Wilson v. State
| Decision Date | 16 July 2008 |
| Docket Number | No. A08A0401.,A08A0401. |
| Citation | 293 Ga. App. 136,666 S.E.2d 573 |
| Parties | WILSON v. The STATE. |
| Court | Georgia Court of Appeals |
Althea L. Buafo, Macon, for appellant.
Kelly R. Burke, District Attorney, George H. Hartwig III, Joshua D. Morrison, Assistant District Attorneys, for appellee.
David F. Wilson was convicted following a bench trial of trafficking in cocaine, trafficking in MDMA (ecstasy), possession of MDMA with intent to distribute, possession of marijuana with intent to distribute and possession of marijuana.1 He appeals, enumerating as error the trial court's denial of his motion to suppress evidence of the contraband found during the search of his vehicle.
Where, as here, the evidence at a hearing on a motion to suppress is uncontroverted and no question of credibility is presented, we review the trial court's application of the law to the undisputed facts de novo. Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994). This Court's responsibility in reviewing the trial court's decision on the motion to suppress is to ensure that there was a substantial basis for the trial court's decision. State v. McFarland, 201 Ga.App. 495, 411 S.E.2d 314 (1991).
Trujillo v. State, 286 Ga.App. 438, 440(2), 649 S.E.2d 573 (2007).
As to this issue, the evidence shows that Wilson was initially stopped by Deputy Clay Chambers for following too closely. Wilson admitted to Chambers that he was following too closely. Chambers testified that he noticed that Wilson's hands were shaking as Wilson handed him the rental agreement for the car he was driving. Chambers ran Wilson's driver's license and tag, and decided to write Wilson a warning ticket. Chambers went back to Wilson's car, told him he was going to write him a warning and asked him to step to the rear of his vehicle. Chambers testified that although most people initially are nervous when they get stopped because they think they are going to get a ticket, they calm down once they are informed they are just being given a warning. But Wilson still appeared nervous; for this reason Chambers started talking to him about where he lived, "his trip, his itinerary, if he was going on business or vacation." He testified that Wilson also began using his cell phone and that he would not make eye contact with him. Chambers began questioning Wilson about whether he had anything illegal in the car including various types of contraband. Chambers said Wilson kept looking at the ground and shaking his head no, although he did make eye contact with Chambers and "kind of giggled" when Chambers asked him if he had any methamphetamine or heroin. Chambers then asked Wilson for consent to search his vehicle, and when Wilson refused, Chambers stopped writing the ticket, which he had not completed at that point, and retrieved his drug detection canine out of his vehicle. The dog gave a positive alert on the vehicle, and Chambers then searched the vehicle and found what he suspected to be cocaine. Wilson was placed under arrest at that time, and Chambers continued to search the vehicle, finding what was subsequently identified as marijuana and MDMA tablets.
Wilson does not challenge the legality of the initial stop but argues on appeal that Chambers intentionally prolonged writing the warning ticket by questioning Wilson and that all business related to his traffic violation should have been concluded at the time the canine sniff was conducted. Wilson argues that intentionally prolonging the actual issuance of a citation to conduct an unrelated investigation is no different than beginning a new investigation without sufficient cause after the initial reason for the stop has been concluded and is equally impermissible under the protections of the Fourth Amendment.
Although the officer testified Wilson was nervous, Wilson is correct that "nervousness alone is not sufficient to establish reasonable suspicion to detain and investigate for illicit drug activity." (Citations and punctuation omitted.) State v. Thompson, 256 Ga.App. 188, 190, 569 S.E.2d 254 (2002). Gonzales v. State, 255 Ga.App. 149, 150, 564 S.E.2d 552 (2002). But our law is equally clear that it is permissible to conduct an open air search around a vehicle while a traffic stop is still in progress so long as the stop has not been unreasonably prolonged for the purpose of conducting the search.2 Wilson does not contend otherwise, but argues that the duration of the stop, and, specifically, the time it took Chambers to write the warning ticket, was improperly extended by Chambers' questioning to enable the free air search of the vehicle to occur. As the United States Supreme Court has noted, "[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." Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005).
Mere police questioning does not constitute a seizure, and
even if police have no basis for suspecting that a person detained at a traffic stop is engaged in criminal activity...
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