Tanner v. State, A06A1298.
| Decision Date | 14 August 2006 |
| Docket Number | No. A06A1298.,A06A1298. |
| Citation | 281 Ga. App. 101,635 S.E.2d 388 |
| Parties | TANNER v. The STATE. |
| Court | Georgia Court of Appeals |
Drew W. Powell, Public Defender, Laurie K. Landsittel, Office of the Public Defender, for appellant.
Michael H. Crawford, Dist. Atty., for appellee.
Juan Tanner appeals from his conviction following a bench trial for trafficking in cocaine, contending that the trial court erred in denying his motion to suppress. He argues that his detention at a traffic stop was unreasonably prolonged without a reasonable articulable suspicion of criminal activity. For the reasons that follow, we affirm.
In considering the denial of a motion to suppress, we construe the evidence in the light most favorable to the trial court's judgment, and its findings of fact based on conflicting evidence must be accepted unless clearly erroneous. Woodward v. State, 245 Ga.App. 409, 537 S.E.2d 791 (2000).
So construed and as found by the trial court, a Habersham County deputy sheriff stopped Tanner at 2:46 a.m. for driving 84 miles per hour in a 65 mile-per-hour zone, calling in the tag number as he pulled the car over. When the deputy approached the car, he smelled a strong odor of alcohol and saw an open beer can in the car's center cup holder. He asked Tanner for his license and proof of insurance, but Tanner give him his license and a rental car contract. The deputy then returned to his patrol car, and called in the license information and for a backup, per his usual procedure.
The deputy returned to Tanner's vehicle, noticed the beer can was gone, and asked Tanner to step out of the car, at which point he patted him down for weapons and found none. He asked Tanner if he had been drinking, and Tanner responded that he not been but admitted that he had moved the open beer can the deputy had seen earlier. The deputy asked if he could search the vehicle, but Tanner declined, explaining that it was a rental. He became defensive, backed up against the car, and was very nervous.
Tanner explained that the rental contract was in his mother's name, but he was listed as a permissible driver, and that she had called the rental company to obtain oral permission to extend the rental period for three days. The deputy testified that drug couriers often used cars rented in a third party's name, so he returned to his patrol car and asked the dispatch operator to try to contact the rental company to verify Tanner's story. It took 30 minutes for dispatch to inform the deputy that the car had not been reported stolen, and it took about 20 to 25 minutes for dispatch to return information about Tanner's license.
Meanwhile, the deputy conducted field sobriety tests because of the alcohol odor and the open can. Although Tanner failed two of the tests, his alco-sensor test was negative. During this time, the backup officer arrived and stood near the passenger door to keep an eye on the passenger.
At 3:05 a.m., about 20 minutes into the stop, the deputy contacted a K-9 operator to bring his dog to the scene. He had written no tickets, and had not yet heard back from dispatch regarding the status of Tanner's license or whether the car had been reported stolen. He also had not completed his open container investigation, having not yet located the beer can, and his backup officer had spotted an apparent open bottle of liquor in plain view, protruding from beneath the back of the passenger seat. The deputy called for the drug dog because the rental agreement had expired; because Tanner was nervous and backed up against the car while declining consent to search; and because Tanner had admitted having the open container, which made the officer think that Tanner was trying to hide something else by admitting to the open container as a diversion. While waiting for the K-9 unit, the deputy began to write a ticket, planning to cite Tanner for speeding. He also intended to arrest Tanner for the open container, but had not yet located the container and was waiting for the drug dog to arrive. The dog and her handler arrived at 3:27 a.m., about 15 minutes after the deputy finished writing the speeding ticket and about 40 minutes after the stop began. At that time, dispatch had reported back to the deputy that the car had not been reported stolen and that Tanner's license was good, but dispatch had not yet reported back about its attempt to contact the rental car company to confirm that the rental period had been extended.
The K-9 officer and the drug dog circled Tanner's vehicle twice, and the handler reported that the dog "showed interest" both times at the passenger door, which the handler reported to the officer as an alert. The handler explained that, while the dog did not actively alert by barking, jumping, or scratching, the minute changes in the dog's body language, breathing, tail wagging, and ears, along with the fact that she turned her head further toward the car as they passed, told him that she smelled drugs. While to the untrained eye, the dog did not appear to alert, the handler saw and interpreted these changes as an alert based on his familiarity with the dog, which he had bought with his own money as a puppy and had trained. The handler also testified that every time the dog had ever shown interest in this way, he had either found narcotics or a subsequent investigation detected a high probability that contraband had previously been located in that location. The officer informed Tanner that the dog had alerted at the passenger door and asked if he knew why; Tanner said he did not know, but the passenger might have a bag of marijuana on her. The passenger exited the car at the deputy's request, and Tanner told her to give the deputy the bag of marijuana in her pocket, which she did.
The passenger was placed under arrest, and the officers searched the car. They found a beer can under the driver's seat, an open gin bottle under the...
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