State v. Hanson, A99A2256.

• Decision Date: 27 March 2000
• Docket Number: No. A99A2256.,A99A2256.
• Citation: 243 Ga. App. 532,532 S.E.2d 715
• Parties: The STATE v. HANSON et al.
• Court: Georgia Court of Appeals

532 S.E.2d 715

243 Ga. App. 532

The STATE v. HANSON et al.

No. A99A2256.

Court of Appeals of Georgia.

March 27, 2000.

Reconsideration Denied April 13, 2000.

Stephen D. Kelley, District Attorney, James J. Presswood, Jr., Assistant District Attorney, for appellant.

James J. McGinnis, Mark J. Kadish, Atlanta, for appellees. BLACKBURN, Presiding Judge.

The State appeals the trial court's grant of James Hanson and Deborah Sue Huddleston's motion to suppress evidence of marijuana found during a vehicle search following a traffic stop. Driver Hanson, who was not in violation of any traffic law, was stopped by Deputy Fred Sutton of the Camden County Sheriff's Department to check upon his physical condition, as he purportedly was weaving within his traffic lane. The court determined that the deputy's testimony was not credible and that the police conduct of the stop amounted to a ploy to create a basis to search defendants' vehicle where probable cause was lacking. We affirm.

Following a search of the vehicle and Huddleston's purse, driver Hanson and passenger Huddleston were each charged with one count of violation of the Georgia Controlled Substances Act, possession of marijuana with intent to distribute.

It was stipulated at the hearing that the hand-rolled cigarette found in defendant Huddleston's purse contained less than one ounce of marijuana and that the trunk of the vehicle contained 11.3 pounds of marijuana.

The defendants filed a motion to suppress all statements made by them and any evidence seized from the vehicle based on violations of the defendants' Fourth and Fifth Amendment rights. The trial court granted defendants' motion following a hearing, holding inter alia:

FINDINGS OF FACT

1. The vehicle driven by Defendant Hanson was observed weaving within its lane of traffic by a Camden County Deputy Sheriff who was working traffic on Interstate Highway 95.

2. Said vehicle promptly pulled over when the officer activated his vehicle's blue light.

3. The officer spoke with Defendants. While out of their hearing, he commented (for purposes of the videotape) that they appeared to be very nervous. Defendant Hanson told the officer he was a musician. He had long hair and a full beard. The vehicle had tinted windows.

4. The officer testified that he smelled marijuana when he was near the passenger area of the vehicle. He did not make a "verbal note" of that observation for the videotape, although he made such verbal notes for the videotape on less significant matters. The inclusion of an assertion in the officer's report that he smelled marijuana is not persuasive in light of the officer's obvious effort to inject relevant comments sotto voce, which convinces the Court the officer's testimony on that issue is not credible.

5. The officer found no evidence of intoxication or other basis for detaining Defendants.

6. The officer informed the Defendants that his investigation of the cause of their vehicle's weaving had ended, and after admonishing them to get some rest if they were tired, he informed Defendant Hanson that they were free to go. Mr. Hanson proceeded to the door of his vehicle and grabbed its handle.

7. The officer then directed Defendant Hanson to halt his departure from the scene.

8. As part of this new encounter with Defendants, the officer requested and received consent to search the vehicle.

9. Marijuana was found in the vehicle.

CONCLUSIONS OF LAW

1. There was probable cause for a brief investigatory stop of Defendants' vehicle due to the officer's observation it was weaving in its lane of traffic. Semich v. State, 234 Ga.App. 89 (1998).

2. The public has a right to be free from "profiling" and persons who exhibit physical and/or occupational characteristics thought to make them more likely to be violating the law than citizens in general cannot be subjected to differing law enforcement standards.

3. While the presence of certain characteristics may justify reasonable suspicion sufficient to support a brief investigatory detention, Murphy v. State, 230 Ga.App. 365 (1998), that detention must have a distinct ending point which is ascertainable to both the officers charged with enforcing the law and the citizens whom they encounter. This is essential because the concept that a person is free to leave the scene of a brief investigatory detention when that detention has ended will be stripped of its significance if officers feel the best method of inducing consent to a search is to notify the person detained that the encounter had ended, while in the mind of the officer there is a reason for further investigation of possible criminal offenses but no legal basis for additional detention of the subject. A rule of law which would encourage officers to tell citizens that the reason for their brief detention has ended while in fact the officer is planning to extend the encounter for the purpose of securing evidence of criminal offenses would encourage disrespect for the law.

