Bobby Dail Rush v. State

• Court: Court of Appeals of Georgia
• Decided: July 24, 2023
• Docket: A23A0637
• Status: Published

Opinion

THIRD DIVISION MILLER, P. J., DOYLE, P. J., and GOBEIL, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

July 24, 2023

In the Court of Appeals of Georgia A23A0637. RUSH v. THE STATE.

GOBEIL, Judge.

Following a bench trial, the trial court found Bobby Dail Rush guilty of

trafficking in methamphetamine, possession of a Schedule II controlled substance

(oxycodone), possession of a firearm during the commission of a felony, and

possession of drug-related objects. Rush appeals directly from his judgment of

conviction, arguing that the trial court erred in denying his motion to suppress

because: (1) the deputy lacked sufficient probable cause or reasonable articulable

suspicion to initiate the traffic stop; (2) the responding deputies unlawfully protracted

the traffic stop by abandoning “the mission” of the stop (predicated on a traffic

infraction) to pursue a drug investigation without valid justification; and (3) the

deputies improperly undertook an investigation unrelated to the purported traffic infraction in an attempt to justify the stop and the subsequent illegal search of Rush’s

person and vehicle absent a warrant. For the reasons that follow, we affirm.

We apply the following principles upon appellate review of a ruling on a

motion to suppress:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013) (citation and

punctuation omitted). So viewed, the record shows that on May 27, 2020, Mark

Sutton, a narcotics investigator with the Lumpkin County Sheriff’s Office, received

a tip from a confidential informant about the details of a vehicle in Dahlonega

involved in drug activity. Investigator Sutton observed the vehicle in the area and

followed it to a gas station. Sutton later identified the driver as Rush. Sutton then

contacted Corporal Corey Morgan with the Lumpkin County Sheriff’s Office K-9 unit

2 to initiate a traffic stop of Rush’s vehicle based on his suspicion that the vehicle was

involved in transporting narcotics. Sutton gave Morgan a description of Rush’s

vehicle and the direction of travel. Sutton believed that one of the headlights on

Rush’s vehicle was damaged, but he advised Morgan “to get his own independent

probable cause” for the stop.

At approximately 1:30 p.m., Corporal Morgan caught up with Rush’s vehicle

and observed that it was being driven in the rain without illuminated headlights.

Morgan activated his blue lights to initiate a traffic stop. Rush’s vehicle did not stop

right away, and Morgan had to turn on his siren before the vehicle finally pulled over.

Morgan observed the driver moving around near the center console before the vehicle

came to a stop, and the driver continued to move around in the vehicle even after

coming to a stop. Morgan described that such movements are potential signs of a

safety risk as the driver might be trying to access or hide a weapon or other

contraband. Investigator Sutton had informed Morgan about the vehicle’s possible

involvement in narcotics and, based on his training and experience, Morgan was

aware that persons in the drug trade often carry firearms.

After making contact with Rush, who was alone in the vehicle, Corporal

Morgan informed Rush that the reason for the traffic stop was due to a broken

3 headlight. Morgan directed Rush to put his hands on the steering wheel as a safety

precaution due to Rush’s movement in the vehicle prior to coming to a stop. Morgan

then asked Rush to exit the vehicle and conducted a pat down search to ensure that

Rush did not have any weapons on his person. Morgan felt a bulge in Rush’s front

pants pocket, which Rush claimed was money. Upon manipulating the bulge, Morgan

believed it to be methamphetamine shards because “nothing else looks or feels like

methamphetamine.”

Sergeant Jacob Smith of the Lumpkin County Sheriff’s Office arrived on the

scene to assist with the stop. Morgan asked Smith to run a check on Rush’s license.

While awaiting the results from dispatch, Smith initiated contact with Rush and

became concerned that Rush might be under the influence of either alcohol or

narcotics due to Rush’s eyes being constricted, his speech pattern, and “his jerking.”

Approximately five minutes into the traffic stop, while Smith conducted a check of

Rush’s license, Morgan took his K-9 around the exterior of Rush’s vehicle for a free-

air sniff, and the dog returned a positive alert to the seam of the driver’s door. At that

point, Smith was still waiting on dispatch to confirm the validity of Rush’s license.

Morgan informed Rush about the positive dog alert and gave Rush the opportunity

to tell him what was inside the vehicle. Rush admitted that he had a pipe and some

4 methamphetamine in the center console of the car, and also added that he had

methamphetamine in his pocket. After Morgan placed Rush under arrest, he

recovered a bag of methamphetamine from Rush’s pocket. Police also found a smaller

amount of methamphetamine, a smoking device, and a pink tablet in the center

console, as well as a loaded pistol and two sets of digital scales inside a safe in the

trunk of the car. Rush admitted that the pill was oxycodone.

