On June 29, 2021, the Court of Appeals of Georgia decided the Hill v. State[i], which is instructive regarding the law related to consent searches of automobiles. The relevant facts of Hill are as follows:
Viewed in this light, the evidence at the suppression hearing, shows that in October 2017, Corporal Colt Young, a sheriff’s deputy, was on patrol when he observed Hill driving a black 2004 Acura at an excessive speed, clocking Hill on his police radar at 87 miles per hour in a 55 mile per hour zone. Young performed a u-turn, activated his emergency lights, and pursued Hill, who pulled over shortly thereafter. Young informed dispatch that he was executing a traffic stop at 12:44 p.m., and by 12:46 p.m., Young had made contact with Hill on the side of the road.
As Hill sat in his vehicle, Young told him that he had pulled him over for speeding and requested Hill’s driver’s license. Hill complied, and Young noticed that Hill was breathing heavily, he could see Hill’s heartbeat through his shirt, and Hill would not make eye contact. Young asked Hill if he was ok, and Hill replied that “he was just worried about how much the ticket [would] cost.” Young took Hill’s license and registration back to his police cruiser and radioed the driver’s license and vehicle tag information to dispatch to check the validity and to determine if Hill had any outstanding warrants. Young did not have a computer in his cruiser at that time, so he relied on dispatch to check Hill’s license and registration information. Also at that time, Young called for any nearby officers to provide backup due to Hill’s apparent nervousness. Two minutes later, at 12:48 p.m., Sergeant Scottie Waldrip responded that he was en route to meet Young.
As Young communicated with dispatch from his cruiser, he realized that there was a discrepancy in the registration information that dispatch was giving him about the make and year of the vehicle driven by Hill. Due to static in the radio communications, dispatch eventually communicated with Young by cell phone, and by 12:57 p.m. it was determined that dispatch had entered the wrong tag number, and the discrepancy had been resolved.
As Young finished writing the citation in his cruiser, Sergeant Waldrip arrived at 12:59. Once Young was finished writing the citation a few minutes later, he approached Hill’s vehicle and asked him to exit and stand at the back of his vehicle. Hill complied, and Young patted him down to determine the presence of any weapons. Finding none, Young then explained the citation to Hill, advised him of his court date, and handed him the citation along with his license and registration. At that point, Young considered the traffic stop to be over, but he did not expressly tell Hill that he was free to leave. Immediately after handing Hill the citation and his license, Young asked Hill “if there was anything illegal inside the vehicle.” Hill replied, “no,” and then Young asked Hill if he could search Hill’s vehicle, and Hill replied, “go ahead.”
Young searched Hill’s vehicle and discovered a plastic bag containing approximately 28.3 grams of a white powder he suspected to be cocaine; at 1:07 p.m., he radioed dispatch to report that he was detaining Hill while he field tested the substance. Two minutes later, after receiving a positive result for cocaine, Young arrested Hill at 1:09 p.m.[ii]
Hill was indicted for trafficking cocaine, possession of cocaine with intent to distribute and speeding. He filed a motion to suppress which was denied. Hill then appealed the denial of his motion to suppress to the Court of Appeals of Georgia.
On appeal, Hill argued that his consent was not voluntary because it was the product of an unreasonably prolonged traffic stop.
