On July 24, 2023, the Court of Appeals of Georgia decided Rush v. State[i], which serves as excellent review of the law related canine sniffs and the permissible scope of a traffic stop. The relevant facts of Rush are as follows:
At approximately 1:30 p.m., Corporal Morgan caught up with Rush’s vehicle and observed that it was being driven in the rain without illuminated headlights. Morgan activated his blue lights to initiate a traffic stop. Rush’s vehicle did not stop right away, and Morgan had to turn on his siren before the vehicle finally pulled over. Morgan observed the driver moving around near the center console before the vehicle came to a stop, and the driver continued to move around in the vehicle even after coming to a stop. Morgan described that such movements are potential signs of a safety risk as the driver might be trying to access or hide a weapon or other contraband. Investigator Sutton had informed Morgan about the vehicle’s possible involvement in narcotics and, based on his training and experience, Morgan was aware that persons in the drug trade often carry firearms.
After making contact with Rush, who was alone in the vehicle, Corporal Morgan informed Rush that the reason for the traffic stop was due to a broken headlight. Morgan directed Rush to put his hands on the steering wheel as a safety precaution due to Rush’s movement in the vehicle prior to coming to a stop. Morgan then asked Rush to exit the vehicle and conducted a pat down search to ensure that Rush did not have any weapons on his person. Morgan felt a bulge in Rush’s front pants pocket, which Rush claimed was money. Upon manipulating the bulge, Morgan believed it to be methamphetamine shards because “nothing else looks or feels like methamphetamine.”
Sergeant Jacob Smith of the Lumpkin County Sheriff’s Office arrived on the scene to assist with the stop. Morgan asked Smith to run a check on Rush’s license. While awaiting the results from dispatch, Smith initiated contact with Rush and became concerned that Rush might be under the influence of either alcohol or narcotics due to Rush’s eyes being constricted, his speech pattern, and “his jerking.” Approximately five minutes into the traffic stop, while Smith conducted a check of Rush’s license, Morgan took his K-9 around the exterior of Rush’s vehicle for a free-air sniff, and the dog returned a positive alert to the seam of the driver’s door. At that point, Smith was still waiting on dispatch to confirm the validity of Rush’s license. Morgan informed Rush about the positive dog alert and gave Rush the opportunity to tell him what was inside the vehicle. Rush admitted that he had a pipe and some methamphetamine in the center console of the car, and also added that he had methamphetamine in his pocket. After Morgan placed Rush under arrest, he recovered a bag of methamphetamine from Rush’s pocket. Police also found a smaller amount of methamphetamine, a smoking device, and a pink tablet in the center console, as well as a loaded pistol and two sets of digital scales inside a safe in the trunk of the car. Rush admitted that the pill was oxycodone.[ii]
Rush was subsequently indicted on drug and weapons charges under Georgia law. He filed a motion to suppress and argued (1) that the officer did not have sufficient reasonable suspicion to conduct a traffic stop and (2) that the officer prolonged the stop to allow the canine to sniff his vehicle. The trial court denied the motion to suppress, and Rush was convicted and sentenced. He then appealed the denial of his motion to suppress.
Rush’s first argument on appeal was that the officer lacked reasonable suspicion or probable cause to justify a stop of his vehicle. The officer testified that he stopped the vehicle because it was driving in the rain without headlights, which are required by Georgia law when raining. Rush argued that there was insufficient evidence to show that it was raining. However, the court of appeals observed wet roads, windshield wipers activated and other vehicles driving with headlights when viewing the officer’s in-car and body camera video. Therefore, the court of appeals held that the officer had sufficient reasonable suspicion to stop Rush, and the factual determination of the trial court was not clearly erroneous.
Rush’s second argument on appeal was that the officer unreasonably extended the duration of the traffic stop by abandoning the purpose of the stop (a traffic violation) to investigate drugs.
