Terry v. State

• Decision Date: 28 January 2021
• Docket Number: A20A1627
• Parties: TERRY v. The STATE.
• Court: Georgia Court of Appeals

358 Ga.App. 195

854 S.E.2d 366

TERRY

v.The STATE.

A20A1627

Court of Appeals of Georgia.

January 28, 2021

Jerry Wayne Chappell II, for Appellant.

Clifford Paul Bowden, Jennifer Dawn Hart, Bryce Alan Johnson, for Appellee.

Dillard, Presiding Judge.

Robert Terry appeals his convictions for violating the Georgia Controlled Substances Act ("GCSA"); possession of marijuana, more than one ounce; driving with a revoked license; and improper display of a license plate. On appeal, Terry argues (1) the evidence was insufficient to support his conviction for violating the GCSA; (2) the trial court erred in denying his motion to suppress evidence because his traffic stop was improperly extended without reasonable, articulable suspicion; and (3) the trial court abused its discretion by excluding a potential defense witness. For the reasons set forth infra , we reverse the judgment and remand the case for further proceedings consistent with this opinion.

Viewed in the light most favorable to the jury's verdict,¹ the evidence shows that on July 29, 2014, Sergeant Peter Lukas with the Georgia State Patrol was working his "normal duty" with two other officers. During his shift, Lukas initiated a traffic stop of a car because he could not see into the vehicle, which suggested the window tint was too dark and in violation of Georgia law. Lukas also noticed that the car's license plate tag was obstructed, which is also illegal in Georgia.

When Lukas approached the car, he observed Terry in the driver's seat and Kabrianna Smith in the front passenger's seat. Lukas asked for Terry's driver's license, but Terry provided him with a Florida identification card instead. Terry then advised Lukas that Smith owned the vehicle, but when Lukas checked the vehicle registration, he learned that the primary owner of the vehicle was Teresa Rodriguez² and that Smith was only a secondary owner.

After confirming there was valid insurance for the vehicle, Lukas also discovered that Terry's driver's license was invalid and had been suspended a total of ten times. As a result, Lukas arrested Terry for driving with a suspended license. Lukas then returned to his patrol car to see if Smith had a valid license so he could release the car to her, and he confirmed that she did. Even so, Lukas asked Smith permission to search the car, but she refused. Despite this refusal, a K-9 officer used his dog to conduct a "free air sniff of the vehicle." And while circling the vehicle, the dog indicated that "there was an odor of some type of marijuana or narcotic." The officers then conducted a full search of the car, during which they found a package containing a "grayish whitish gravel" substance; a "heat sealed bag of [a] green leafy substance;" and $11,420 in cash. Smith also removed a sandwich bag from her pocket containing a "green leafy substance," which—based on Lukas's training and experience—appeared to be marijuana. At this point, Lukas arrested Smith and placed her in the back of another officer's patrol car. Upon further investigation, the crime lab confirmed, inter alia , that the leafy substance in the heat-sealed bag was marijuana and the gravel-type substance was "molly."³

Subsequently, Terry was charged, via indictment, with violating the GCSA; possession of marijuana, more than one ounce; driving with a revoked license; and improper display of a license plate. Following a jury trial, Terry was convicted of all charged offenses. Terry then filed a motion for a new trial, which was denied in a cursory order.⁴ This appeal follows.

1. Addressing Terry's second argument first, he contends that the trial court erred in denying his motion to suppress evidence obtained after the conclusion of the traffic stop without reasonable, articulable suspicion. We agree.

At the outset, we reject the State's argument that Terry waived this claim of error because, during the trial, he affirmatively represented to the court that he had no objection to the admission of the evidence at issue. In this regard, OCGA § 24-1-103 (a) provides: "Once the court makes a definitive ruling on the record admitting or excluding any evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve such claim of error for appeal."⁵ And here, prior to trial, the trial court made a definitive ruling that the drug evidence found in the car was admissible when it denied Terry's motion to suppress that evidence. Then, at the outset of the trial, when Terry attempted to argue a second time that the search of the car was unlawful, the trial court expressly stated that the issue was preserved for appeal and the topic was "off limits." Thus, given the trial court's definitive ruling on Terry's motion to suppress evidence and its representation to him that his "redress [was] on appeal," Terry did not waive his Fourth Amendment challenge by stating that he had no objection to the evidence when it was admitted at trial.