Based on the foregoing, a grand jury indicted Rush for trafficking

methamphetamine, possession of a Schedule II controlled substance (oxycodone),

possession of a firearm during the commission of a felony, and possession of drug-

related objects (digital scales).

Rush filed a motion to suppress, arguing that “[a]fter illegally stopping,

waylaying and detaining [Rush],” law enforcement illegally searched Rush and his

vehicle absent “a warrant, probable cause, reasonable articulable suspicion, or valid

consent.” Rush maintained that even if the initial traffic stop was deemed valid, law

enforcement unlawfully prolonged the stop, and thus, any evidence or statements

gathered during the ensuing illegal search and seizure of Rush and his vehicle should

be suppressed.

5 At the suppression hearing, the State played footage from Corporal Morgan’s

and Sergeant Smith’s body cams, which depicted the events of the traffic stop and

Rush’s subsequent arrest as described above. The trial court denied the motion,

finding in relevant part that the traffic stop of Rush’s vehicle was supported by both

reasonable articulable suspicion and probable cause, as Corporal Morgan observed

Rush operating a vehicle in the rain without headlights; Morgan observed Rush

“conducting movement within the vehicle” and fail to immediately heed instructions

to stop the vehicle; a brief pat down of Rush caused Morgan to suspect that Rush was

in possession of a bag of methamphetamine; within five minutes of the stop, a

narcotics K-9 gave a positive alert on the seam of the driver’s side door, which

provided probable cause to search the vehicle; Rush subsequently admitted to the

existence of narcotics in the vehicle; and a search incident to Rush’s arrest yielded

the discovery of a large amount of methamphetamine in Rush’s pocket. The court

concluded that based upon a totality of the circumstances, “the evidence [Rush

sought] to have suppressed was lawfully seized.”

6 At the stipulated bench trial,1 the State tendered a laboratory report which

showed that the total weight of the methamphetamine seized from Rush’s person and

vehicle was 111.176 grams. The trial court found Rush guilty on all counts. The court

sentenced Rush to a total term of 35 years with the first 20 years to be served in

confinement and the remainder on probation. The instant appeal followed.

1. Rush argues that Corporal Morgan lacked sufficient probable cause or

reasonable articulable suspicion to initiate the traffic stop of Rush’s vehicle. He

asserts that Morgan’s only justification for pulling Rush over was an alleged

headlight violation stemming from either a defective headlight or Rush’s failure to

turn his headlights on while driving in the rain. He maintains that the record evidence

fails to indicate the precise weather conditions at the time of the stop. According to

Rush, “the precise nature of the ‘deficiency’ observed by [Corporal] Morgan

regarding [Rush’s] headlight is inconsistent, unclear, and frequently factually

incompatible with itself,” and therefore, the State lacked a valid reason for the traffic

stop.

1 All of the evidence and testimony given at the motion to suppress hearing was adopted at the bench trial over Rush’s objections as previously raised.

7 The legality of a traffic stop is measured by “an objective assessment of the

officer’s actions in light of the facts and circumstances confronting him at the time.

The validity of the stop, thus, depends on what the driver was doing and what that

reasonably conveyed to the officer, not on what else the officer thought might be

occurring.” Rosas v. State, 276 Ga. App. 513, 515 (1) (a) (624 SE2d 142) (2005)

(citation and punctuation omitted).

Here, Corporal Morgan testified at the suppression hearing that when he caught

up with Rush’s vehicle, he observed that the car was being driven in the rain without

the headlights on. See OCGA § 40-8-20 (lights on vehicle required “at any time when

it is raining in the driving zone”); Richardson v. State, 283 Ga. App. 89, 91 (640

SE2d 676) (2006) (traffic stop justified where evidence supported conclusion that dim

lighting conditions required vehicle lights under OCGA § 40-8-20). Morgan then

activated his blue lights to initiate a traffic stop. The trial court found that Morgan’s

testimony about the weather conditions was supported by the presence of multiple

other vehicles operating with headlights illuminated, the use of windshield wipers,

and wet road conditions, all of which were depicted in the body cam footage of the

traffic stop, especially at the start of the stop. It follows that Rush has failed to meet

his burden of proving that the trial court’s factual findings were clearly erroneous or

8 that the court erred in denying the motion to suppress on the ground that the stop was

unlawful. See Soilberry v. State, 282 Ga. App. 161, 162 (1) (637 SE2d 861) (2006)

(deferring to the trial court’s factual finding that the officer observed a traffic

violation and affirming the denial of appellant’s motion to suppress); Turner v. State

of Ga., 265 Ga. App. 40, 41-42 (2) (592 SE2d 864) (2004) (same). See also Rosas,

276 Ga. App. at 515 (1) (a) (sheriff was authorized to stop and detain defendants

initially during a traffic stop because he saw their vehicle following the vehicle ahead

of it too closely).

