State v. Flores

Andrews, Presiding Judge.

Jorge Flores and Jose Renteria were jointly indicted along with others for the offenses of possessing methamphetamine, possessing methamphetamine with intent to distribute, and possessing tools used in violating the Georgia Controlled Substances Act. Flores and Renteria filed separate motions to suppress evidence of methamphetamine found when DeKalb County narcotics officers stopped and searched the vehicle Renteria was driving. Finding the initial stop was unreasonable, the trial court granted both motions, and the State appeals.

We find that the facts collected by the officers during the ongoing investigation they were conducting at the time of the stop gave them a sufficient factual basis to stop Renteria in the vehicle he was driving to investigate the reasonable suspicion that Renteria was in possession of methamphetamine. The trial court erred by finding that the stop was unreasonable and erred by granting the separate motions filed by Renteria and Flores seeking suppression of the methamphetamine found in the search of the vehicle. Accordingly, we reverse.

On July 13, 2001, Renteria and Flores driving separate vehicles had just departed from apartment H-17 of the North Highland Apartments in DeKalb County. At that point, DeKalb narcotics officers had been conducting surveillance on the apartment for about three months. With Flores following Renteria, both vehicles were stopped by narcotics officers about a half-mile from the apartment. *390The stops were made solely on the basis of the officers’ belief that the facts they had gathered in the investigation were sufficient to justify the stop to investigate their suspicion that Renteria and Flores were transporting methamphetamine from the apartment. Renteria concedes that, during the investigatory stop, a police drug dog alerted to the scent of contraband when taken around the exterior and interior of his vehicle, revealing the presence of methamphetamine in the vehicle. The drug dog also sniffed the vehicle driven by Flores, but no drugs were found in that vehicle.

Renteria and Flores filed separate motions to suppress the methamphetamine found in Renteria’s vehicle. Renteria’s motion alleged that the officers illegally stopped him without a sufficient basis to suspect he was engaged in criminal activity and that the subsequent search of the vehicle was without probable cause. Flores’s motion also alleged that the vehicle driven by Renteria was illegally stopped and searched. After a hearing on the motions, the trial court found that both defendants had standing to seek suppression of the methamphetamine. Without making any findings of fact in its written order or on the record at the suppression hearing, the trial court ruled: “The stops of Flores and Renteria on July 13, 2001 were without articulable suspicion that either defendant was engaged in criminal activity; the stops were not constitutionally reasonable.” Since the stop provided the means for gathering the drug dog evidence that was used to justify the search, the trial court granted the motions filed by Renteria and Flores to suppress the methamphetamine found in the subsequent search of Renteria’s vehicle.1

The issue presented is whether the trial court erred by finding that the stop of Renteria’s vehicle was illegal because the officers lacked a sufficient basis to reasonably suspect criminal activity. The officers were authorized under the Fourth Amendment to conduct an investigatory stop of Renteria’s vehicle if based on the “totality of the circumstances” they had “specific and articulable facts which, taken together with rational inferences from those facts,” gave them “a particularized and objective basis for suspecting [Renteria] of criminal activity.” (Punctuation omitted.) Vansant v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994), citing to and quoting from Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); United States v. Cortez, 449 U. S. 411 (101 SC 690, 66 LE2d 621) (1981); and Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979). A review of the sup*391pression hearing shows that there was ample, undisputed evidence to support the stop under this standard. Moreover, since the trial court made no findings as to the facts or the credibility of witnesses, and the basic facts at issue are not in dispute, the trial court’s application of the applicable standard to the undisputed facts is subject to de novo review. Vansant, 264 Ga. at 320.

