On March 17, 2021, the Court of Appeals of Georgia decided Terry v. State[i], in which the court examined whether officers exceeded the scope of a traffic stop by having a K9 conduct a free air sniff of the vehicle. The facts of Terry, taken directly from the case, are as follows:
[O]n July 29, 2014, Sergeant Peter Lukas with the Georgia State Patrol was working his “normal duty” with two other officers. During his shift, Lukas initiated a traffic stop of a car because he could not see into the vehicle, which suggested the window tint was too dark and in violation of Georgia law. Lukas also noticed that the car’s license plate tag was obstructed, which is also illegal in Georgia.
When Lukas approached the car, he observed Terry in the driver’s seat and Kabrianna Smith in the front passenger’s seat. Lukas asked for Terry’s driver’s license, but Terry provided him with a Florida identification card instead. Terry then advised Lukas that Smith owned the vehicle, but when Lukas checked the vehicle registration, he learned that the primary owner of the vehicle was Teresa Rodriguez and that Smith was only a secondary owner.
After confirming there was valid insurance for the vehicle, Lukas also discovered that Terry’s driver’s license was invalid and had been suspended a total of ten times. As a result, Lukas arrested Terry for driving with a suspended license. Lukas then returned to his patrol car to see if Smith had a valid license so he could release the car to her, and he confirmed that she did. Even so, Lukas asked Smith permission to search the car, but she refused. Despite this refusal, a K-9 officer used his dog to conduct a “free-air sniff of the vehicle.” And while circling the vehicle, the dog indicated that “there was an odor of some type of marijuana or narcotic.” The officers then conducted a full search of the car, during which they found a package containing a “grayish whitish gravel” substance; a “heat sealed bag of [a] green leafy substance”; and $11,420 in cash. Smith also removed a sandwich bag from her pocket containing a “green leafy substance,” which—based on Lukas’s training and experience—appeared to be marijuana. At this point, Lukas arrested Smith and placed her in the back of another officer’s patrol car. Upon further investigation, the crime lab confirmed, inter alia, that the leafy substance in the heat-sealed bag was marijuana and the gravel-type substance was “molly.”
Subsequently, Terry was charged, via indictment, with violating the GCSA; possession of marijuana, more than one ounce; driving with a revoked license, and improper display of a license plate.[ii]
Terry was subsequently indicted under state law for violations of the Georgia Controlled Substance Act, driving with a revoked license, and improper display of his license plate. He filed a motion to suppress the evidence and the trial court denied the motion. He was convicted by a jury and subsequently appealed the denial of his motion to suppress.
On appeal, Terry argued that the trial court erred in denying his motion to suppress because the K9 sniff occurred after the conclusion of the traffic stop, without reasonable suspicion of further criminal activity.
The court of appeals first noted the legal principles that control this case. The court stated
[A] seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.[iii]
In other words, once the mission of a traffic stop is complete, an officer violates the Fourth Amendment if he prolongs the stop and continues to detain persons that were stopped. Of course, if the officer has reasonable suspicion of additional or ongoing criminal activity, prolonging the stop would be permissible under the Fourth Amendment.
Terry did not dispute the validity of the original traffic stop but rather argued that the stop was impermissibly prolonged by the K9 sniff after the mission of the stop was completed.
The court of appeals stated
[T]he “tolerable duration of police inquiries in the traffic-stop context” is determined by “the seizure’s ‘mission’—to address the traffic violation that warranted the stop, and attend to related safety concerns.” But after the tasks related to the investigation of the traffic violation and processing of the citation have been accomplished, an officer “cannot continue to detain an individual without reasonable articulable suspicion.” And significantly, reasonable, articulable suspicion requires a “particularized and objective basis for suspecting that a citizen is involved in criminal activity.”
Importantly, 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.” As a result, 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 stop.”[iv]
The court also noted that a K9 sniff that takes place during a traffic stop is permissible under the Fourth Amendment, as long as it “does not lengthen the stop at all.”[v] This means it would be permissible to have a K9 conduct a free air sniff during a traffic stop while the primary officer was diligently pursuing the mission of the stop, such as writing citations, waiting on driver’s license checks and registration checks and other tasks related to the reason for the stop.
In light of the above legal principles, the court stated that the controlling question in Terry’s case was whether “the free-air dog sniff that resulted in probable cause to … search inside [the] car was done while some other task related to the mission of the traffic stop was still being conducted so that the sniff did not add any time to the stop.”[vi]
The court then examined the facts relevant to the issue regarding the motion to suppress. The court noted that Terry was arrested for driving with a suspended driver’s license. The trooper checked the vehicle registration and learned that Smith, the passenger in the vehicle, was the primary registered owner of the vehicle. The officer checked her driver’s license and learned it was valid. He returned it to her along with the registration paperwork. He then asked for consent to search her vehicle, and she refused to consent. The trooper then had a K9 who was already on-scene conduct a free air sniff of the exterior of the vehicle and the K9 alerted for the presence of illegal drugs. Although he later testified that he did not remember if he told Smith she was free to go, he did state that he believed that there were no legal grounds to further detain her after he returned her license and vehicle documents.
Examining the facts above, once the officer completed his arrest of Terry, verified that the car was properly registered and insured, determined that Smith was a registered owner of the car and had a valid driver’s license, the mission of the traffic stop was complete. Any prolonged detention, such as for the K9 sniff, was unreasonable under the Fourth Amendment. As such, the court of appeals held that the trial erred by denying the motion to suppress.
[i] A20A1627 (Ga. App. Decided January 28, 2021)
[ii] Id. at 1-3
[iii] Id. at 8 (citing State v. Allen, 298 Ga. 1, 4 (2) (a) (779 SE2d 248) (2015) (punctuation omitted) (quoting Illinois v. Caballes, 543 U. S. 405, 407 (125 SCt 834, 160 LE2d 842) (2005)); accord State v. Herman, 344 Ga. App. 359, 361 (810 SE2d 183) (2018).
[iv] Id. at 8-9 (internal citations omitted)(emphasis added)
[v] Id. at 9
[vi] Id. at 9-10