State v. Bibbins

609 S.E.2d 362, 271 Ga. App. 90, 2004 Ga. App. LEXIS 1587

• Court: Court of Appeals of Georgia
• Decided: December 1, 2004
• Docket: A04A1305
• Status: Published

Opinions

ELDRIDGE, Judge.

The State appeals from an order granting Stephen Ralph Bib-bins’ motion to suppress drugs found pursuant to an alleged consent search conducted during the course of a valid traffic stop. The trial court did not make a factual finding about whether consent was actually obtained. Instead, the court determined that the detaining officer “exceeded the scope” of the traffic stop in asking for consent to search for drugs; thus, Bibbins’ consent, if any, was the product of an “illegal detention.” The following stipulated facts are necessary for proper resolution of this appeal.

While traveling on Interstate 75 on June 5, 2003, Special Agent Alex Bauch of the Griffin-Spalding Narcotics Task Force stopped a truck driven by Bibbins after the truck crossed the fog line. Bauch approached the vehicle, obtained Bibbins’ driver’s license, noted that Bibbins had a Florida address, and informed him that he had been stopped for crossing the fog line. Bauch then ran Bibbins’ license information through the police computer and discovered no problems. He returned to Bibbins’ truck and, just before writing a citation for failure to maintain lane, stated, “Do you mind if I ask you a question?” When Bibbins responded, “Sure,” Bauch told him that Spalding County had a problem with “people driving through with large amounts of drugs, marijuana, and guns, and currency related to the drug trade.” Bauch then asked Bibbins whether he could search Bibbins’ vehicle for contraband. At that point, Bauch was still holding Bibbins’ license in preparation for writing out a traffic ticket. Based upon Bibbins’ reply, a search was conducted and approximately four pounds of marijuana was discovered. The officer then arrested Bib-bins and cited him for the drug possession and the lane violation. Held:

By this appeal, we are squarely presented with the opportunity to address an issue that — as the transcript of the motion to suppress hearing amply demonstrates — has caused considerable consternation in law enforcement circles, as well as with bench and bar, i.e., whether asking for consent to search for drugs during the course of a brief, ongoing traffic stop can, in and of itself, be a Fourth Amendment violation so as to make a valid detention “illegal,” thereby rendering any consent to search the product of such illegal detention. This Court welcomes the chance to consider this issue, since the confusion that can be generated by the application of Fourth Amendment legal principles in the “real world” has not gone unnoticed. We who parent wisdom through written opinion also recognize that “[m]ore wisdom is latent in things as they are than in all the words men use.”¹ So, a pragmatic deliberation encompassing the views of other jurisdictions on this issue is warranted and due.

1. In the field, even when officers have no basis for suspecting a person, they may approach and request consent to search for drugs.² This is a “first tier” encounter, and the request to search, itself, does not turn the encounter into an illegal detention: “it is clear that merely requesting consent for a search is not a seizure and does not require articulable suspicion.”³ So, too, an officer may detain a citizen when a traffic violation has been committed in his presence; this detention is a legitimate “second tier” encounter. However, in this instance, the dissent would find that an officer may not request consent to search for drugs; that the request, itself, turns the otherwise legitimate detention into a Fourth Amendment violation.

What an anomalous result. Approaching a person to request consent to search causes him to stop for at least the time needed to hear the request and respond, which delay could be called a “detention,” though it is not. Yet the same request asked of someone already lawfully detained causes no undue delay, but is considered by the dissent to create an unlawful “detention.” If a request to search does not turn a first tier encounter into an invalid detention, the same request does not turn a second tier encounter into an invalid detention. After all, a refusal is an authorized result in both instances. Rather, “police questioning, by itself, is unlikely to result in a Fourth Amendment violation.”⁴ Indeed,

a police officer’s questioning, even on a subject unrelated to the purpose of the stop, is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure____[T]he issue regarding unrelated questions concerns not the content of the questions, but their impact on the duration of the stop____Therefore, only unrelated questions which unreasonably prolong the detention are unlawful; detention, not questioning, is the evil at which Terry’s prohibition is aimed.⁵

