Berry v. State

Barnes, Judge.

Pursuant to the grant of an interlocutory appeal, Henry Lorenzo Berry appeals the superior court’s denial of his motion to suppress evidence seized from his car after a traffic stop. He contends the trial court erred by holding that the search did not violate Art. I, Sec. I, Par. XIII of the Georgia Constitution (1983) or OCGA § 17-5-1.

The entire incident was videotaped by a camera in the police car, and the video was shown to the court. The video and the officer’s testimony show that Berry was traveling alone at about 10:00 a.m. when he was stopped on 1-20 by a City of Conyers police officer for driving a car with a dealer’s drive-out license tag. The officer was a narcotics officer who apparently was on routine patrol with his drug dog and his partner. The video shows that the two police officers approached the car on both sides and looked in the car.

*875Although some comments are inaudible, the following is a transcript of the stop as shown on the videotape:

[10:05:23 a.m.]
OFFICER: Hey, how are you doing? May I see your driver’s license and insurance please? Mr. Berry, you step out here and I’ll explain why I stopped you. I don’t like standing with my back to that traffic. The reason I stopped you is that you don’t have a tag on it. How long have you had the car?
BERRY: Just rented it and went to see my son in Atlanta. OFFICER: You rented it.
BERRY: Yes sir.
OFFICER: Where you headed to?
BERRY: I’m going to [inaudible] — Did I do something wrong or something?
OFFICER: It’s because you don’t have a tag. A lot of times we get a lot of stolen vehicles this way. I mean it’s nothing for somebody to come up and take this one off, go to a car lot and put it on there and take off with it.
OFFICER: Where you coming from?
BERRY: Atlanta. See my son.
OFFICER: See your son.
OFFICER: All that rain didn’t scare you off, did it?
BERRY: No, it didn’t.
OFFICER: How long did you stay?
BERRY: Not that long, I didn’t stay long.
OFFICER: A day? Two weeks? A week?
BERRY: Not long.
OFFICER: Not long?
BERRY: Not long.
[10:06:50 a.m. — Officer calls in Berry’s driver’s license information: black male from South Carolina 001958331.]
OFFICER: You have a regular car of your own?
BERRY: Uh, yes sir.
OFFICER: What is it?
BERRY: Just a pickup.
OFFICER: You got a pickup —. It wasn’t in good shape to drive down here?
BERRY: [Nodded head.]
OFFICER: I’m going to run a quick check on your license to make sure everything is all right.
OFFICER: Wherebouts does your son live at in Atlanta?
[10:07:38 a.m.]
BERRY: Uh, uh, Decatur.
*876[10:07:43 a.m.]
OFFICER: Decatur.
OFFICER: Everything all right; he wasn’t sick now was he? BERRY: Well, I always gotta check on him.
OFFICER: How old is he?
BERRY: 22.
OFFICER: 22.
OFFICER: He going to school down there?
BERRY: No, he’s working.
OFFICER: Working. [Officer looks at paperwork.]
OFFICER: They only charged you 80 bucks to rent it? BERRY: $75, that’s with tax.
OFFICER: That’s the tax was it?
BERRY: Yes, officer.
OFFICER: That ain’t bad.
OFFICER: When did you come down?
BERRY: Early this morning.
OFFICER: Early this morning?
OFFICER: I’m just trying to kill time while we are waiting on the [inaudible].
OFFICER: Is he a good boy? Does he stay in trouble a lot or —?
BERRY: Well, that’s why I got to check on him.
OFFICER: You gotta check on him. He never been in —. BERRY: He don’t have a job right now. You got any children, got any children, you know how it is.
OFFICER: I gotta two and a half month old.
BERRY: You ain’t getting there yet.
OFFICER: I ain’t there yet.
BERRY: You ain’t there yet.
OFFICER: All right, you don’t have any guns or knives or weapons or anything? You don’t mind if I pat you down right quick for my safety? You don’t have to put your hands up. You’re fine.
[The officer pats down Berry. At 10:09:22 a.m., the officer walks to the front of the car and apparently copies down the vehicle identification number. While he is doing this, the other officer comes from the front of the car and stands by Berry. After copying the VIN, the first officer walks around the car looking in the windows. The officer calls in the VIN at 10:09:57 a.m. and resumes questioning.]
OFFICER: Mr. Henry, how often you travel back and forth?
BERRY: Not much. Whenever my son in trouble.
OFFICER: Whenever he’s in trouble.
BERRY: Yeah. I have a sister that lives in [inaudible], but *877this time I came to see my son.
OFFICER: You came to see your son.
OFFICER: Um, I-20’s a big interstate, runs right here through the City of Conyers. We got a big problem with people with guns, drugs, narcotics, dead bodies, and stuff like that. You don’t have anything illegal in your vehicle?
BERRY: No.
OFFICER: Would you mind if I take a quick search of your vehicle?
BERRY: No, not my vehicle.
OFFICER: Well, I mean it’s rented to you. So, I mean, that’s why I’m asking you.
BERRY: Not really no. I haven’t did anything, you know?
OFFICER: You saying I can or can’t?
BERRY: Well, I don’t, you know, it’s up to you, but I said no. I say no.
OFFICER: OK, you say no, OK. That’s fine. That’s your right to say no, OK?
BERRY: OK.
[10:11:10 a.m.]
OFFICER: All right, Mr. Henry, Mr. Berry, what I’m going to do is, I’m going to ask you to step back here with this officer. I have a narcotics-trained canine in my car. I’m going to walk him around your car real quick and if he doesn’t hit, we’re going to send you on your way. OK.
[10:11:20 a.m.]

