GA Court of Appeals Finds Illegal Search in Cocaine Trafficking Case

The defendant’s vehicle was stopped for traveling 10 miles-per-hour over the speed limit. The officer testified that when he asked the defendant for his driver’s license, the defendant appeared visibly nervous, was sweating and breathing heavily, and his right hand was shaking.

The officer asked the defendant to step out of the car while the officer wrote him a courtesy warning. The officer then spent approximately two and a half minutes writing the warning citation. After the defendant signed the warning citation, the officer questioned him about the status of his driver’s license and said that he would have to run a check of the license. He used his shoulder radio to relay the license number to dispatch, and then continued to speak with the defendant.

The officer asked the defendant if he had any contraband in the car, and the defendant responded that he did not. The officer asked for permission to search the car. The defendant asked the officer if he was required to consent to a search, and the officer said that he had a constitutional right to refuse the search, but if the defendant refused consent, the officer said he would “get my dog out of the [patrol] car, run my dog around [your] car and see if she shows any positive odor response on the vehicle.”

The defendant refused to consent to the search. The officer patted him down and asked him to stand away from the car. Approximately nine minutes into the traffic stop, the officer returned to his patrol car for his dog. At this point, a video of the stop shows that dispatch attempted to contact the officer, but he did not respond. He testified that he was putting a leash on the dog and did not have a free hand to use the radio. The officer admitted that at the time dispatch attempted to contact him he did not yet have the dog out of the patrol car.

Dispatch again attempted to contact the officer. Seven seconds later, the officer contacted dispatch and told her that he was “in a bad spot here” meaning that radio reception was poor. He testified that dispatch would know not to attempt to contact him, and that she should wait until he was in his patrol car and could contact her. The officer then walked the dog around the car. The dog indicated that there were drugs in the car, and the officer searched the vehicle. The officer found a large quantity of cocaine under the passenger seat and arrested the defendant.

The defendant was indicted for the offense of trafficking in cocaine. He moved to suppress the cocaine on the grounds that it was found during an illegal detention and search. The trial court denied the motion and the defendant appealed.

The Court of Appeals held that the officer unreasonably prolonged the stop by refusing to have contact with dispatch despite his knowledge that he was waiting for the results of the license check. Dispatch contacted the officer approximately two minutes after he requested the license check. The officer admitted that he knew that if the defendant’s license was confirmed to be valid, he would have been required to conclude the traffic stop—and the defendant would be free to go. By not answering dispatch and then telling her not to contact him further, the officer ensured that the stop would be prolonged until he could take the drug dog around the car. The Court stated that, even assuming the officer was having some trouble communicating with dispatch (which the record did not indicate), the officer still had the responsibility to respond to dispatch before prolonging the detention any further.

Therefore, the Court of Appeals held that the search of the defendant’s vehicle was unlawful and it reversed the trial court’s denial of his motion to suppress.