In State v. Gibbons,⁶ this Court considered a Terry detention in which an officer instituted a valid traffic stop for a seat belt violation, but he performed no act necessary to discharge the duties that he had incurred by virtue of the traffic stop: he did not conduct a license check, vehicle check, or insurance check; and he did not make any inquiry relating to the traffic violation for which the stop was made. Nor did he ever indicate that the detainee would be cited for a seat belt violation. In fact, the officer admitted that he obtained the detainee’s driver’s license, retained it, and thereafter asked numerous, wide-ranging questions simply because he had “an uneasy feeling” about the detainee.⁷ Under the specific facts of Gibbons, the detention following the initial stop of the vehicle appeared to be a pretext to furnish the officer solely with a forum to ask questions, not to pursue the ends of a legitimate traffic stop. Consequently, we upheld the trial court’s grant of the motion to suppress. Central to our decision, however, was the unreasonable prolongation of the duration of the traffic stop solely in order to ask questions: “It [was] this continued detention that [made] the questioning and request to search without reasonable suspicion of criminal activity impermissible.”⁸ This distinction must not be lost: the unreasonable prolongation of the duration of the seizure — not the content of the questions — invalidated the stop.⁹

It must also be understood that the duration of a traffic stop is not synonymous with its “scope,” and for several years now, this has been a gray area. The issue of the “scope” of a search and seizure was first articulated in Terry, itself, where it was held that a search and seizure must be “reasonably related in scope to the circumstances which justified the interference in the first place”;¹⁰ to that end, a traffic detention “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.”¹¹ A simplistic interpretation of the term “purpose” might propel the conclusion that it refers to only the specific traffic offense that inspired the pull-over, and thus, any action or inquiry unrelated to that specific traffic offense is impermissible. But to accept this interpretation would be to deny the realities of a traffic stop, which has as its “purpose” the enforcement of traffic laws for highway public safety,¹² and in which law enforcement has never been restricted simply to writing out a ticket and ending the encounter. Instead, an officer’s duties relative to any traffic detention have always included a computerized check of license, registration, vehicle identification number (VIN), and identification, regardless of the specific violation involved. “The foremost method of enforcing traffic and vehicle safety regulations, it must be recalled, is acting upon observed violations. Vehicle stops for traffic violations occur countless times each day; and on these occasions, licenses and registration papers are subject to inspection and drivers without them will be ascertained.”¹³ Certainly, “[sjuch checks serve a valid traffic and general law enforcement purpose as they warn the responding officer of any known dangers about the person stopped and the status of the car. They are also closely related to the purpose for the initial detention — traffic safety and security.”¹⁴ During the course of an ongoing traffic stop where these duties are being diligently pursued, this Court has long allowed law enforcement to ask brief, general investigative questions such as those related to travel plans, itinerary, and ownership of the vehicle.¹⁵ Comparable questions have been approved in other jurisdictions as relating to the scope of any traffic investigation.¹⁶ And such questions asked during the course of a traffic violation investigation do not unreasonably prolong the duration of the stop. As a practical matter, it takes time to check a detainee’s license and registration and to complete a citation or warning, whether brief general investigative questions are asked or not; as long as the questions do not unreasonably delay the accomplishment of these activities, the stop has not been prolonged.¹⁷ Also, under the same circumstances, the highest court in this nation has recognized the authority of an officer to ask a drug-related question during the course of a traffic stop, e.g., “Are you carrying any illegal contraband in your car? Any weapons of any kind, drugs, anything like that?”¹⁸ Such an inquiry is reasonably related to legitimate highway public safety concerns “in light of the problem of interstate drug traffic.”¹⁹ It is minimally intrusive and does not unreasonably prolong an ongoing detention.²⁰ So, too, during the course of an ongoing traffic investigation, a simple request for consent to search is not impermissible and does not cause unreasonable delay.²¹ As one of our sister states determined when considering the same issues we speak to today,

