FIFTH DIVISION
MCFADDEN, P. J.,
GOBEIL and PINSON, 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.
https://www.gaappeals.us/rules
May 25, 2022
In the Court of Appeals of Georgia
A22A0460. THE STATE v. MATHEWS.
MCFADDEN, Presiding Judge.
After stopping Ivan Mathews for a traffic violation, a police officer began a
broader criminal investigation based on his belief that he smelled marijuana when he
approached Mathews’ vehicle. That broader investigation ultimately led to a
warrantless search of the vehicle without Mathews’ consent. The trial court granted
Mathews’ motion to suppress evidence seized in the search on the ground that the
state had not shown that, at the time of the stop, the officer had been trained to detect
the odor of marijuana. But the officer testified that he did have some experience in
detecting the odor of marijuana, and that experience could also provide the reasonable
articulable suspicion needed for the broader investigation. Because the trial court
made no express findings of fact about the officer’s experience, we vacate the order
suppressing the evidence and remand the case to the trial court.
1. Facts and procedural history.
“When reviewing the grant or denial of a motion to suppress, an appellate court
must construe the evidentiary record in the light most favorable to the trial court’s
factual findings and judgment. An appellate court also generally must limit its
consideration of the disputed facts to those expressly found by the trial court.” Caffee
v. State, 303 Ga. 557 (814 SE2d 386) (2018) (citations and punctuation omitted).
“These principles apply equally whether the trial court ruled in favor of the [s]tate or
the defendant.” State v. Hinton, 309 Ga. 457, 457-458 (847 SE2d 188) (2020)
(citation and punctuation omitted).
So viewed, the evidence shows that on August 18, 2020, a police officer
stopped a vehicle driven by Mathews for failing to maintain its lane of travel. See
OCGA § 40-6-48. The officer approached the vehicle, asked Mathews for his
identification and registration, and told him why he had been stopped. Then,
prompted by his belief that he had smelled the odor of unburnt marijuana, the officer
converted the traffic stop into a drug investigation.
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Although the trial court made no express findings on what occurred after that
point, it appears to be undisputed that the officer asked another officer with a drug
dog to come to the scene, and when the drug dog arrived it alerted to the presence of
marijuana. Law enforcement officers then searched Mathews’ vehicle without his
consent, finding marijuana and handguns. Mathews was arrested and charged with
possession of marijuana with the intent to distribute, OCGA § 16-13-30 (j), and
possession of a firearm during the commission of a felony, OCGA § 16-11-106.
Mathews sought to suppress the marijuana and handguns, arguing among other
things, that the vehicle search violated his Fourth Amendment rights because the
officer had unlawfully detained him until the drug dog’s alert by prolonging the
traffic stop. The trial court agreed. The state was not authorized to convert the traffic
stop into a drug investigation, the trial court concluded, because it had not satisfied
its burden of showing reasonable articulable suspicion. It had not satisfied that burden
because the officer’s “belief that he smelled the odor of unburnt marijuana [was] not
supported by the evidence.” That belief was unsupported because there was no
convincing evidence that, before the traffic stop on August 18, 2020, the officer had
received training on detecting the odor of marijuana.
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In her order, the trial court made express factual findings about the officer’s
lack of training. To the extent the officer testified otherwise on the issue of his
training, as the state asserts, the trial court was not required to accept that testimony.
See Caffee, 303 Ga. at 559 (1). We must “assume that the trial court rejected the
credibility of the officer to the extent that the officer’s testimony is inconsistent with
the court’s decision.” State v. Mathis, 338 Ga. App. 86, 91 (1) (789 SE2d 336)
(2016).
The officer also testified at the hearing on Mathews’ motion about his
experience detecting the odor of marijuana. But in her order, the trial court made no
express factual findings on that point, stating only that Mathews had “not raised any
issue as to [the officer’s] experience.” Instead, the trial court held that the officer’s
lack of training was dispositive.
The trial court acknowledged that the officer had testified about other details
of the traffic stop that, the state argued, supported a reasonable articulable suspicion
of illegal drug activity. Without evidence that the officer smelled marijuana, the trial
court held, those other factors were not enough to provide the necessary reasonable
suspicion.
2. Analysis.
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“The [s]tate bears the burden of proving that the search of [Mathews’] car was
lawful, and to carry this burden, the [s]tate must show that it was lawful to detain
[Mathews] 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). And
[a] dog sniff of a traffic-stopped vehicle is not fairly characterized as
part of the officer’s traffic mission, because it is a measure aimed at
detecting evidence of ordinary criminal wrongdoing. Consequently,
prolonging a traffic stop in order to conduct an open-air dog sniff
renders the seizure unlawful, even if that process adds very little time to
the stop.
