Taylor v. the State

FIFTH DIVISION
MCFADDEN, P. J.,
BRANCH and BETHEL, JJ.

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.
http://www.gaappeals.us/rules

September 14, 2017

In the Court of Appeals of Georgia
A17A1043. TAYLOR v. THE STATE.

BETHEL, Judge.

Derwin Miles Taylor appeals from the denial of his motion for a new trial

following his conviction on a single count of trafficking in marijuana, for which he

was sentenced to 30 years imprisonment. On appeal, as in his motion for a new trial,

he contends that the trial court erred in pretrial proceedings by denying his motion to

suppress evidence obtained from a search of his vehicle during a traffic stop. Because

we agree with the trial court that the law enforcement officer who stopped Taylor

articulated a reasonable suspicion of criminal activity sufficient to allow him to detain

Taylor for further investigation, we affirm the trial court’s denial of Taylor’s motion

to suppress and his motion for a new trial.
 On appeal from a denial of a motion to suppress, “this Court must construe the

evidence most favorably to uphold the ruling of the trial court.” Jones v. State, 253

Ga. App. 870, 870 (560 SE2d 749) (2002) (citation omitted). The “trial court’s

application of law to facts which are undisputed is subject to de novo review.” Id.

(citation omitted).

Here, the relevant evidence consisted entirely of testimony at a hearing on

Taylor’s motion to suppress by the deputy who performed the search on Taylor’s

vehicle. The deputy was a canine handler with the county’s uniform patrol division.

He testified that he stopped Taylor while driving on Interstate 75 for failure to

maintain lane and for having window tint that was too dark. As Taylor was providing

the deputy with his license and registration, the deputy observed in Taylor’s car

numerous air fresheners and packages that were releasing an “overwhelming” odor

of air freshener. The deputy also noticed Taylor’s hands shaking as he provided his

license and registration, a reaction the deputy took as a sign of nervousness on

Taylor’s part.

Taylor exited his vehicle at the deputy’s request, and he stood outside the

vehicle as the deputy wrote two traffic warnings for Taylor. The two had a prolonged

discussion outside the vehicle in which Taylor answered a number of the deputy’s

2
questions, including where he was coming from at the time of the traffic stop. Taylor

told the deputy he had been in Atlanta visiting his uncle in the hospital but struggled

to identify where he was hospitalized or why he was sick. The deputy also testified

that, in the course of their discussion, Taylor gave conflicting statements about where

he had stayed the night before, first telling him that he stayed in an apartment and

later saying that he had stayed in a hotel.

During a break in this conversation, the deputy stepped away for a moment to

call for backup and then returned to speak to Taylor again.1 The deputy completed the

forms for the two warnings and then placed a call to the dispatcher with Taylor’s

driver’s license and tag number. The deputy then asked Taylor for consent to search

his vehicle, telling Taylor that he was aware of “a lot of criminal activity going up

and down this interstate.” Taylor refused the deputy’s request for consent to search.

At that time, the deputy was still holding Taylor’s license and registration along with

a written warning for the traffic offenses, and the dispatcher had not yet confirmed

Taylor’s license and registration information.

1
The deputy testified that he called for backup at this point in his encounter
with Taylor because he noted so many “red flags” and believed that “more than just
a normal routine traffic stop” was unfolding. The deputy further explained that he
called for backup before seeking Taylor’s consent to search the vehicle out of concern
for safety.

3
 After Taylor refused to allow the deputy to search the vehicle, the deputy

indicated to Taylor that he was going to bring over a K-9 dog with specialized

narcotics training to sniff Taylor’s vehicle. As the deputy was walking to his patrol

car to retrieve the dog, the dispatcher replied to the deputy confirming Taylor’s

license and registration information. After collecting the dog from his patrol car, the

deputy brought the dog to Taylor’s car to conduct a sniff of the vehicle. The dog

provided a positive response to the sniff, and the deputy proceeded to search Taylor’s

vehicle, whereupon he found a large suitcase in the trunk containing a significant

quantity of marijuana.

Taylor was arrested and charged with trafficking in marijuana. Before trial,

Taylor moved to suppress all evidence seized from his vehicle by the deputy. The trial

court denied the motion through a series of orders.2 A bench trial followed at which

evidence from the search of the vehicle was admitted. Taylor was convicted, and he

filed a motion for a new trial. The trial court denied that motion, and this appeal

followed.

2
After reconsideration and a second hearing, the trial court again denied the
motion to suppress. The trial judge filed a certificate of immediate review, but this
Court denied Taylor’s petition for leave to file an interlocutory appeal. See Case
number A16I019.

4
 Taylor argues that the deputy lacked a reasonable articulable suspicion of

criminal activity sufficient to detain Taylor for a drug sniff of the vehicle after the

purpose of the traffic stop had concluded. Absent such reasonable suspicion, the

extension of an otherwise completed traffic stop in order to conduct a free-air search

of a vehicle using a drug dog violates the Fourth Amendment’s protection against

unreasonable searches and seizures. Rodriguez v. United States, 135 SCt 1609, 1614

(191 LEd2d 492) (2015). An officer who initiates a lawful traffic stop, however, can

shift into a criminal investigation so long as the officer can articulate reasonable

suspicion that criminal activity is occurring. See Rodriguez v. State, 295 Ga. 362, 369

(761 SE2d 19) (2014).