2. Rush next asserts that law enforcement unlawfully protracted the traffic stop

by abandoning “the mission” of the stop (predicated on a traffic infraction) to conduct

a drug investigation without valid justification.

The State bears the burden of proving that the search of the car was lawful,

Thomas v. State, 301 Ga. App. 198, 198 (687 SE2d 203) (2009), and to carry this

burden, the State must show that it was lawful to detain Rush until the time the drug

dog indicated the presence of drugs.

It is axiomatic that a police officer who observes a traffic violation is authorized to conduct a traffic stop of the vehicle in question. Once a valid traffic stop has been effected, the Fourth Amendment prohibits the officer from unreasonably prolonging the stop beyond the time required

9 to fulfill the purpose of the stop without a reasonable articulable suspicion of other illegal activity. But a reasonable time to conduct a traffic stop includes the time necessary for the officer to run a computer check on the validity of the driver’s license and registration, and to check for outstanding warrants and/or criminal histories on the driver and other occupants. The law further allows the officer to question the vehicle’s driver and/or its occupants during the course of the stop, and even to lawfully ask questions unrelated to the purpose of a valid traffic stop, so long as the questioning does not unreasonably prolong the detention.

Young v. State, 310 Ga. App. 270, 272-273 (712 SE2d 652) (2011) (citations,

punctuation, and footnotes omitted).

In this case, after initiating the traffic stop, Corporal Morgan asked Rush to exit

his vehicle to conduct a pat-down search to ensure that Rush did not have any

weapons on his person. Morgan testified that he had safety concerns because he had

observed Rush moving around the center console prior to the vehicle coming to a

stop, indicating that the driver might be trying to access or conceal a weapon or other

contraband. See Rosas, 276 Ga. App. at 518 (1) (c) (“out of concern for safety, an

officer making a traffic stop may also order the driver and any passengers out of the

vehicle”) (footnote omitted). Rush also failed to immediately stop the vehicle upon

Morgan’s activating his lights, which required Morgan to turn on his siren. Morgan

10 observed a bulge in Rush’s pocket that Rush claimed was money. During the pat-

down, Morgan suspected that the bulge might be methamphetamine based on his

training and experience.

While Sergeant Smith ran a check on Rush’s license, Morgan initiated the

free-air sniff with the drug dog. “[O]ur law is . . . 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.” Wilson v. State, 293 Ga. App. 136, 137 (666 SE2d 573) (2008); State v.

Simmons, 283 Ga. App. 141, 143 (640 SE2d 709) (2006) (“(t)he use of a drug sniffing

dog to conduct a free[-]air search around the exterior of a vehicle during the course

of a lawful traffic stop does not implicate the Fourth Amendment under the United

States Constitution”) (citation and punctuation omitted). After the drug dog’s positive

alert on the driver side door of Rush’s vehicle,2 the police had probable cause to

search the vehicle, which then yielded the discovery of the methamphetamine,

smoking device, and oxycodone in the center console, as well as a loaded pistol and

two sets of digital scales inside a safe in the trunk of the car. See Davidson v. State,

2 See McKinney v. State, 326 Ga. App. 753, 756 (1) (755 SE2d 315) (2014) (“Whether [K-9] in fact alerted on the car was a question of fact for the trial court, which we must accept unless clearly erroneous.”).

11 257 Ga. App. 260, 264 (1) (b) (570 SE2d 698) (2002) (drug dog’s alert on front

passenger door of defendant’s vehicle provided police officer with probable cause to

search glove compartment where officer retrieved bags containing cocaine).

In the instant case, as the free-air sniff occurred within five minutes of the

initial stop with a K-9 who was already present on the scene and while the officers

were still awaiting results from the check on Rush’s license, Rush has failed to

establish that the free-air sniff unreasonably prolonged the initial detention. Compare

Wilson, 293 Ga. App. at 138 (holding that a three-minute delay between the

completion of a traffic citation and the retrieval of a drug dog already on scene did

not impermissibly extend the detention at a traffic stop); Bowens v. State, 276 Ga.