The State produced evidence that, as part of an ongoing investigation, DeKalb County narcotics officers began surveillance on the apartment at issue in April 2001. During the course of the surveillance, they became familiar with various persons who frequented the apartment and the vehicles they drove. On April 25, 2001, a Ford F-150 truck driven by Perez was seen arriving at the apartment. Perez entered the apartment and came out with Pineda. While talking to Perez outside the apartment, Pineda was observed opening the hood of a Toyota truck and placing a package under the hood. Perez then backed out of his parking space and waited until Pineda in the Toyota truck pulled up behind him. They then drove from the apartment, one following the other, with surveillance officers following both vehicles. After the vehicles reached Interstate 85, an officer in a marked vehicle observed the Toyota making an improper lane change and stopped Pineda for the traffic violation. A drug dog brought to the scene of the stop detected the scent of contraband at the hood of the vehicle, and a search under the hood produced methamphetamine hidden in the air filter compartment of the vehicle. During the traffic stop, officers saw Perez in the F-150 truck circle back and drive by the stop scene to watch the stop.

While conducting surveillance of the apartment on May 31, 2001, officers saw Perez and Coria arriving at the apartment, Perez driving a gold Honda Accord and Coria driving a Z-71 truck. Perez and Coria were later seen leaving the apartment in the Z-71 truck driven by Coria. The two were observed driving to a nearby shopping center where Coria exited and got into a small blue car. While Coria was driving the blue car, police officers observed a traffic offense, stopped Coria, and obtained his consent to search the car. During the search, officers found $9,000 on Coria’s person, which was seized by federal DEA agents, who were assisting in the narcotics investigation.

On June 20, 2001, the gold Honda driven by Renteria was seen arriving at the apartment and being parked next to the Z-71 truck. Officers observed Renteria take three large detergent boxes from the bed of the truck and put them in the Honda. After Renteria drove the Honda from the apartment, officers who continued surveillance on the vehicle observed a traffic violation and stopped the Honda. During the stop, a drug dog alerted to the scent of contraband on the exterior of the vehicle, and in a search of the interior officers found a *392false compartment where the passenger side air bag should have been located. However, no drugs were found in the vehicle. The State produced evidence that a trained drug dog will alert to the scent of trace residue where contraband has been, even where no contraband is found.

On July 13, 2001, officers conducting continuing surveillance on the apartment saw Flores arrive at the apartment driving the same gold Honda Accord. After Flores entered the apartment, Renteria, Perez and Flores came out and were seen taking boxes from a Ford Crown Victoria and moving them into the apartment. Officers observed that the license tag on the Crown Victoria had previously been seen on the Honda. A short time after Renteria, Flores and Perez were seen entering the apartment with the boxes, Hernandez and Rojas appeared at the apartment in the F-150 truck, and Rojas was seen carrying a laundry basket up to the apartment. Thereafter, Cruz, Cardenas and a second Perez arrived at the apartment in a van. Renteria came out and engaged in conversation with the driver of the van, after which the van passengers were seen carrying two bags into the apartment. After this activity, Hernandez and Rojas were seen coming out of the apartment carrying the laundry basket which appeared heavier than when it arrived. Hernandez put the laundry basket in the back seat of the F-150 truck.

At this point, Hernandez and Rojas drove off from the apartment in the F-150 truck, but were stopped a few miles from the apartment by surveillance officers who saw Hernandez speeding and almost striking another vehicle in a reckless lane change. The drug dog officer arrived within a minute of the traffic stop, and the dog alerted to the scent of contraband on the exterior of the truck. In the subsequent search of the interior of the truck, the drug dog alerted on the laundry basket which Hernandez brought out of the apartment. After over two pounds of methamphetamine were found in the basket, Hernandez and Rojas were arrested at the scene.2

About three hours after the methamphetamine was found in the search of the truck, officers saw Renteria come out of the apartment carrying a black bag, which he put in the back seat of the Z-71 truck. A few seconds later, Flores came out of the apartment, spoke briefly to Renteria, then got into the Honda. Renteria then pulled out from his parking space in the Z-71 truck and waited until Flores pulled up behind him in the Honda. Both cars drove away from the apartment, Flores following Renteria, until both were stopped by surveillance *393officers about a half-mile from the apartment. It is undisputed that the officers did not stop the cars based on traffic violations. Rather, considering all the facts which had been gathered at that point in the investigation, the officers acted on the belief that they had a sufficient basis to conduct a stop to investigate their suspicion that Renteria and Flores were moving methamphetamine from the apartment.