[Defendant] argues . . . that the very asking of the first question about drugs and firearms, without a reasonable suspicion that he possessed either, transformed the legal stop into an illegal stop, making his consent automatically invalid. In Robinette, [supra,] the police asked the suspect the same question, immediately followed by a request to search, just as in this case. The [United States Supreme] Court in Robinette did not expressly decide whether the asking of this question and asking permission to search violated the Fourth Amendment. However, we have difficulty in reconciling its conclusion — that Robinette’s consent to search, if voluntary based on all the circumstances, is valid — with [defendant’s] proposition that the consent is invalid solely because the officers could not legally ask to search in the first place.²²

This Court’s long-held position on this issue is illustrated as follows:

During this valid traffic stop, [the trooper] asked [the defendant] about weapons and drugs and then asked for consent to search. [Defendant] claims that the police officer’s mere asking of the questions, which admittedly did not prolong the stop, was in and of itself a violation of his constitutional rights and rendered his consent invalid. We have previously rejected such a notion. Having already effected a valid stop of the vehicle, the trooper certainly did not violate the appellant’s Fourth Amendment rights merely by requesting such consent.²³

This holding and the numerous cases which reflect it have never been overruled and are binding authority on this Court.

Truly, from the sheer volume of cases cited, both supra and by the dissent, it bears recognition that the disarray generated through the practical application of complex Fourth Amendment issues is extensive. Conflict exists. Yet, it is not only incorrect but a deep oversimplification to say, as the dissent has, that the Eighth, Ninth, and Tenth Circuits “have held that an officer may not ask questions during a traffic stop that are unrelated to the purpose of the original stop.” Such a blanket statement ignores the struggle these circuits have had with this issue, a struggle that mirrors our own. Like here, there is a “split in authority” within the circuits themselves. Scratch the surface of any of the cases cited by the dissent, and additional cases revisiting the issue for an alternate result will be revealed. For example, the dissent’s multiple cites to the Tenth Circuit case, United States v. Holt,24 for the proposition that questioning, itself, may be a Fourth Amendment violation ignores that circuit’s more recent foray into this arena, United States v. Oliver.25 Oliver went to great lengths to distinguish Holt, asserting that Holt had not meant to go as far as some might have it; that Holt stood only for “reasonableness” in any detention and that, “[questioning in itself does not constitute a search or seizure.”²⁶ Indeed, Oliver reaffirmed the Tenth Circuit’s prior statement in United States v. Walker.27

[O]ur determination that the defendant was unlawfully detained might be different if the questioning by the officer did not delay the stop beyond the measure of time necessary to issue a citation. For example, this case would be changed significantly if the officer asked the same questions while awaiting the results of an NCIC license or registration inquiry.²⁸

The point is that the mixed messages reflected in the case law demonstrate the slippery slope of confusion created when Fourth Amendment search and seizure law is used to control perceived police abuses against which the Fourth Amendment was never designed to protect. That police questioning occurs during a traffic seizure does not make the questioning a Fourth Amendment issue; the seizure is. And the dissent’s justification that this issue is “far from settled” in other jurisdictions is hardly a rationale to leave it so in this one.²⁹

Today, this Court takes a step toward clarity, as have the courts from many other jurisdictions. We reaffirm the long-standing precepts addressed above, recognizing that the “scope” of a traffic detention has never been limited to the isolated traffic offense that led to the pull-over, but is broad enough to encompass identified, legitimate law enforcement goals relating to highway public safety, as long as the pursuit of those goals does not unreasonably prolong the duration of a valid, ongoing stop.³⁰