App. 520, 521-522 (623 SE2d 677) (2005) (traffic stop was not prolonged by virtue

of the dog’s free-air search around the exterior of the vehicle as officer was still

awaiting results of license and registration check when drug dog sniffed car);

Davidson, 257 Ga. App. at 264 (1) (b) (finding that officer performing an exterior

free-air sniff with a drug dog that was already present on the scene less than five

minutes after the officer’s initial encounter with the driver did not unreasonably

prolong the detention), with State v. Cunningham, 246 Ga. App. 663, 664 (541 SE2d

453) (2000) (affirming trial court’s grant of motion to suppress where officer

12 conceded at suppression hearing that he already had completed his investigation of

the alleged traffic infractions during stop when he decided to retrieve K-9 from his

police car to conduct a free-air sniff); State v. Thompson, 256 Ga. App. 188, 189-190

(569 SE2d 254) (2002) (excluding evidence obtained as a result of officer’s continued

questioning of defendant after citation had been written and license returned to

defendant, resulting in a 20-minute delay while waiting for drug dog after traffic stop

had concluded); Gonzales v. State, 255 Ga. App. 149, 150 (564 SE2d 552) (2002)

(holding that officer went beyond permissible scope of investigation when he

questioned defendants after traffic stop had ended but lacked reasonable suspicion to

do so). Accordingly, this claim of error fails.

3. Finally, Rush alleges that the deputies improperly undertook a drug

investigation unrelated to purported traffic infraction in an attempt to justify the

traffic stop and the subsequent illegal search of Rush’s person and vehicle absent a

warrant.

The decision to stop an automobile is not unreasonable if the police have

probable cause to believe that a traffic violation has occurred. Delaware v. Prouse,

440 U. S. 648, 661 (V) (99 SCt 1391, 59 LE2d 660) (1979). And it does not matter

that the officer also believes the motorist has committed some other offense. Whren

13 v. United States, 517 U. S. 806, 813 (II) (A) (116 SCt 1769, 135 LE2d 89) (1996).

The fact that a law enforcement officer may have some “ulterior motive” does not

convert a constitutional stop supported by probable cause into a violation of the

Fourth Amendment. See id. at 812-813 (II) (A), 819 (III) (pretextual stops supported

by probable cause do not violate the Fourth Amendment). Even if the primary motive

of the officers involved in Rush’s stop was to discover illegal drugs in the vehicle,

that motive did not prevent them from stopping Rush’s vehicle if they had probable

cause to believe that he had committed a traffic infraction. Id. Any suggestion that the

pretextual nature of the stop somehow supports the finding of a Fourth Amendment

violation has been soundly rejected by the Supreme Court. Id. at 812-813 (II) (A).

Here, Rush asserts that information from the confidential informant was

insufficient to provide the police with reasonable suspicion that Rush had engaged

in illegal drug activity sufficient to justify an investigatory stop. The State appears to

concede this point. However, as previously discussed in Division 1, Corporal Morgan

had probable cause to believe that Rush was in violation of the state law requiring

motorists to utilize headlights while driving in the rain, OCGA § 40-8-20, and

therefore, the stop was justified. Thereafter, as discussed in Division 2, because the

free-air dog sniff (which yielded the discovery of drugs and other contraband in the

14 car) occurred during the ordinary course of the traffic stop and did not unreasonably

prolong the stop, the trial court did not err by finding it permissible. Compare Lewis

v. State, 332 Ga. App. 466, 470 (1) (773 SE2d 423) (2015) (open-air dog sniff of

recreational vehicle and trailer it was towing did not unreasonably prolong traffic

stop; dog sniff was conducted before completion of traffic stop and did not hinder

officers’ timely completion of the mission of traffic stop, as it was initiated by one

officer while second officer finished filling out written warning and while officers

waited for dispatch to return check on driver’s license information), with Weaver v.

State, 357 Ga. App. 488, 491 (851 SE2d 125) (2020) (officer unreasonably prolonged

traffic stop of defendant’s vehicle beyond the time reasonably required to complete

his investigation of alleged traffic violation, even if defendant was nervous during the

traffic stop; following stop of vehicle for a break light violation, officer continued to

question defendant and passenger about multiple subjects unrelated to the purpose of

the stop even after receiving an answer from dispatch regarding the legality of

defendant’s license and registration); Nunnally v. State, 310 Ga. App. 183, 187-189

(2) (713 SE2d 408) (2011) (police officer lacked reasonable, articulable suspicion of

other criminal activity to justify prolonged detention of defendant following traffic

stop for turn signal violation, despite officer’s observation of defendant’s fidgety

15 hand movements and failure to look officer in the eye, where defendant had been

ordered out of car and a patdown of defendant revealed neither weapon nor

contraband).

Based on the foregoing, we affirm the trial court’s denial of Rush’s motion to

suppress evidence recovered from his person and vehicle during the traffic stop.

Judgment affirmed. Miller, P. J., and Doyle, P. J., concur.