Nash v. State

746 S.E.2d 918, 323 Ga. App. 438
CourtCourt of Appeals of Georgia
DecidedJuly 16, 2013
DocketA13A0200; A13A0201
StatusPublished
Cited by8 cases

This text of 746 S.E.2d 918 (Nash v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nash v. State, 746 S.E.2d 918, 323 Ga. App. 438 (Ga. Ct. App. 2013).

Opinions

BARNES, Presiding Judge.

After the traffic stop of the vehicle in which they were passengers, Kashif Nash and Antoine Davis were indicted on charges of possession of marijuana (Nash and Davis), and possession of cocaine with intent to distribute and trafficking in methamphetamine (Davis). Nash and Davis filed interlocutory appeals from the trial court’s [439]*439denial of their motions to suppress evidence obtained as a result of the traffic stop. The appeals — Case No. A13A0200 and Case No. A13A0201 — have been consolidated for purposes of our review. For the reasons discussed below, we reverse.

At a hearing on a motion to suppress, “the trial judge sits as the trier of fact.” State v. Hamby, 317 Ga. App. 480, 481 (731 SE2d 374) (2012). When this Court reviews the grant or denial of a motion to suppress, we construe the evidence “most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous.” Id. Upon our review, however, we owe “no deference to the trial court’s conclusions of law” and are instead “free to apply anew the legal principles to the facts.” (Punctuation omitted.) Martin v. State, 316 Ga. App. 220, 220 (729 SE2d 437) (2012).

So viewed, the evidence adduced at the hearing on the motion to suppress shows that an officer with the Gwinnett County Police Department initiated the stop of a vehicle after observing what appeared to be a window tint violation. As the officer approached the vehicle, which had a South Carolina license plate, he noticed an air freshener hanging from a rear driver side handle, and noticed an overwhelming odor of air freshener when the passenger let down the window. The officer also observed that there were three additional “air fresheners that were shaped like trees” and clip-on “air freshener [s] in every single one of the vents and the dash.”

In addition to the driver, there were two other individuals in the vehicle — Nash, who was the front seat passenger and Davis, who was seated in the back. The officer took the driver of the vehicle back to his patrol car while he verified his driver’s license and the vehicle’s registration.1 Nash and Davis remained in the vehicle, which was registered to Nash’s mother. The driver told the officer that Nash was the owner of the car, that Nash and Davis were his cousins, and that he was visiting family in Atlanta, although the driver subsequently told the officer that he was visiting family in Buford but that he also had family in Atlanta. The officer testified that the driver “wasn’t able to give [him] an exact location in the Atlanta area.”

The officer then tested the window tint and, after determining that tint level did not comply with the “thirty two percent that the law states in Georgia,” informed Nash that he needed to remove or redo the tint to make sure that it was compliant with South Carolina law. The officer also asked Nash where the men were coming from and if [440]*440they were related, and Nash told him that the driver was his cousin but that Davis was a friend. The officer testified that Davis “chimed in” that the men had “visit[ed] his people down in Atlanta.”

The officer testified that after he went to the window to measure the window tint, he radioed for officer assistance because he had become suspicious of criminal activity because of the air fresheners and conflicting stories. The second officer arrived less than ten minutes after the radioed request, at about twenty minutes into the stop. The officer wrote the driver a warning citation, which the driver signed. He then counseled the driver about the citation, returned the driver’s license and gave him a copy of the citation, but not the registration. The officer then asked the driver if “there was anything illegal inside the vehicle, specifically marijuana, cocaine, methamphetamine, or ecstasy.” The driver responded that there was not. The officer testified that he asked about the contraband because air fresheners are “commonly used as masking agents,” and because of the conflicting stories about who and where they were visiting, and their relationship.

The officer went back to the vehicle to give the registration to Nash and also asked him if “marijuana, cocaine, methamphetamine, [or] ecstasy’ were present in the vehicle. The officer testified that he knew that the driver could not consent to a search of the car, so he had gone back to the car to get consent from Nash to search. Nash refused. The officer testified that he had to ask him for consent to search twice because when Nash first refused consent he mumbled and “would not make eye contact with [the officer] and he mumbled his response.” The officer also noted that Nash appeared nervous, and that he was surprised that the nervousness had not subsided after Nash had been told “he was getting a [warning].”

The officer then radioed for a K-9 unit to be dispatched to the location. The K-9 officer testified that his unit was about 25 to 27 miles away when they received the dispatch and that it had taken “twenty minutes, give or take” to respond. After a free air search around the vehicle, the K-9 unit dog alerted on the trunk of the vehicle. Upon searching the trunk, the officers recovered a gallon size freezer bag containing marijuana weighing one pound. At the jail, police also recovered two small bags of marijuana and 100 ecstasy pills from Davis’ person. Police also retrieved cocaine from under the back seat of the patrol car that transported Davis.

Davis testified at the hearing on the motions that he sat in the first officer’s patrol car for approximately 45 minutes after the window tint investigation concluded, waiting for the K-9 unit to arrive. He also testified that the two officers searched under the seat and in the glove compartment before the K-9 unit arrived.

[441]*441After the driver, Nash and Davis were indicted on charges related to the discovery of the drugs, the men moved to suppress evidence of the drugs, essentially arguing that there was no reasonable articulable suspicion of criminal activity to justify their continued detention once the officer wrote the warning for the window tint. After a hearing, the trial court denied the motions, but issued a certificate of immediate review.

In denying the motions, the court found that the officer “had sufficient information to justify a continued detention for the purpose of investigating his suspicion that there were illegal drugs in the vehicle.” The trial court further found that while the presence of air fresheners and conflicting stories about the men’s travel destination and relationships “may not each be sufficient standing alone to justify a continued detention ... based on the totality of the particular facts in this case, [the officer] had sufficient articulable suspicion to justify a continued detention for the few extra minutes it took the K-9 officer to arrive.” The trial court found that the K-9 officer arrived on the scene within “30-45 minutes of the initial stop of the vehicle.”

On appeal, Nash and Davis essentially contend that the trial court erred in denying their motions to suppress because of the lengthy detention after the traffic stop was complete, and because the extended detention was not supported by reasonable articulable suspicion.

We first consider the reasonableness of the length of the detention.

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Bluebook (online)
746 S.E.2d 918, 323 Ga. App. 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nash-v-state-gactapp-2013.