2. In a hearing on a motion to suppress, the focus on the unreasonable prolongation of the duration of an ongoing, valid traffic investigation — decided on a case-by-case basis — precludes a deliberate delay in issuing a citation while conducting a lengthy “fishing expedition,” as occurred in the Gibbons case. In assessing whether a valid, ongoing traffic investigation is too long in duration to be justified, common sense must reign.³¹ The “touchstone of the Fourth Amendment is reasonableness . . . measured in objective terms by examining the totality of the circumstances.”³² Therefore, a reviewing court may consider many factors in determining whether the duration of an ongoing traffic detention has been unreasonably prolonged, by questioning or otherwise. These factors may include the length of time involved; however, it should be remembered that the establishment of a rigid time frame for traffic detentions has been expressly rejected by Fourth Amendment jurisprudence.³³ Additional inquiry should examine whether during the detention the police were diligently pursuing “a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant”;³⁴ whether (as in Gibbons) wide-ranging questioning extended the duration of the stop beyond a reasonably brief period;³⁵ and whether there was an unwarranted delay in returning a driver’s license or issuing a citation which extended the stop’s duration unreasonably. This list is by no means exhaustive; it is not meant to be. Pragmatically, as the cases before this Court illustrate, the permutations between traffic stops are as great as the variations between the participants and the circumstances surrounding each encounter.

In the case before us, the evidence is that the brief, nine-minute traffic detention had not been concluded at the time the officer requested consent to search. During the ongoing detention, the record shows that the officer conducted a license and insurance check; that the checks were diligently pursued; that the officer was bolding Bibbins’ license in preparation for writing out a traffic citation; that the request for consent to search was made immediately after the license was checked and just before the ticket was written and thus the request, itself, did not cause unreasonable delay; that the search allegedly agreed to by Bibbins postponed the issuance of the lane violation citation and thus such postponement was acquiesced in; that the citation was in fact issued after the search; and that no extensive questioning occurred. There is no claim that the traffic stop was illegal, and the described circumstances meet the State’s burden to establish the validity of the ongoing traffic investigation. The evidentiary burden to prove an illegality then shifted to Bibbins.³⁶ Bibbins did not meet his burden to show that the officer’s request to search unreasonably prolonged the duration of the nine-minute traffic detention so as to render the ongoing traffic detention illegal. Accordingly, any consent to search was not the product of an “illegal detention.” The trial court’s grant of Bibbins’ motion to suppress was error.

3. Having concluded that the officer’s request to search Bibbins’ car for contraband did not render the otherwise valid traffic stop an illegal detention, another issue remains: whether Bibbins voluntarily consented to the search of his car. The analysis of this issue should not be confused with the analysis discussed above. The question of whether the duration of an ongoing, valid traffic detention and investigation is “reasonable” involves a separate inquiry. If the answer is no, an illegal detention results. At that point, it matters not whether the stop was “ongoing” or “concluded,” the issue remains the same: whether the subsequent consent was the product of the prior illegality or sufficiently attenuated therefrom.³⁷

If, however, as in this case, the duration of the ongoing detention and investigation was reasonable, the question is whether objective factors demonstrate that the detainee’s consent was voluntary. In that regard, the circumstances surrounding a traffic stop do not in and of themselves prevent a detainee from voluntarily consenting to a search of his vehicle. As the United States Supreme Court explained in its examination of the issue of voluntary consent during a traffic stop,

There is no reason to believe, under circumstances such as are present here, that the response to a policeman’s question is presumptively coerced; and there is, therefore, no reason to reject the traditional test for determining the voluntariness of a person’s response.³⁸

This traditional test looks to the totality of the circumstances, including factors such as the youth of the accused, his lack of education, his lack of intelligence, the length of detention, whether there was an advisement of constitutional rights, the repeated and prolonged nature of any questioning, the use of physical punishment, and the psychological impact of all these factors on the accused; certainly, no single factor is controlling.³⁹ Further, advisement of the right to refuse is a consideration, but it is not determinative.⁴⁰ Altogether, the role of filtering the wheat from the chaff in relation to the voluntariness of any consent belongs to the trial court. The appellate courts cannot judicially legislate against the potential for coercive police conduct in attaining voluntary consent anymore than we can ignore the legality of a search carried out after consent has been voluntarily given.

