Emphasis in original.) Martin v. State , 316 Ga. App. 220, 226 (2), 729 S.E.2d 437 (2012). See also State v. Drake , 355 Ga. App. 791, 796 (2), 845 S.E.2d 765 (2020) ("[T]he mere fact that a person admits that at some point in his past he ‘got in trouble’ because of methamphetamine does no......
  • Gayton v. State
    • United States
    • Georgia Court of Appeals
    • 3 d3 Novembro d3 2021
    ... ... reasonable, articulable suspicion that the person is ... currently [committing the crime for which he was previously ... arrested]." (Emphasis in original.) Martin v ... State , 316 Ga.App. 220, 226 (2) (729 S.E.2d 437) (2012) ... See also State v. Drake , 355 Ga.App. 791, 796 (2) ... (845 S.E.2d 765) (2020) ("[T]he mere fact that a person ... admits that at some point in his past he 'got in ... trouble' because of methamphetamine does not provide a ... basis for suspecting that the person is somehow currently ... ...
  • McNeil v. State
    • United States
    • Georgia Court of Appeals
    • 19 d5 Novembro d5 2021
    ... ... "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." State v ... Drake, 355 Ga.App. 791, 793 (1) (845 S.E.2d 765) (2020) ... (per curiam), citing Rodriguez, 575 U.S. at 356-357 ... (II). And as the Supreme Court of Georgia has explained, ... "activities unrelated to the mission of the [traffic] ... stop must not extend the time of the stop at ... ...
  • Request a trial to view additional results

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