To satisfy this “reasonable suspicion” standard, the officer’s
investigation must be justified by specific articulable facts sufficient to
give rise to a reasonable suspicion of criminal conduct. Articulable
suspicion requires a particularized and objective basis for suspecting
that a citizen is involved in criminal activity. Although this suspicion
need not meet the higher standard of probable cause, it must be more
than a mere caprice or a hunch.

State v. Whitt, 277 Ga. App. 49, 50 (625 SE2d 418) (2005) (citation and emphasis

omitted).

5
 To determine whether a reasonable articulable suspicion exists, courts
must look to the totality of the circumstances. Based upon that whole
picture the detaining officers must have a particularized and objective
basis for suspecting the particular person stopped of criminal activity.

State v. Thompson, 256 Ga. App. 188, 189-90 (569 SE2d 254) (2002) (citations and

punctuation omitted). Ultimately, “[t]he State bears the burden of proving that the

search of the car was lawful, and to carry this burden, the State must show that it was

lawful to detain [the defendant] until the time the drug dog indicated the presence of

drugs.” Dominguez v. State, 310 Ga App. 370, 372 (714 SE2d 25) (2011) (citation

omitted).

Here, we agree with the trial court that the State has carried this burden, as the

totality of circumstances encountered by the deputy at the scene allowed him to form

the requisite level of suspicion necessary to convert the traffic stop into a broader

criminal investigation. The trial court found that Taylor’s supposed nervousness was

not a factor, on its own, that the deputy could consider in forming a reasonable

suspicion of criminal activity, and we agree with that determination. See Barraco v.

State, 244 Ga.App. 849, 852(2)(b), 537 S.E.2d 114 (2000) (“[e]ven when other

factors are present, nervous behavior of a person who has been stopped by an armed

law enforcement officer is not an unusual response and is not necessarily strong

6
evidence to support either reasonable suspicion or probable cause”). However, the

trial court determined, and we agree, that the strong smell of air fresheners in the

vehicle, Taylor’s vague and conflicting statements about his uncle’s illness and his

own whereabouts the night before, and the location of the traffic stop along a stretch

of Interstate 75 that was known by the deputy to be a drug trafficking corridor were

factors that allowed the deputy to form and articulate a reasonable suspicion of drug

activity.

Taylor suggests that this Court’s decision in State v. Thompson3 demonstrates

that the trial court’s determination was in error, arguing that Thompson indicates that

the occurrence of a stop along an interstate highway known to be a trafficking

corridor is not a sufficient basis of suspicion. In Thompson, when the stop was

initiated, the officer noted that the defendant was nervous and that there was a strong

smell of detergent and air fresheners coming from the car. 256 Ga. App. at 188. These

were the only bases of suspicion articulated by the officer who initiated the stop, even

though the opinion in Thompson reflects that the stopped occurred along Interstate

20. This Court again discounted the view that nervousness alone could form a

sufficient basis of suspicion, and ruled that “[a]lthough laundry detergent and dryer

3
256 Ga. App. 188, 189 (569 SE2d 254) (2002).

7
sheets can be used to mask the odor of an illegal substance, they are themselves legal

substances that can be used for a legal purpose and thus do not justify the officer’s

further detention of [the defendant] under the facts of this case.” Id. at 189 (emphasis

supplied). Taylor thus suggests that because his interactions with the officer, the

presence of air fresheners, and his location on Interstate 75 were the only factors the

deputy could consider in forming a suspicion, Thompson controls our analysis. We

disagree.

In this case, Taylor argues that it is “common knowledge” that Interstate 20 is

“just as much a drug corridor” as Interstate 75 and that the outcome of this case

should be identical to that in Thompson. However, in Thompson, even though the

facts set forth in this Court’s opinion show that the stop occurred on Interstate 20, it

does not appear that the officers in that case articulated the location of the stop as a

basis for their suspicion or that the court considered evidence that the area was a

known trafficking corridor. Thus, in Thompson, the officers were relying solely on

their observation of the defendant’s nervousness and the smell of detergent and air

freshener in forming their suspicion. See Id. at 190.