State v. Allen, 298 Ga. 1, 5 (2) (a) (779 SE2d 248) (2015) (citations and punctuation
omitted). An officer may convert the traffic stop to a broader criminal investigation
only if the officer had reasonable articulable suspicion of other criminal activity. See
McNeil v. State, 362 Ga. App. 85, 90 (866 SE2d 249) (2021).
The state argues that the officer did not unlawfully prolong the traffic stop
because the traffic stop was ongoing when the drug dog arrived at the scene and
alerted to Mathews’ vehicle. But the trial court expressly found that the officer began
the drug investigation as soon as he approached the vehicle and smelled what he
believed to be marijuana. The officer admitted as much at the hearing. When asked
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by the state whether his “approach to the case” changed “[o]n approach to the vehicle
and after detecting the odor of marijuana,” the officer responded, “[y]eah, it turned
into a drug investigation.” Because the trial court found that the purpose of the
investigation changed almost immediately, she made no express factual findings
about whether the officer completed the tasks associated with the traffic stop in a
reasonable period of time. See Reyes v. State, 334 Ga. App. 552, 555 (2) (780 SE2d
674) (2015) (“a police stop exceeding the time needed to handle the matter for which
the stop was made violates the Constitution’s shield against unreasonable seizures”)
(citation and punctuation omitted). So we cannot reverse on the basis that the trial
court could have construed the evidence to find that the traffic stop was ongoing
when the dog alerted to Mathews’ car. See Miller v. State, 288 Ga. 286, 289 (2) (702
SE2d 888) (2010) (an appellate court will not reverse a trial court’s ruling based on
evidence not mentioned in the trial court’s order).
The state argues that the officer had the reasonable articulable suspicion needed
to conduct a broader drug investigation because he detected the odor of marijuana
when he approached Mathews’ vehicle. As the state asserts, “an officer’s detection
of the odor of marijuana may establish reasonable suspicion” of illicit activity. In the
Interest of C. B., 353 Ga. App. 383, 385 (837 SE2d 544) (2019). But an officer’s
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testimony that he smelled marijuana will not support a reasonable suspicion unless
the state establishes “a foundation for the officer’s ability to detect the odor of
marijuana[.]” Id. at 386.
An officer’s training and experience are a part of the totality of facts and
circumstances known to the officer from which the officer may reasonably suspect
criminal activity. See Hughes v. State, 296 Ga. 744, 749 (2) & n. 8 and n. 9 (770
SE2d 636) (2015). In granting Mathews’ motion to suppress, the trial court relied on
a statement in In the Interest of C. B., 353 Ga. App. at 386, that “the lack of evidence
of the officer’s training and experience is fatal” to a claim that the officer had
reasonable articulable suspicion of illicit activity based on smelling marijuana. The
trial court construed In the Interest of C. B. to hold, essentially, that the state must
show the officer had both training and experience in detecting the odor of marijuana.
But In the Interest of C. B. does not address a situation where there is evidence
of training but not experience, or vice versa. See In the Interest of C. B., 353 Ga. App.
at 383-384 (affirming ruling in which the trial court found that “the officer had not
established that he was qualified or trained to detect the odor of marijuana”)
(emphasis supplied). Moreover, our Supreme Court has indicated that evidence of
either training or experience may be enough to show that an officer was qualified to
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detect the odor of marijuana. In Caffee v. State, 303 Ga. at 562 (2) (b), the Court held
that “[m]any appellate courts, this one included, have concluded that a police officer
has probable cause to search when that officer, through training or experience, detects
the smell of marijuana.” (Emphasis supplied.) So we decline to read In the Interest
of C. B. to require evidence of both training and experience to establish the necessary
foundation for an officer to testify that he or she detected the odor of marijuana;
depending on the circumstances, one or the other may suffice.
For this reason, we conclude that the trial court erred when she based her
suppression ruling on the state’s failure to show that the officer had been trained in
detecting the odor of marijuana, without considering the officer’s experience in
detecting that odor. The officer testified that he had such experience, but the trial
court made no express findings on that issue. Even though Mathews did not challenge
the officer’s testimony about his experience, we cannot consider that testimony in
reviewing the order on appeal. “The trial court was not required to accept [the
officer’s] testimony on these issues, even though it was not contradicted . . . [and] it
[is] not within [our] province . . . to make [our] own findings in this respect.” Caffee,
303 Ga. at 559 (1).
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Without express findings about the officer’s experience in detecting the odor
of marijuana, we lack “sufficient detail to permit meaningful appellate review” of the
trial court’s conclusion that the officer lacked reasonable articulable suspicion to
convert the traffic stop to a criminal investigation. Hughes, 296 Ga. at 746 (1) n. 6.
So we vacate the trial court’s order and remand the case for further findings. See id.
Judgment vacated and case remanded. Gobeil and Pinson, JJ., concur.
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