The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. To approve such searches without the most careful scrutiny would sanction the possibility of official coercion; to place artificial restrictions upon such searches would jeopardize their basic validity.⁴¹

We leave the role where it belongs. In the case before us, the trial court declined to make a factual determination as to whether consent was given and, if so, whether such consent was voluntary. We remand this case to the court below for this determination, with a right to seek an appeal through established channels, depending upon the result.⁴²

Judgment reversed and case remanded with direction.

Andrews, P. J., Johnson, P. J., Miller and Ellington, JJ., concur. Ruffin, P. J., and Adams, J., dissent.

1 Antoine de Saint-Exupery.

2 Palmer v. State, 257 Ga. App. 650, 652 (1) (572 SE2d 27) (2002).

3 Stokes v. State, 238 Ga. App. 230, 232 (518 SE2d 447) (1999). See also Florida v. Bostick, 501 U. S. 429, 434 (111 SC 2382, 115 LE2d 389) (1991) (police questioning does not constitute a seizure for Fourth Amendment purposes).

4 Immigration & Naturalization Svc. v. Delgado, 466 U. S. 210, 216 (104 SC 1758, 80 LE2d 247) (1984).

5 (Citation and punctuation omitted.) United States v. Purcell, 236 F3d 1274, 1279-1280 (11th Cir. 2001).

6 248 Ga. App. 859 (547 SE2d 679) (2001).

7 Id. at 863.

8 Id. at 864 (Pope, P. J., concurring specially).

9 See United States v. Machuca-Barrera, 261 F3d 425, 432 (5th Cir. 2001) (it is “the length of the detention, not the questions asked, that makes a specific stop unreasonable”); accord United States v. Brigham, 382 F3d 500, 508 (5th Cir. 2004) (en banc).

10 Terry v. Ohio, 392 U. S. 1, 20 (88 SC 1868, 20 LE2d 889) (1968).

11 (Emphasis supplied.) Florida v. Royer, 460 U. S. 491, 500 (103 SC 1319, 75 LE2d 229) (1983).

12 Delaware v. Prouse, 440 U. S. 648, 658-660 (99 SC 1391, 59 LE2d 660) (1979).

13 Id. at 659.

14 Kothe v. State, 152 SW3d 54, 64, n. 36 (Tex. Crim. App. 2004); State v. Pegeese, 351 N.J. Super. 25, 31 (796 A2d 934) (2002).

15 See, e.g., United States v. Hardy, 855 F2d 753 (I) (N.D. Ga. 1988); Almond v. State, 242 Ga. App. 650 (530 SE2d 750) (2000); State v. Hall, 235 Ga. App. 412 (509 SE2d 701) (1998); Sprauve v. State, 229 Ga. App. 478 (494 SE2d 294) (1997); Gamble v. State, 223 Ga. App. 653, 655-656 (478 SE2d 455) (1996); Sutton v. State, 223 Ga. App. 721, 723-724 (478 SE2d 910) (1996); Pitts v. State, 221 Ga. App. 309 (471 SE2d 270) (1996); Roundtree v. State, 213 Ga. App. 793 (446 SE2d 204) (1994); Benavides v. State, 193 Ga. App. 737 (388 SE2d 886) (1989); State v. Combs, 191 Ga. App. 625 (382 SE2d 691) (1989); O’Keefe v. State, 189 Ga. App. 519, 520 (376 SE2d 406) (1988); Lombardo v. State, 187 Ga. App. 440 (370 SE2d 503) (1988); Smith v. State, 184 Ga. App. 304, 305-306 (361 SE2d 215) (1987); Daugherty v. State, 182 Ga. App. 730 (356 SE2d 902) (1987).