The State also contends that, after his arrest, Terry no longer had "standing" to challenge any delay of the traffic stop leading to the search of Smith's car. But the State never raised this argument in the trial court, and the court did not rule on it.⁶ As a result, we will not address it.⁷

In reviewing the denial of a motion to suppress, we generally must "(1) accept a trial court's findings unless they are clearly erroneous, (2) construe the evidentiary record in the light most favorable to the factual findings and judgment of the trial court, and (3) limit [our] consideration of the disputed facts to those expressly found by the trial court."⁸ Nevertheless, we review de novo the trial court's "application of law to the undisputed facts."⁹ With these guiding principles in mind, we turn to Terry's specific arguments on appeal.

Lukas testified that, on the night in question, he initiated a traffic stop of Terry's vehicle because it appeared the car's window tint was dark enough to violate Georgia law and his tag registration sticker was obstructed. Lukas initially approached the passenger side of the car, at which point he saw Terry in the driver's seat and Smith in the front passenger seat. Lukas asked Terry for his license and proof of insurance, but Terry only provided him with a Florida identification card, which does not authorize someone to drive. And ultimately, Lukas determined that Terry was driving with a suspended license and arrested him for that offense.

When Lukas ran a check of the car's tag, he discovered the "main registered owner" was Teresa Rodriguez and that she had valid car insurance. Smith's name was also listed at the "very bottom of the registration[.]" Lukas then went to speak to Smith, who provided registration paperwork for the car with her name on it. Lukas asked Smith—who was still sitting in the car—if she had a valid driver's license because, if so, he planned to release the vehicle to her. And when Smith provided him with her Florida driver's license, he confirmed that it was indeed valid. At this point, Lukas gave Smith her license and registration paperwork back and indicated that she was free to leave. Although Lukas testified that he did not expressly tell Smith she was free to leave, he returned all of her belongings and believed he had "no legal grounds to keep her."¹⁰ Nevertheless, after checking Smith's license and registration and concluding that she was free to leave, Lukas asked Smith if he could search her car, but she refused.

So, even though Smith had a valid license, was free to leave, and refused to consent for a search of the car, Lukas informed her that a K-9 officer—who was already on the scene—was going to walk around the vehicle with his dog for a "free air sniff." And when the dog circled Smith's car, it indicated on the front side passenger door. As a result, the officers searched Smith's car and found drugs "stuffed down between the passenger seat and center console" in a bag wrapped in a t-shirt. Specifically, the officers discovered a heat-sealed bag of marijuana, a clear bag of pills, and a bag containing "an off white rock like substance." The officers also located money in the center console of the car. Based on these discoveries, the officers then searched Smith, and she pulled a "little bag of marijuana" out of her pants. Smith was then arrested and placed in a patrol car.

Although Terry concedes that the initial traffic stop was lawful, he argues that the open air dog sniff of Smith's car was unlawful because it was conducted after the "mission" of the traffic stop was complete. Specifically, he contends that after the traffic stop was complete, Lukas lacked any reasonable, articulable suspicion to prolong the stop to conduct the open-air K-9 search.¹¹ We agree.

As the Supreme Court of the United States has explained,

a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.¹²

Thus, the "tolerable duration of police inquiries in the traffic-stop context" is determined by "the seizure's ‘mission’—to address the traffic violation that warranted the stop, and attend to related safety concerns."¹³ But after the tasks related to the investigation of the traffic violation and processing of the citation have been accomplished, an officer "cannot continue to detain an individual without reasonable articulable suspicion"¹⁴ And significantly, reasonable, articulable suspicion requires a "particularized and objective basis for suspecting that a citizen is involved in criminal activity."¹⁵

Importantly, a dog sniff of a traffic-stopped vehicle is "not fairly characterized as part of the officer's traffic mission, because it is a measure aimed at detecting evidence of ordinary criminal wrongdoing."¹⁶...