In this case, however, the trial court determined that the overwhelming smell

of air fresheners, the location of the stop along the interstate, and Taylor’s

8
inconsistent statements to the deputy were all factors that, in totality, could allow the

deputy to form the required suspicion. As this Court’s decisions in Wilson v. State4

and Richbow v. State5 indicate, the strong odor of air freshener along with other

seemingly innocuous activities may allow an officer to form a reasonable suspicion

that criminal activity is taking place.6 Additionally, an officer may consider

conflicting or vague stories presented by a person in the vehicle7 and the “modes or

patterns of operation of certain kinds of lawbreakers” in forming reasonable suspicion

of criminal activity. Thompson, 256 Ga. at 189 (citations omitted). Though we

acknowledge that Interstate 75, like any other public thoroughfare, may be traveled

for legitimate purposes, we are not blind to the considerable experience of law

enforcement agencies in dealing with those who use major interstate highways to

4
306 Ga. App. 286, 287-89 (2) (a)-(b) (702 SE2d 2 (2010).
5
293 Ga. App. 556, 559 (667 SE2d 418) (2008).
6
See also Vega v. State, 321 Ga. App. 682, 684 (742 SE2d 499) (2013)
(recognizing that, faced with other suspicious behaviors, officers may permissibly
infer that drivers who use strong air fresheners are doing so to hide the smell of drugs
or confuse drug-sniffing dogs).
7
Wilson, 306 Ga. App. at 289 (noting conflicts in statements made by vehicle’s
occupants and defendant’s inability to identify the location he had just visited as
factors the officer could consider in forming suspicion).

9
transport illegal substances. We are also cognizant that an experienced and properly

trained law enforcement officer may conclude that otherwise lawful activity which

takes place on a “known drug route” is actually evidence of ongoing criminal

activity.8 See Giles v. State, 284 Ga. App. 1, 1-3 (1) (642 SE2d 921) (2007). Thus,

because the facts of this case show that factors in addition to those considered in

Thompson formed part of the deputy’s suspicion, Thompson is inapposite to our

analysis.

We thus conclude that although Taylor’s conduct observed by the officer at the

time of the stop in this case may have been “susceptible to an innocent explanation,

it is also consistent with illegal activity.” Id. at 4 (citations and punctuation omitted).

Accordingly, we agree with the trial court that the totality of the circumstances

8
This case aptly illustrates this point. The video of the traffic stop captured by
the dashboard camera on the deputy’s patrol car shows that, upon discovering a large
package containing marijuana in Taylor’s car, the deputy gleefully exclaimed to
Taylor, “this ain’t my first rodeo!” While an officer’s training and experience alone
do not provide an officer carte blanche to initiate drug investigations, our cases do
credit an officer’s training and experience as factors to be considered when evaluating
otherwise lawful actions than an officer may interpret as “red flags” during a traffic
stop. See, e.g., Wilson, 306 Ga. App. at 289 (officer’s “knowledge of drug trafficking
in the area” was factor in upholding determination of reasonable suspicion); Giles,
284 Ga. App. at 4 (noting arresting officer’s “extensive interdiction training and
knowledge of drug smuggling patterns”); State v. Causey, 246 Ga. App. 829, 833 (1)
(b) (540 SE2d 696) (2000) (noting that officers’ “first-hand experience” with similar
offenses informs reasonable conclusions that criminal activity is taking place).

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encountered by the deputy–namely, the smell of air fresheners, the location of the

stop along what the officer knew to be a trafficking corridor, and the vague and

conflicting stories offered by Taylor–allowed him to form the reasonable suspicion

necessary to commence a criminal investigation. We therefore affirm the trial court’s

denial of Taylor’s motion to suppress, and, in turn, its denial of his motion for a new

trial.

Judgment affirmed. McFadden, P. J.,concurs specially. Branch, J., concurs.

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 A17A1043. TAYLOR v. THE STATE.

MCFADDEN, Presiding Judge, concurring specially.

The 20 to 25 air fresheners that were in use in Taylor’s car are strong evidence,

for which there is no likely innocent explanation. Cf. State v. Thompson, 256 Ga.

App. 188, 190 (569 SE2d 254) (2002) (“Although laundry detergent and dryer sheets

can be used to mask the odor of an illegal substance, they are themselves legal

substances that can be used for a legal purpose and thus do not justify the officer’s

further detention of Thompson under the facts of this case.”) That evidence is

bolstered by the evidence that the stop took place on a known drug route and by the

trial court’s written finding, which the evidence supports, that Taylor’s hands were

shaking when the deputy stopped him, even though the trial court characterized that
evidence as “relatively insignificant” when he announced his ruling at the end of the

suppression hearing. Those items are sufficient on the facts of this case to sustain a

finding of reasonable suspicion.

So I would not reach the question whether Taylor’s vague and conflicting

statements about his uncle’s illness and his own whereabouts the night before

constitute meaningful inconsistencies. See Nash v. State, 323 Ga. App. 438, 443 (746

SE2d 918) (2013); Migliore v. State, 240 Ga. App. 783, 786 (525 SE2d 166) (1999).

And I would avoid any suggestion that we defer to officers’ training and

experience when we perform the analysis required of us by the Fourth Amendment.

In the first place, the case would not be here if drugs had not been found. I do not

doubt that such training and experience enable officers to make determinations that

other persons, including judges, could not make — such as determinations about

“drug smuggling patterns, combined with [] objective observations indicating

criminal activity in accordance with those patterns[.]” Giles v. State, 284 Ga. App. 1,

4 (1) (642 SE2d 921) (2007). And I do not doubt that those determinations, even

about matters difficult or impossible to explain to a layperson, such as the difference

between guilty and innocent nervousness, are often sound. But in order to protect

2
what the Fourth Amendment calls upon us to protect, we must limit our analysis to

what can be explained in words.

3