16 Berkemer v. McCarty, 468 U. S. 420, 439 (104 SC 3138, 82 LE2d 317) (1984). Accord United States v. Jeffus, 22 F3d 554, 556-557 (4th Cir. 1994); United States v. Villa, 153 FSupp.2d 1247 (2001); United States v. Purcell, supra at 1279-1280; United States v. Shabazz, 993 F2d 431 (5th Cir. 1993); United States v. Palomino, 100 F3d 446, 449-450 (6th Cir. 1996); United States v. Bullock, 48 Fed. Appx. 912, 2002 U. S. App. LEXIS 22511 (2002); State v. Griffith, 236 Wis.2d 48 (613 NW2d 72, 78-85) (2000); State v. McClendon, 130 N.C. App. 368, 375 (502 SE2d 902) (1998).

17 Kothe v. State, supra; accord 4 W. LaFave, Search and Seizures § 9.2 (f), at 51-58. See also United States v. Sharpe, 470 U. S. 675 (105 SC 1568, 1576, 84 LE2d 605) (1985) (“Clearly this case does not involve any delay unnecessary to the legitimate investigation of the law enforcement officers.”); United States v. Zucco, 71 F3d 188, 190-191 (5th Cir. 1995) (Terry detention not prolonged merely because officer waited for computer check); State v. Maginnis, 150 SW3d 117 (Mo. Ct. App. 2004) (as long as the officer is running the records check, and issuing a citation, the officer may continue to conduct a reasonable investigation of the traffic violation by conversing with the driver).

18 Ohio v. Robinette, 519 U. S. 33, 38-39 (117 SC 417, 136 LE2d 347) (1996); Delaware v. Prouse, supra at 654.

19 State v. Hall, supra at 415; accord O’Keefe v. State, supra at 525; Kan v. State, 199 Ga. App. 170, 171 (1), (2) (404 SE2d 281) (1991).

20 State v. Akuba, 686 NW2d 406, 417-418 (S.D. 2004); State v. Hickman, 335 N.J. Super. 623, 636-637 (763 A2d 330) (2000); State v. Griffith, supra; State v. Gaulrapp, 207 Wis.2d 600, 608-609 (558 NW2d 696) (1996).

21 Schneckloth v. Bustamante, 412 U. S. 218 (93 SC 2041, 36 LE2d 854) (1973) (upholding a request to search made during a traffic stop). See also United States v. Wellman, 185 F3d 651, 656 (6th Cir. 1999) (traffic stop not unconstitutionally extended by obtaining consent to search motor home while officer was waiting for information on defendant’s driver’s license and vehicle registration); accord United States v. Brigham, supra at 509; People v. Bell, 43 Cal. App.4th 754, 765-768 (51 Cal. Rptr. 2d 115) (1996); State v. Akuba, supra at 417-418; State v. Watkins, 73 SW3d 881, 883 (Mo. App. 2002); State v. Hunter, 107 N.C. App. 402, 407 (420 SE2d 700) (1992), overruled on other grounds, State v. Pipkins, 337 N.C. 431 (446 SE2d 360) (1994); State v. Hyland, 840 SW2d 219, 221 (Mo. 1992); State v. Acinelli, 191 Ariz. 66, 69 (2) (952 P2d 304) (1997).

22 (Emphasis supplied.) State v. Gaulrapp, supra at 608.

23 (Punctuation omitted.) Henderson v. State, 250 Ga. App. 278, 279 (551 SE2d 400) (2001) (physical precedent only), citing Kan v. State, supra at 171; Pupo v. State, 187 Ga. App. 765, 766 (2) (371 SE2d 219) (1988). Accord State v. Benjamin, 266 Ga. App. 205, 206 (2) (596 SE2d 623) (2004); Anderson v. State, 265 Ga. App. 146, 150 (2) (592 SE2d 910) (2004); Navicky v. State, 245 Ga. App. 284, 285 (2) (537 SE2d 740) (2000); Gamble v. State, 223 Ga. App. 653, 656 (3) (478 SE2d 455) (1996).

