On November 17, 2021, the Court of Appeals of Georgia decided McNeil v. State[i], which serves as an excellent review of the law related to when an officer may exceed the permissible scope of a traffic stop. The facts of McNeil, taken directly from the case, are as follows:
On March 20, 2019, at 10:41 p.m., a sergeant with the Grantville Police Department was on patrol on I-85 when he saw a sedan with a Florida tag following too closely behind another vehicle. The sergeant initiated a traffic stop, and the sedan pulled over on an exit ramp. After exiting his patrol car, the sergeant approached the sedan and saw that there were two occupants — a female driver and a male front seat passenger, McNeil.
While standing at the driver’s side window, the sergeant asked the driver for her license and inquired whether the vehicle belonged to her, and she handed her Florida license to the sergeant and informed him that the sedan was a rental in her name. The sergeant explained to the driver the reason for the traffic stop and asked to see the rental agreement, which the driver handed to the sergeant after she and McNeil rummaged through the sedan. The sergeant asked if there were any weapons inside the sedan, and the driver and McNeil said that there were not. At the sergeant’s request, McNeil also handed his Florida license to the sergeant. According to the sergeant, McNeil seemed very nervous.
Approximately four minutes into the traffic stop, the sergeant informed the driver that he planned to issue her a written warning for the traffic violation and asked her to walk with him to his patrol car, and she complied. While walking to the patrol car, the sergeant asked the driver if there was a reason she was driving so closely to the other vehicle, and she explained that she owned an organic soy candle-making company and was tired because she and her boyfriend, McNeil, had driven from Pensacola, Florida, to deliver some candles. The sergeant testified that he found her story suspicious because, in his experience with drug interdiction, he had become aware of people concealing drugs inside candles and then melting off the wax.
While the driver remained beside the patrol car, the sergeant ran her and McNeil’s licenses through a crime record database and determined that there were no outstanding warrants or license issues. Approximately six minutes had elapsed since the beginning of the traffic stop.
After checking the licenses, the sergeant exited his patrol car and told the driver to pay more attention while driving. The sergeant, who continued to hold the licenses and rental agreement, then asked the driver how long she and McNeil had been gone that day. The driver replied that they had left Pensacola that morning and had been in Atlanta around 5:00 pm. According to the sergeant, he spoke with the driver after running the licenses to make sure she was not impaired, and he observed no signs of impairment and decided not to conduct any field sobriety tests.
While speaking with the driver, the sergeant saw McNeil rummaging around inside the sedan. After the driver answered questions about her travel itinerary, the sergeant told her to stay by his patrol car while he went to speak with McNeil. Approximately seven minutes into the traffic stop, the sergeant then walked over to the passenger side of the sedan while continuing to hold the licenses and rental agreement. During his subsequent questioning of McNeil, the sergeant unfolded the rental agreement and reviewed it, but he did not ask McNeil any specific questions about the agreement.
The sergeant confirmed with McNeil the information on his Florida license, which listed a Pensacola home address. The sergeant also asked McNeil where he and the driver were coming from, and McNeil said Atlanta. McNeil also said that he was riding with his girlfriend who had a candle business and was selling candles, and that they had left home that afternoon. The sergeant inquired if there were any weapons or anything illegal in the sedan, and McNeil said no. The sergeant then asked McNeil if he had ever been in trouble, and McNeil answered in the affirmative and said that his last offense was for being a “habitual driver” in Florida, but that he had not been in prison or in trouble for ten years.
Following his questioning of McNeil, the sergeant walked back over to the driver. At that point, it was approximately eight minutes into the traffic stop, and another officer had arrived on the scene. The sergeant did not start writing out a warning to the driver or return the licenses and rental agreement. Instead, the sergeant asked the driver if he could see the candle wax. The driver agreed, opened the car trunk, and showed the sergeant a black plastic bag full of wax. The driver also answered additional questions about her candle business and travel itinerary in response to further questioning by the sergeant. The sergeant asked the driver if there was anything illegal inside the car, and she said no and offered to show him the website for her business. The sergeant then asked for consent to search the sedan, which the driver gave.
Before conducting the search of the sedan, approximately ten minutes into the traffic stop, the sergeant returned to the passenger side of the car and asked McNeil to step out and turn around. McNeil, who still appeared nervous to the sergeant, got out of the car but started to reach down. The sergeant told McNeil not to reach down and then patted him down for weapons. The sergeant later testified that he feared McNeil might have a weapon because of his criminal history, his nervousness, his rummaging through the car, and his reaching down to his pants. The sergeant also testified that he was concerned that a weapon might be present because of his suspicion that the candle business was a cover for drug trafficking.
During the pat-down, the sergeant felt a large bulge at McNeil’s lower back. The sergeant handcuffed McNeil, who claimed that the bulge was a bag of marijuana. The sergeant retrieved the bag, which contained heroin. Cocaine was later discovered in McNeil’s shoe.[ii]
McNeil was indicted for trafficking heroin and cocaine. He filed a motion to suppress and argued the officer unreasonably prolonged the traffic stop and conducted a frisk without a reasonable belief that he was armed and dangerous. The trial court denied the motion and McNeil filed an appeal with the Court of Appeals of Georgia.
The issue on appeal was whether the officer unreasonably prolonged the stop by questioning on matters outside of the scope of the stop.
The court of appeals began by noting several guiding legal principles relevant to the issue at hand. The court noted the following legal principles:
- The 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.” (Footnote omitted.) Id., quoting Rodriguez, 575 U. S. at 354 (II).