After the dog alerted at several places on the car, the officer searched the car and opened a plastic bag he had seen earlier in the passenger compartment. It contained about eight pounds of marijuana. Berry was arrested and charged with violation of the Georgia Controlled Substances Act: possession of marijuana with intent to distribute.

Although the officer later testified that the rental contract appeared to have been altered, the videotape does not show that he ever questioned Berry about it. At some point, however, the officer confirmed that the contract was valid (the rental agency had made the alterations) and the car was not stolen. The officer testified that he saw no contraband in plain view, but did see a large black garbage bag behind the passenger’s seat. He did not smell marijuana.

Subsequently, Berry moved to suppress the marijuana found in the rented car, the trial court denied the motion, and Berry sought and obtained authority to bring this interlocutory appeal from that order.

*878The trial court’s order states:

Henry Lorenzo Berry was stopped while driving on Interstate 20 by a City of Conyers Police Officer, Ken Morgan. Officer Morgan operated the canine (K-9) unit. The defendant was stopped for driving a car with a dealer drive out paper tag. After the stop, Officer Morgan requested his driver’s license and insurance, including information on the car. Defendant produced his license and the rental contract. It should be noted that the rental contract on the car appeared to have been altered by the use of a photocopy machine. While the Officer was running a check on the items, he engaged the Defendant in a conversation. It did not appear to be a traditional rental contract form. The discussion between the officer and Defendant was amiable; however, the Defendant’s answers were contradictory. The entire stop was videotaped and played for the Court during the hearing on the Defendant’s Motion to Suppress. While the license and VIN number of the vehicle were being confirmed, the Officer requested to search the Defendant’s vehicle. The Defendant refused to give consent. After this refusal, the Officer used his dog to conduct a “free air search” around the vehicle. The dog alerted and a search ensued whereby contraband was found in the back floorboard of the Defendant’s rental vehicle. The officer lawfully stopped the vehicle driven by the Defendant because the vehicle did not have a state-issued tag. While the inquiry of the Defendant’s itinerary was ongoing, the Officer noticed the nervousness of the Defendant. According to the Officer, 1-20 is increasingly becoming a transportation lane for illegal drugs and narcotics. This case is distinguishable from Smith v. State, 216 Ga. App. 453 [ (454 SE2d 635)] (1995) because the Officer did not conduct the “free air search” based solely on a hunch. Furthermore, the inquiry did not relate to a drug inquiry but was simply about the Defendant’s travel plans. The questions were not unconstitutionally intrusive when balanced against the danger of drug running on the interstate. An officer must have reasonable suspicion of criminal conduct before conducting additional questioning and searching a vehicle once a normal traffic stop has ended and the officer has told motorists they are free to go. Simmons v. State, 223 Ga. App. 781, 782 [(479 SE2d 123)] (1996). The traffic stop was ongoing in this matter and the Defendant had not been given permission to leave. The investigation was appropriate which gave rise to meet the *879reasonable suspicion standard. Jorgensen v. State, 207 Ga. App. 545, 546 [(428 SE2d 440)] (1993). Therefore, the Defendant’s Motion to Suppress is hereby denied.