24 264 F3d 1215 (10th Cir. 2001).

25 3 63 F3d 1061 (lOth Cir. 2004).

26 Id. at 1067.

27 9 33 F2d 812 (10th Cir. 1991).

28 Id. at 816, n. 2; see United States v. Oliver, supra at 1066.

29 Contrary to the dissent’s urging, the Supreme Court of Georgia case of Daniel v. State, 277 Ga. 840 (597 SE2d 116) (2004), clearly held that “[o]nce the underlying basis for the initial traffic stop has concluded,” lengthening a detention must be either consensual or supported by articulable suspicion. (Emphasis supplied.) Id. at 841. Daniel did not address questions asked during the course of a valid stop that did not lengthen the detention. Accordingly, the post-stop “consensual encounter” analysis employed by Daniel is not applicable here, in the middle of an ongoing traffic stop which is nonconsensual from the inception. Instead, during an ongoing traffic detention, “the issue regarding unrelated questions concerns not the content of the questions, but their impact on the duration of the stop.” United States v. Purcell, supra at 1279-1280. Moreover, Daniel’s emphasis on the “lengthening of the detention” appears to dispel the dissent’s position that a question, in itself, can constitute a Fourth Amendment violation.

30 See Illinois v. Lidster, 540 U. S. 419 (124 SC 885, 157 LE2d 843) (2004) (approving a roadblock/checkpoint for the primary purpose of general law enforcement because “Law enforcement officer [s] may... request any person to furnish information or otherwise cooperate in the . . . prevention of crime.”) (punctuation omitted).

31 In that regard, the further inapplicability of Daniel v. State, supra, to the dissent’s analysis is illustrated by the dissent’s decidedly circular reasoning: the dissent quotes Daniel: “ ‘[e]ven where the driver and vehicle occupants have been illegally detained, the driver or owner of the vehicle may nonetheless voluntarily consent to a search of the vehicle.’ ” Daniel at 846. But the dissent holds, “even if Bibbins voluntarily agreed to the vehicle search, . . . the illegal detention tainted the consent.” How can it he that under Daniel, voluntary consent can cure an illegal detention, but under the dissent, an illegal detention will taint voluntary consent? The source of the conflict is the dissent’s belief that the request to search for drugs creates the illegal detention because it is unrelated to the traffic violation that provoked the stop. When the request, itself, creates the illegality, any consent will always be the “product” of the illegal request and thus tainted, making Daniel impossible to apply rationally.

32 (Citation and punctuation omitted.) Ohio v. Robinette, supra at 39.

33 United States v. Sharpe, supra at 686-687.

34 Id. at 686.

35 State v. Gibbons, supra at 860-863 (2).

36 United States v. Sharpe, supra at 687-688 (defendants must present evidence that the officers were dilatory in their investigation). See also Davis v. State, 266 Ga. 212 (465SE2d438) (1996); Watts v. State, 274 Ga. 373, 375-376 (2) (552 SE2d 823) (2001). Both Davis and Watts contain alegal discussion of the shifting burdens involved in OCGA§ 17-5-30 (b), which governs all motions to suppress in Georgia. Thus, while the facts of Davis and Watts may have involved a search warrant, the legal, “burden shifting” discussion contained therein applies to this case and all other cases involving motions to suppress.

37 See Daniel v. State, supra at 846.

38 Schneckloth v. Bustamonte, supra at 247.

39 Id. at 226; Hunter v. State, 190 Ga. App. 52, 53 (1) (378 SE2d 338) (1989).

40 Schneckloth v. Bustamonte, supra at 226-227.

41 Id. at 229.

42 OCGA §§ 5-6-34 (b); 5-7-1 (a) (4).