The court of appeals then set out to determine if the officer unreasonably prolonged the traffic stop, or stated another way, exceeded the permissible scope of the traffic stop, when he asked Hill for consent to search his car. The court then examined the legal principles that are relevant to the issue in this case. The legal principles are as follows:
- A seizure for a traffic violation justifies a police investigation of that violation. … Authority for the seizure thus ends when tasks tied to the traffic infraction are — or reasonably should have been — completed. … Beyond determining whether to issue a traffic ticket, an officer’s mission includes ordinary inquiries incident to the traffic stop. Typically such inquiries involve checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. [Further,] traffic stops are especially fraught with danger to policeofficers, so an officer may need to take certain negligibly burdensome precautions in order to complete his mission safely. On-scene investigation into other crimes, however, detours from that mission. Rodriguez v. United States, 575 U. S. 348, 354-356 (II) (135 SCt 1609, 191 LE2d 492) (2015)[iii]
- [O]nce the purpose of [the traffic] stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention.” “The United States Supreme Court has held unequivocally that the Fourth Amendment does not allow even a de minimis extension of a traffic stop beyond the investigation of the circumstances giving rise to the stop.” “It is the unsupported additional detention, not police questioning, which constitutes the Fourth Amendment” State v. Felton, 297 Ga. App. 35, 37 (676 SE2d 434) (2009)[iv]
- The appropriate inquiry is whether a reasonable person would feel free to decline the officers’ request to search or otherwise terminatethe encounter. Mere acquiescence to the authority asserted by a police officer cannot substitute for free consent. Batten v. State, 341 Ga. App. 332, 334-335 (a) (801 SE2d 57) (2017)[v]
- [Factors to consider] whether a reasonable person would have felt free to leave, include[e]:
the existence and nature of any prior seizure; whether there was a clear and expressed endpoint to any such prior detention; the character of police presence and conduct in the encounter under review ([e.g.,] the number of officers, whether they were uniformed, whether police isolated subjects, physically touched them or directed their movement, the content or manner of interrogatories or statements, [etc.]); geographic, temporal and environmental elements associated with the encounter; and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search. State v. McMichael, 276 Ga. App. 735, 737-738 (1) (624 SE2d 212)(2005)[vi]
- The Supreme Court of Georgia has, at least in dicta, recognized the nuance here: “a marginally burdensome inquiry that promotes the officer’s safe completionof the traffic-stop mission, and is not done merely to facilitate a detour into some non-mission related task, is a permissible part of the traffic stop. State v. Allen, 298 Ga. 1, 8 (2) (c) (779 SE2d 248) (2015).[vii]
- If an officer continues to detain an individual after the conclusion of the traffic stop and interrogates him or seeks consent to search without reasonablesuspicion of criminal activity, the officer has exceeded the scope of a permissible investigation of the initial traffic stop.” Heard v. State, 325 Ga. App. 135, 138 (1) (751 SE2d 918) (2013)[viii]
The court of appeals then applied the facts of Hill’s case to the legal principles above. During the stop, a back-up officer arrived. When the primary officer finished his routine checks and preparation of the citation, he asked Hill to exit his vehicle. He then conducted a pat down of Hill for weapons. The officer later testified in court that the reason he had Hill exit his vehicle and patted him down was because he was “trying to determine if something else was going on other than speeding.”[ix] The officer returned Hill’s license, issued him the citation and then immediately asked him if “there was anything illegal inside the vehicle.”[x] When Hill responded that there was not, the officer asked if he could search the vehicle, to which Hill replied, “Go ahead.”
The court of appeals then held
Based on the totality of the circumstances — including the arrival of backup, the timing of being asked to exit the vehicle, the pat-down, and not being told that he was free to leave despite the conclusion of the traffic stop — a reasonable person would not have understood that he was free to leave at the time that Young inquired about illegal items in the vehicle and requested consent to search Hill’s vehicle. Although
an officer is not required to advise the driver that he is “free to go” before a consent to search will be recognized as voluntary … , [t]he moment at which a traffic stop concludes is often a difficult legal question, not readily discernible by a layperson. It is understandable that a driver would believe that he is validly in a police officer’s custody as long as the officer continues to interrogate him.
Further, that Young’s inquiry and request to search immediately followed the return of Hill’s license does not require a different result because it is the unsupported additional detention to investigate other crimes and “to request consent to search [that] violated his Fourth Amendment rights.[xi]
Thus, the court of appeals held that the after the officer returned Hill’s license and issued him the citation, the purpose of the stop ended. However, because the officer continued speaking with the Hill and immediately asked about illegal items and requested consent to search, a reasonable person would not have known he was free to go and the stop was concluded. The court further noted that the nature of the questions does not violate the constitution, but rather the continued detention in order to ask the questions violates the Fourth Amendment.
Therefore, the court of appeals reversed the decision of the trial court.
- Officers should be mindful that if they have reasonable suspicion of other criminal activity, they are allowed to ask questions unrelated to the traffic stop because that additional reasonable suspicion expands the scope of the stop.
- If officers want to request consent to search at the conclusion of a traffic stop, they should make a clear transition to the “consensual encounter.” Let the driver know the stop is over. Any additional questions must be with “free and voluntary” consent and not the product of a “continued detention.”
[i] A21A0264 (Ga. App. Decided June 29, 2021)
[ii] Id. at 1-3
[iii] Id. at 5-6
[iv] Id. at 6
[v] Id. t 6-7
[vi] Id. at 7
[vii] Id. at 8-9
[viii] Id. at 10-11
[ix] Id. at 8
[x] Id. at 9
[xi] Id. at 9-10 (internal citations omitted)(emphasis added)