1. In reviewing the trial court’s decision “we must determine whether the officer’s action in pulling [Berry] over was justified at its inception, and whether the detention was reasonably related in scope to the circumstances which justified the interference in the first place.” (Citation and punctuation omitted.) Smith v. State, supra, 216 Ga. App. at 454.

2. Our Supreme Court has established three guiding principles to guide us in reviewing a trial court’s order on a motion to suppress:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citations and punctuation omitted; emphasis in original.) Tate v. State, 264 Ga. 53, 54 (440 SE2d 646) (1994). In this instance, Berry did not testify, and no other witness contradicted the testimony of the officer. Yet, conflicts in the evidence exist because the officer’s characterizations of the events are not always consistent with the events as shown on the videotape. The trial court, however, either did not note these inconsistencies or elected not to address them. To the extent the trial court’s findings of fact rely upon the officer’s testimony which is inconsistent with the objective events recorded on the videotape, we find them clearly erroneous. See Lyons v. State, 244 Ga. App. 658 (535 SE2d 841) (2000) (facts discernible in videotape not in dispute).

A significant discrepancy exists between the officer’s testimony that he had not completed his investigation of the drive-out tag when he conducted the search with his dog and his statement on the videotape that Berry would be free to go after the dog checked his car.

3. Our initial consideration is whether the traffic stop was authorized. The evidence shows, and the trial court found, that Berry was stopped because he had a drive-out tag on the car. The evidence also shows that the stop was not connected with enforcement of the vehicle registration laws. Instead, the officer testified that he stopped *880Berry to investigate whether the car was stolen merely because he did not have a state-issued tag on the car. The officer said, “a lot of times we get a lot of stolen vehicles this way. It’s nothing for somebody to come up and take this one off, go to a car lot and put it on there and take off with it.”

This is an impermissible basis for a traffic stop. If the officer’s rationale for this stop were sufficient to authorize an investigative traffic stop, a stop of any or all motor vehicles on an interstate highway would be authorized because they are often used to transport drugs. Our law is more restrictive than that. Instead, the critical issue to the validity of a traffic stop is whether the officer had “a particularized and objective basis for suspecting the particular person stopped of criminal activity. [Cit.]” (Punctuation omitted.) Postell v. State of Ga., 264 Ga. 249, 250 (443 SE2d 628) (1994). “What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.” (Citation and punctuation omitted.) State v. Fowler, 215 Ga. App. 524, 525 (451 SE2d 124) (1994).

Although an officer may conduct a brief investigative stop of a vehicle (see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979)), such a stop must be justified by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). See also United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). The U. S. Supreme Court recognized the difficulty in defining “the elusive concept of what cause is sufficient to authorize police to stop a person,” and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621) (1981). “This demand for specificity in the information upon which police action is predicated is the central teaching of (the Supreme Court’s) Fourth Amendment jurisprudence.” Terry v. Ohio, supra at 22, n. 18.

(Emphasis supplied.) Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994).

Here, the officer had no “particularized and objective basis for suspecting [Berry] of criminal activity.” Instead, the officer had a *881mere inclination or hunch that any car with a drive-out tag might be stolen. Under these circumstances, the officer was not authorized to pull over Berry. Therefore, the trial court erred by denying his motion to suppress on this basis.

To the extent that Watson v. State, 190 Ga. App. 696 (379 SE2d 817) (1989), can be read to authorize a traffic stop because of the possibility that a drive-out tag might be implicated in car theft, it is disapproved and overruled.

4. In addition, even if the initial stop had been authorized, we find that Berry’s further detention to conduct the dog search was not reasonable. Smith v. State, supra, 216 Ga. App. at 454. At the hearing, the officer testified that the reasons for the search were: Berry’s nervousness, his uncertainty about whether his son was working or not, the fact that he was driving a rental car, the rental contract, Berry’s looking down the interstate before answering some questions, Berry’s failure to remember that his son lived in Decatur, the plastic garbage bag in the backseat, and the long trip from South Carolina only to stay a few hours.

