State v. Price

• Decision Date: 10 July 2013
• Docket Number: No. A13A0212.,A13A0212.
• Citation: 322 Ga.App. 778,746 S.E.2d 258
• Parties: The STATE v. PRICE, et al.
• Court: Georgia Court of Appeals

322 Ga.App. 778

746 S.E.2d 258

The STATE

v.PRICE, et al.

No. A13A0212.

Court of Appeals of Georgia.

July 10, 2013.

Richard Ashley Mallard, Joseph Barclay Black, for The State.

Kimberly Laverne Copeland, Jesup, Thomas A. Withers, for Price et al.

McMILLIAN, Judge.

Appellees Mykell Price and Jonathan Anderson were indicted with the offense of trafficking in cocaine (OCGA § 16–13–31(a)(1)(A)), and Anderson was also charged with the offense of operating a motor vehicle with an illegal window tint (OCGA § 40–8–73.1). Each appellee filed a motion to suppress, asserting that the traffic stop giving rise to these charges was pretextual and that the traffic stop was unreasonably prolonged. In addition, Price asserted that he was placed under arrest and questioned without being advised of his Miranda rights. Following a hearing, the motions to suppress were granted, and the State appeals.

Generally, on appeal from a trial court's ruling on a motion to suppress, the trial court's finding as to disputed facts will be sustained unless clearly erroneous. But, as here, where the State's evidence presented at the motion to suppress hearing was uncontroverted and no question of witness credibility is presented, the trial court's application of the law to the undisputed facts is subject to de novo appellate review. Jones v. State, 314 Ga.App. 107, 722 S.E.2d 918 (2012); Walker v. State, 314 Ga.App. 67, 67(1), 722 S.E.2d 887 (2012). Following our review pursuant to this standard, we reverse.

On November 3, 2011, at approximately 2:00 p.m., Price and Anderson were traveling on I–16 when a patrolling Bulloch County deputy sheriff, Deputy Ray Rodriguez, observed that the windows of their vehicle appeared to be illegally tinted. The deputy conducted a traffic stop, checked the windows, and determined the tinted windows were in violation of the law. The deputy also noted that the driver, Anderson, was extremely nervous, his eyes were glazed, and there was an odor of burnt marijuana coming from the vehicle. Based on these observations, the deputy summoned a Statesboro police officer accompanied by a drug dog. Sergeant Jason Kearney with the Bulloch County Sheriff's Department also responded. The Statesboro K–9 unit was nearby and arrived approximately five or six minutes after the traffic stop was initiated. The dog was deployed to execute a free air sniff around appellees' vehicle and within less than a minute gave a positive response to the odor of one of the substances he was trained to detect.

When Sergeant Kearney arrived at the scene, he began an attempt to identify the passenger, Price. This process was still underway when the K–9 unit arrived. Kearney had observed that upon his initial approach Price was very nervous and seemed to be shaking. After the dog alerted, Kearney got Price out of the vehicle to continue his investigation. Price continued to be nervous and shaking, and the sergeant placed him in handcuffs due to concerns that he was about to flee or fight the officers. As Price was being handcuffed, Kearney told him that he was not under arrest, but was being detained. After Price was handcuffed, Kearney asked him whether he had anything illegal on his person. Price responded that he had “a little bit of ... weed, in his pocket” that is marijuana, and indicated where he had the contraband which the sergeant described as “half of a joint of marijuana.” The sergeant testified that upon finding the contraband, Price was placed under arrest and was further searched. The search disclosed two ounces of cocaine in Price's shoe.

Because the trial court did not explain the reason for granting the motions to suppress, we will address each of the potential grounds asserted by the appellees in their motions to suppress, which the State contends do not support the granting of the motions. To begin with, we find that the traffic stop of the vehicle was not pretextual because the undisputed evidence was that the officer observed what he believed to be a window tint violation, and upon testing the window, the officer testified that its tint was in violation of OCGA § 40–8–73.1. “If an officer witnesses a traffic violation, the ensuing stop is never pretextual, regardless of the officer's subjective intention.” Cuaresma v. State, 292 Ga.App. 43, 45–46(1), 663 S.E.2d 396 (2008). See also Walker v. State, 322 Ga.App. 821, 744 S.E.2d 385 (2013); Berry v. State, 318 Ga.App. 806, 808(1), n. 3, 734 S.E.2d 768 (2012).

Appellees also maintain that the traffic stop was unduly prolonged by the attempt to identify the passenger, Price. Based upon concerns for officer safety, we have held that “a police officer may check for outstanding warrants or criminal histories on the occupants of a vehicle at a valid traffic stop ... as long as under the circumstances they do not unreasonably prolong the stop.” (Citation and punctuation omitted.) Matthews v. State, 294 Ga.App. 836, 840(1)(d), 670 S.E.2d 520 (2008). In this instance, the Sheriff's Department sergeant arrived and began the identification check on Price while the deputy who had made the traffic stop was still talking to Anderson. The sergeant had not finished when the dog arrived and alerted. The time reasonably necessary to accomplish the purpose of a traffic stop includes the time necessary to run a computer check on the driver and on any passengers. See Davis v. State, 322 Ga.App. 217, 744 S.E.2d 393 (2013) (stop not unreasonably prolonged to run warrant search on passengers); Young v. State, 310 Ga.App. 270, 272–273, 712 S.E.2d 652 (2011) (K–9 unit arrived while officers still in process of obtaining criminal histories of driver and passenger). Thus, appellees' theory that time is allowed for a computer check of only the driver, but not the passengers, is incorrect.

And this Court has upheld on numerous occasions traffic stops that were less than ten minutes to allow officers to run criminal histories and to complete any paperwork for issuing the citation. See e.g., Young, 310 Ga.App. at 270, 712 S.E.2d 652 (ten minute wait); Wilson v. State, 318 Ga.App. 59, 733 S.E.2d 365 (2012) (K–9 requested while officer was issuing citations for the alleged traffic violations and arrived in ten minutes); Hardaway v. State, 309 Ga.App. 432, 710 S.E.2d 634 (2011) (search not...