To summarize, when the officers stopped Renteria on July 13 on the suspicion that he was transporting methamphetamine from the apartment, they had previously found methamphetamine in the vehicle driven from the apartment by Pineda on April 25; had previously found methamphetamine in the truck driven from the apartment by Hernandez on July 13 (just three hours prior to the stop), and had previously found and seized $9,000 on the person of an individual who had just left the apartment on May 31. In the July 13 Hernandez stop, the methamphetamine was found in a laundry basket which officers saw taken into the apartment, then carried out of the apartment and loaded into the truck. Renteria and Flores were at the apartment on July 13 when Hernandez and Rojas carried out the laundry basket containing methamphetamine. Renteria and Flores were also seen on July 13 moving boxes into the apartment from a Crown Victoria, which displayed a license tag which had been removed from the Honda Accord. A drug dog had previously alerted to the scent of contraband on the Honda, which also had a false compartment suitable for concealing contraband. Renteria was driving the Honda on June 20 when the drug dog alerted on it and the false compartment was discovered. Finally, the manner in which Renteria pulled away from the apartment on July 13 in the Z-71 truck while waiting for Flores to pull up behind and follow him in the Honda suggested the same modus operandi that the officers observed when Pineda and Perez left the apartment in separate vehicles on April 25 when methamphetamine was found in Pineda’s vehicle.

The record shows specific and articulable facts which, together with rational inferences the experienced narcotics officers were entitled to draw from the facts, gave the officers a particularized and objective basis for suspecting that Renteria was transporting methamphetamine when he was stopped. To conclude otherwise, as the dissent does, places an unrealistically high burden on police before allowing them to conduct reasonable investigative stops. Accordingly, we conclude the stop of Renteria to investigate the suspicion of criminal activity was reasonable under the Fourth Amendment. Vansant, 264 Ga. at 320.

The search of Renteria’s truck which followed the stop and produced the methamphetamine was reasonable because it was based on probable cause. Having a sufficient basis for the investigatory *394stop, the officers were justified in using a drug dog within the scope of the stop to sniff around the exterior of the truck for the scent of contraband. Cole v. State, 254 Ga. App. 424, 425-426 (562 SE2d 720) (2002). A trained drug dog sniffing the exterior of a stopped vehicle is not a search within the meaning of the Fourth Amendment. Id. When the drug dog detected the scent of contraband, this provided the officers with probable cause to conduct the warrantless search of the truck which produced the methamphetamine. State of Ga. v. Montford, 217 Ga. App. 339, 341 (457 SE2d 229) (1995); McKinney v. State, 184 Ga. App. 607, 609-610 (362 SE2d 65) (1987). It follows that the trial court erred by granting the motions of Renteria and Flores to suppress the methamphetamine found in the search.

Judgment reversed.

Johnson, P. J, Eldridge, Mikell and Adams, JJ, concur. Blackburn, P. J., and Barnes, J., dissent.

Although there is no basis in the record for the trial court’s conclusion that Flores carried his burden to show standing to challenge the stop or search of the vehicle driven by Renteria, the State did not enumerate this finding as error, so the issue is not presented on appeal. Hyde v. State, 275 Ga. 693, 694-695 (572 SE2d 562) (2002); Atwater v. State, 233 Ga. App. 339, 340 (503 SE2d 919) (1998).

In a related ruling at the suppression hearing on Hernandez’s motion to suppress the methamphetamine found in the search, the trial court denied the motion finding that the stop was valid and that the search was properly conducted with probable cause after the drug dog alerted on the exterior of the truck.