- It is well-established that “officers may, without unreasonably prolonging a stop, ask the driver to step out of the vehicle; verify the driver’s license, insurance, and registration; complete any paperwork connected with the citation or written warning; and determine if there are any outstanding warrants for the driver or the passengers.” Flores, 347 Ga. App. at 177 (2).
- With regard to rental cars, examination of the rental agreements and any ensuing investigation are considered part of the traffic stop.” Williams v. State, 329 Ga. App. 650, 653 (766 SE2d 82) (2014).
- While carrying out these tasks, an officer may ask the driver questions wholly unrelated to the traffic stop or otherwise engage in ‘small talk’ with the driver, so long as the questioning does not prolong the stopbeyond the time reasonably required to complete the purpose of the traffic stop.” (Citation and punctuation omitted.) Sommese v. State, 299 Ga. App. 664, 669 (1) (b) (683 SE2d 642) (2009). See Flores, 347 Ga. App. at 177 (2).[iii]
The court then applied the facts of McNeil’s case to the legal principles above. The court determined that it was permissible, and did not prolong the stop when the officer asked the driver to step out of the sedan, verified McNeil’s and the driver’s licenses, checked if the driver and McNeil had warrants, and reviewed the rental agreement. Additionally, it did not unreasonably prolong the traffic stop when the officer asked the driver and McNeil questions unrelated to the traffic violation while simultaneously carrying out the tasks listed.
However, when those tasks were complete, all that remained was for the officer to issue a written warning for the traffic violation. But, eight minutes into the traffic stop, rather than issue the warning citation, the officer then extensively questioned the driver about her candle business. The court held that this unreasonably prolonged the stop, citing a significant amount of precedent on this topic. The court stated
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.” State v. Drake, 355 Ga. App. 791, 793 (1) (845 SE2d 765) (2020) (per curiam), citing Rodriguez, 575 U. S. at 356-357 (II). And as the Supreme Court of Georgia has explained, “activities unrelated to the mission of the [traffic] stop must not extend the time of the stop at all, and such a prolongation of the stop is not permissible even if those activities are done in the middle of the stop.” Allen, 298 Ga. at 11 (2) (c). Thus, if an officer “clearly divert[s]” from conducting his traffic investigation to carry out a task unrelated to the mission of the stop, the traffic stop is unreasonably prolonged. Id. See Bodiford v. State, 328 Ga. App. 258, 263-264 (1) (761 SE2d 818) (2014) (officer unreasonably prolonged traffic stop, where officer diverted from communicating with dispatcher about results of license check to have his drug dog perform a free-air sniff around the defendant’s car); Nunnally v. State, 310 Ga. App. 183, 186-187 (1) (713 SE2d 408) (2011) (officer unreasonably prolonged traffic stop, where officer “temporarily abandoned” investigation of traffic violation by contacting K-9 unit and having drug dog sniff the exterior of the car in lieu of starting to write a citation or warning for the traffic offense or communicating with dispatch about the driver’s license information); State v. Blair, 239 Ga. App. 340, 342 (521 SE2d 380) (1999) (traffic stop unreasonably prolonged, where “officer abandoned [the] investigation [into the car’s registration and licensing] and detained the occupants of the car in order to conduct a search for drugs”).[iv]
The court stated that when the officer deviated from writing the warning citation and began to further question the driver about her candle business, he was conducting business unrelated to the scope of the stop. This unreasonably prolonged the stop.
The court also noted that, in certain circumstances, an officer is allowed to expand the scope of the stop. This occurs when the officer has reasonable suspicion of other criminal activity. The court stated
Once “an officer prolongs the traffic stop beyond the time reasonably required to fulfill the initial purpose of the stop, … the continued detention of the vehicle and its occupants amounts to a second detention,” and, for the continued detention to pass constitutional muster, “the officer must have a reasonable articulable suspicion of other illegal activity.” Rogers v. State, 323 Ga. App. 647, 650 (747 SE2d 213) (2013). Reasonable articulable suspicion must be based on more than a subjective, general suspicion or hunch. The detention must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the detention, and the [officer] must have some basis from which the court can determine that the detention was neither arbitrary nor harassing. (Citation, punctuation, and footnote omitted.) Faulkner v. State, 256 Ga. App. 129, 130 (567 SE2d 754) (2002).[v]
In this case, the officer stated that he had training and experience that drug traffickers sometimes hide drugs in candles. Additionally, he noted that the driver and McNeil had inconsistent answers to his questions and were nervous. The court of appeals first stated that
Even when other factors are present, nervous behavior of a person who has been stopped by an armed law enforcement officer is not an unusual response and is not necessarily strong evidence to support … reasonable suspicion.” Barraco v. State, 244 Ga. App. 849, 852 (2) (b) (537 SE2d 114) (2000)[vi]
Thus, the court gave little weight to McNeil’s nervousness.
Regarding the candles, the court stated, while the officer testified that drug traffickers conceal drugs in candles, he did not testify to this being a common occurrence. As such, this was not given significant weight toward the finding of reasonable suspicion.
Lastly, the court noted that the inconsistency in the statement of the driver and McNeil were minor and not significant.
Thus, the court of appeals held that the officer did not have sufficient reasonable suspicion to expand the scope and prolong the stop.
Therefore, the court appeals reversed the denial of the motion to suppress.
[i] A21A1600 (Ga. App. Decided November 19, 2021)
[ii] Id. at 2-7
[iii] Id. at 9-10
[iv] Id. at 10-12 (emphasis added)
[v] Id. at 13 (emphasis added)
[vi] Id. at 14 (emphasis added)