State v. Price

746 S.E.2d 258, 322 Ga. App. 778, 2013 Fulton County D. Rep. 2389, 2013 WL 3455720, 2013 Ga. App. LEXIS 610
CourtCourt of Appeals of Georgia
DecidedJuly 10, 2013
DocketA13A0212
StatusPublished
Cited by9 cases

This text of 746 S.E.2d 258 (State v. Price) 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
State v. Price, 746 S.E.2d 258, 322 Ga. App. 778, 2013 Fulton County D. Rep. 2389, 2013 WL 3455720, 2013 Ga. App. LEXIS 610 (Ga. Ct. App. 2013).

Opinion

MCMILLIAN, Judge.

Appellees Mykell Price and Jonathan Anderson were indicted with the offense of trafficking in cocaine (OCGA § 16-13-31 (a) (1) (A)), and Anderson was also charged with the offense of operating a motor vehicle with an illegal window tint (OCGA § 40-8-73.1). Each appellee filed a motion to suppress, asserting that the traffic stop giving rise to these charges was pretextual and that the traffic stop was unreasonably prolonged. In addition, Price asserted that he was placed under arrest and questioned without being advised of his [779]*779Miranda rights. Following a hearing, the motions to suppress were granted, and the State appeals.

Generally, on appeal from a trial court’s ruling on a motion to suppress, the trial court’s finding as to disputed facts will be sustained unless clearly erroneous. But, as here, where the State’s evidence presented at the motion to suppress hearing was uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to the undisputed facts is subject to de novo appellate review. Jones v. State, 314 Ga. App. 107 (722 SE2d 918) (2012); Walker v. State, 314 Ga. App. 67, 67 (1) (722 SE2d 887) (2012). Following our review pursuant to this standard, we reverse.

On November 3, 2011, at approximately 2:00 p.m., Price and Anderson were traveling on 1-16 when a patrolling Bulloch County deputy sheriff, Deputy Ray Rodriguez, observed that the windows of their vehicle appeared to be illegally tinted. The deputy conducted a traffic stop, checked the windows, and determined the tinted windows were in violation of the law. The deputy also noted that the driver, Anderson, was extremely nervous, his eyes were glazed, and there was an odor of burnt marijuana coming from the vehicle. Based on these observations, the deputy summoned a Statesboro police officer accompanied by a drug dog. Sergeant Jason Kearney with the Bulloch County Sheriff’s Department also responded. The Statesboro K-9 unit was nearby and arrived approximately five or six minutes after the traffic stop was initiated. The dog was deployed to execute a free air sniff around appellees’ vehicle and within less than a minute gave a positive response to the odor of one of the substances he was trained to detect.

When Sergeant Kearney arrived at the scene, he began an attempt to identify the passenger, Price. This process was still underway when the K-9 unit arrived. Kearney had observed that upon his initial approach Price was very nervous and seemed to be shaking. After the dog alerted, Kearney got Price out of the vehicle to continue his investigation. Price continued to be nervous and shaking, and the sergeant placed him in handcuffs due to concerns that he was about to flee or fight the officers. As Price was being handcuffed, Kearney told him that he was not under arrest, but was being detained. After Price was handcuffed, Kearney asked him whether he had anything illegal on his person. Price responded that he had “a little bit of. . . weed, in his pocket” that is marijuana, and indicated where he had the contraband which the sergeant described as “half of a joint of marijuana.” The sergeant testified that upon finding the contraband, Price was placed under arrest and was further searched. The search disclosed two ounces of cocaine in Price’s shoe.

[780]*780Because the trial court did not explain the reason for granting the motions to suppress, we will address each of the potential grounds asserted by the appellees in their motions to suppress, which the State contends do not support the granting of the motions. To begin with, we find that the traffic stop of the vehicle was not pretextual because the undisputed evidence was that the officer observed what he believed to be a window tint violation, and upon testing the window, the officer testified that its tint was in violation of OCGA § 40-8-73.1. “If an officer witnesses a traffic violation, the ensuing stop is never pretextual, regardless of the officer’s subjective intentions.” Cuaresma v. State, 292 Ga. App. 43, 45-46 (1) (663 SE2d 396) (2008). See also Walker v. State, 322 Ga. App. 821 (744 SE2d 385) (2013); Berry v. State, 318 Ga. App. 806, 808 (1), n. 3 (734 SE2d 768) (2012).

Appellees also maintain that the traffic stop was unduly prolonged by the attempt to identify the passenger, Price. Based upon concerns for officer safety, we have held that “a police officer may check for outstanding warrants or criminal histories on the occupants of a vehicle at a valid traffic stop ... as long as under the circumstances they do not unreasonably prolong the stop.” (Citation and punctuation omitted.) Matthews v. State, 294 Ga. App. 836, 840 (1) (d) (670 SE2d 520) (2008). In this instance, the Sheriff’s Department sergeant arrived and began the identification check on Price while the deputy who had made the traffic stop was still talking to Anderson. The sergeant had not finished when the dog arrived and alerted. The time reasonably necessary to accomplish the purpose of a traffic stop includes the time necessary to run a computer check on the driver and on any passengers. See Davis v. State, 322 Ga. App. 217 (744 SE2d 393) (2013) (stop not unreasonably prolonged to run warrant search on passengers); Young v. State, 310 Ga. App. 270, 272-273 (712 SE2d 652) (2011) (K-9 unit arrived while officers still in process of obtaining criminal histories of driver and passenger). Thus, appellees’ theory that time is allowed for a computer check of only the driver, but not the passengers, is incorrect.

And this Court has upheld on numerous occasions traffic stops that were less than ten minutes to allow officers to run criminal histories and to complete any paperwork for issuing the citation. See, e.g., Young, 310 Ga. App. at 270 (ten-minute wait); Wilson v. State, 318 Ga. App. 59 (733 SE2d 365) (2012) (K-9 requested while officer was issuing citations for the alleged traffic violations and arrived in ten minutes); Hardaway v. State, 309 Ga. App. 432 (710 SE2d 634) (2011) (search not unreasonably prolonged when drug dog arrived five minutes after request and while officer was still writing the ticket).

[781]*781Furthermore, unlike Nunnally v. State, 310 Ga. App. 183, 187 (713 SE2d 408) (2011), the evidence in this case shows no abandonment or deviation by the officers from the proper purposes of a traffic stop prior to the dog alerting on the vehicle. Thus, we find that there was no extension of the stop before officers received a basis independent of the traffic stop to investigate a reasonable suspicion that appellees were in possession of contraband. The traffic stop was properly conducted, and appellees’ detention was not improperly extended.

Finally, Price asserts that he was placed under arrest when he stepped out of the vehicle and placed in handcuffs, and that incriminating statements he made without being advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966), should be suppressed.

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Bluebook (online)
746 S.E.2d 258, 322 Ga. App. 778, 2013 Fulton County D. Rep. 2389, 2013 WL 3455720, 2013 Ga. App. LEXIS 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-price-gactapp-2013.