4. The investigatory encounter authorized by the officer's observation of the weaving of Defendants' vehicle ended when the officer told Defendant Hanson he was free to leave and said Defendant left the location where he had spoken with the officer and put his hand on his vehicle door.

5. The conversation between Defendants and the officer, which disclosed that Defendant Hanson was a professional musician, the fact that said Defendant had long hair and a full beard, and the fact he was driving a vehicle with tinted windows and appeared to be nervous did not constitute probable cause for an additional investigatory encounter.

6. The consent of Defendants to a search of the vehicle was obtained outside the scope of a permissible investigatory encounter with a law enforcement officer. It was the product of an improper restriction placed upon their freedom of movement, because it occurred after the justifiable restriction on their freedom of movement warranted by the investigative stop for weaving had been terminated, pursuant to the officer's representation that the encounter had ended. The officer therefore had no legal basis for ordering Defendant Hanson to interrupt his departure from the scene after he had begun to do so.

Order, Camden Superior Court, dated June 9, 1999, filed June 10, 1999.

The trial court granted the State's motion to reopen the record and permit tender of the videotape viewed by the court at the hearing on the motion to suppress, as the court's decision was based primarily upon its consideration of that evidence, but otherwise denied the State's motion for reconsideration, providing inter alia:

After considering the State's motion for reconsideration the Court finds said motion to be without merit. The foundation of the Court's decision granting the motion to suppress was not the propriety of the traffic stop of Defendants' vehicle, or the brief encounter that ensued as a result of that stop. The Court found that said encounter terminated when the officer told Defendant Hanson he and the vehicle were free to leave, and Defendant Hanson did in fact leave the scene of the encounter with the officer and return to the door of the vehicle. The officer's subsequent order that Mr. Hanson stop, after he had placed his hand on the door of the vehicle, was a subsequent, compelled encounter, and an interference with Defendants' freedom of movement and liberty which was not supported by probable cause.

If, as a result of the initial encounter resulting from the officer's observation the vehicle was weaving within its lane of traffic, he had directed Defendants to remain on the scene until a drug dog could be summoned to conduct a free air search around the vehicle, a different question would be presented. The Court would be required to determine if the evidence adduced by the officer during the encounter constituted probable cause for detaining Defendants beyond a period which was reasonable for a brief investigatory stop. But that is not what occurred. Informing citizens whose liberty has been interrupted by a traffic stop that they are free to resume their trip cannot be permitted to be a tactical ploy designed to increase the probability an officer's request for consent to search a vehicle will be granted. If an officer determines there is no basis for continuing a brief investigatory encounter, he or she is authorized to request consent to a vehicle search as part of that encounter. But when, as in this case, an officer unequivocally terminates an encounter and releases the subjects from the scene, their departure cannot be halted by the officer's command to submit to additional questioning, even if that questioning is limited to a request for a vehicle search, in the absence of probable cause for an additional detention.

The State contends that probable cause existed to detain Defendants because of their nervousness, which the officer noted for the videotape record, and the allegedly inconsistent descriptions of where Defendants had been prior to the traffic stop. However, probable cause is not the issue presented in this case, because as noted above there was nothing improper about the officer's decision to make a brief investigation into the cause of the vehicle's weaving in its lane of traffic. The Court found, in essence, that the officer properly evaluated what he learned during his brief investigatory encounter with Defendants and concluded that there was no probable cause to detain them further. It was, however, an improper infringement on Defendants' liberty to command them to interrupt their departure from the scene, because that departure had been authorized by the officer and nothing occurred between it and the officer's order that Defendant Hanson stop and respond to additional questioning.

Order, Camden Superior Court, dated June 30, 1999, filed July 6, 1999.

On appellate review, the evidence is viewed most favorably to upholding the ruling of the trial...