From the evidence discussed above, we are satisfied that this case is controlled by our decisions in Migliore v. State of Ga., 240 Ga. App. 783 (525 SE2d 166) (1999); State v. Blair, 239 Ga. App. 340 (521 SE2d 380) (1999); Simmons v. State, supra, 223 Ga. App. 781; and Smith v. State, supra, 216 Ga. App. 453. These cases found searches unreasonable under almost identical circumstances.

The videotape plainly shows that when the officer decided to conduct the search with his dog, he had abandoned his investigation of Berry’s drive-out tag, and he informed Berry that he could leave after the dog walked around the car. Since the dog search was in no way connected to any problem with the license tag, the officer must have had a reasonable suspicion that Berry was transporting drugs. Simmons v. State, supra, 223 Ga. App. at 782. We find that the trial court’s determination that the officer had such reasonable suspicion is also clearly erroneous.

None of the reasons the officer relied on showed that Berry might be in possession of drugs. Further, even if Berry were nervous, as if most citizens would not be when stopped by the police, “[r]easonable suspicion to detain and investigate for illicit drug activity does not arise from nervousness. . . .” Migliore v. State of Ga., 240 Ga. App. at 786.

An officer must have reasonable suspicion of criminal conduct before conducting additional questioning and searching a vehicle once a normal traffic stop has ended and the officer has told [the] motorists they are free to go. To meet the reasonable suspicion standard, an officer’s investigation during
*882a traffic stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Although this suspicion need not meet the standard of probable cause, it must be more than mere caprice or a hunch or an inclination.

(Citations and punctuation omitted.) Parker v. State, 233 Ga. App. 616, 617-618 (1) (504 SE2d 774) (1998).

In the absence of specific articulable facts supporting a reasonable suspicion of criminal conduct, we must conclude, contrary to the trial court’s holding, that the officer’s dog search of the automobile was based on merely his “hunch” that drugs might be found in the garbage bag he saw in the car. State v. Blair, supra, 239 Ga. App. at 342.

Because the trial court specifically noted that the officer’s “inquiry did not relate to a drug inquiry but was simply about [Berry’s] travel plans,” we are obliged to point out that the questions asked by the officer are part and parcel of the questioning routinely done by officers in the course of these traffic stops. Without such questioning, which is rarely if ever directed toward the reason for the initial stop, the officers would have no basis for later testifying about inconsistent or evasive responses, discrepancies in the travel plans, variations between the responses by the driver and passengers, or unwarranted nervousness. See, e.g., State v. Blair, supra, 239 Ga. App. at 340 (conflicting explanations and nervousness); State v. Hall, 235 Ga. App. 412, 415 (509 SE2d 701) (1998) (inconsistent responses); Roundtree v. State, 213 Ga. App. 793 (446 SE2d 204) (1994) (inconsistencies regarding the purpose and duration of trip and increasing nervousness). Indeed, it is the rare traffic stop drug case in which responses by the driver or passenger to an officer’s seemingly innocuous questions are not relied upon by the officer to later justify a search of the vehicle.

Because the officer illegally detained Berry so that he could conduct a search with his dog, this case is distinguished from Pitts v. State, 221 Ga. App. 309 (471 SE2d 270) (1996); State of Ga. v. Montford, 217 Ga. App. 339 (457 SE2d 229) (1995); Roundtree v. State, supra, 213 Ga. App. 793, and other cases that found free air searches to be authorized.

If during an investigatory stop the officer, without an articulable suspicion, proceeds to ask questions unrelated to the reason for the stop, the officer goes beyond the permissible scope of the investigation, and the further detention of the car driver exceeds that permitted by Terry v. Ohio and its progeny. To give deterrent effect to the exclusionary rule, *883a court must suppress evidence obtained through an excessive detention and investigation.

(Footnotes omitted.) Almond v. State, 242 Ga. App. 650, 652 (1) (530 SE2d 750) (2000).

Accordingly, the judgment of the trial court must be reversed and the case remanded to the trial court with direction to grant Berry’s motion to suppress.

Judgment reversed with direction.

Blackburn, C. J., concurs. Ruffin, Miller and Phipps, JJ., concur and concur specially. Pope, P. J., Andrews, P. J., Johnson, P. J., Smith, P. J., and Ellington, J., concur in Division 3 and concur specially. Eldridge and Mikell, JJ., dissent.