The court of appeals first discussed the legal principles relevant to this issue. The court stated
The State bears the burden of proving that the search of the car was lawful, Thomas v. State, 301 Ga. App. 198, 198 (687 SE2d 203) (2009), and to carry this burden, the State must show that it was lawful to detain Rush until the time the drug dog indicated the presence of drugs.[iii]
The court also noted the following legal principles:
- Once a valid traffic stop has been effected, the Fourth Amendment prohibits the officer from unreasonably prolonging the stop beyond the time required to fulfill the purpose of the stop without a reasonable articulable suspicion of other illegal activity.[iv
- But a reasonable time to conduct a traffic stop includes the time necessary for the officer to run a computer check on the validity of the driver’s license and registration, and to check for outstanding warrants and/or criminal histories on the driver and other occupants.[v]
- The law further allows the officer to question the vehicle’s driver and/or its occupants during the course of the stop, and even to lawfully ask questions unrelated to the purpose of a valid traffic stop, so long as the questioning does not unreasonably prolong the detention. Young v. State, 310 Ga. App. 270, 272-273 (712 SE2d 652) (2011)[vi]
- Out of concern for safety, an officer making a traffic stop may also order the driver and any passengers out of the vehicle.[vii]
- [O]ur law is … clear that it is permissible to conduct an open air search around a vehicle while a traffic stop is still in progress so long as the stop has not been unreasonably prolonged for the purpose of conducting the search.” Wilson v. State, 293 Ga. App. 136, 137 (666 SE2d 573) (2008); State v. Simmons, 283 Ga. App. 141, 143 (640 SE2d 709) (2006) (“(t)he use of a drug sniffing dog to conduct a free[-]air search around the exterior of a vehicle during the course of a lawful traffic stop does not implicate the Fourth Amendment under the United States Constitution”).[viii]
The relevant facts of Rush’s case are as follows: (1) Rush was legally stopped by Corporal Morgan for a traffic violation; (2) Rush failed to immediately stop and was seen moving around in the vehicle near the center console; (3) Prior the stop Corporal Morgan had received information from a detective that Rush may be involved in drug trafficking, and the Corporal Morgan knew that weapons are tools of the drug trade; (4) Corporal Morgan had Rush exit the vehicle for his safety; (5) Due to the reaching near the center console and the possible drug involvement, Corporal Morgan conducted a pat-down for weapons; (6) Corporal Morgan felt a bulge that he suspected was methamphetamine, but he did not seize the bag; (7) A sergeant arrived and Corporal Morgan asked him to check Rush’s driver’s license and warrant status; (8) While awaiting driver’s license returns and the warrant check, Corporal Morgan used his canine to conduct a free air sniff of the exterior of Rush’s vehicle, and the canine indicated a positive alert for the presence of illegal drugs; (9) Prior to searching the car, Rush admitted there was a pipe and methamphetamine in the center console and methamphetamine in his pocket; (10) Rush was arrested and methamphetamine was located in his pocket during a search incident to arrest; and (11) A search of the car was conducted and officers found methamphetamine, a smoking device, and a pink tablet in the center console, as well as a loaded pistol and two sets of digital scales inside a safe in the trunk of the car.
Regarding the canine sniff of the vehicle, the evidence showed that the sniff was conducted approximately five minutes into the stop and prior to Corporal Morgan receiving the results of the check of Rush’s driver’s license. Therefore, the canine sniff did not prolong the stop, as it was conducted at a time when officers were awaiting information on the driver’s license. As such, the use of the canine did not violate the Fourth Amendment, and the court of appeals affirmed the denial of the motion to suppress.
It should be noted that the court discussed case law where the use of a canine was held to violate the Fourth Amendment because it extended the time of the detention. For example, in State v. Cunningham,[ix] the court of appeals held that officers violated the Fourth Amendment where the officer had already completed his investigation of the alleged traffic infractions during stop when he decided to retrieve K-9 from his police car to conduct a free-air sniff. Additionally, in State v. Thompson,[x] the court of appeals held that officers violated the Fourth Amendment by continuing to question the defendant after citation had been written and license was returned to defendant, resulting in a 20-minute delay while waiting for drug dog after traffic stop had concluded.
Practice Pointers:
A canine free-air sniff can be conducted during a traffic stop as long as it does not add time to the stop (unless there is reasonable suspicion of drug activity, then it can add a reasonable amount of time to the stop). For example, if a canine officer conducts a traffic stop for a traffic violation and does not have reasonable suspicion that drugs are in the vehicle, the officer cannot, put the traffic stop on hold (meaning stop doing the work associated with the traffic violations) while he conducts a free air sniff. This would add time to the traffic stop. However, if the officer conducts the free air sniff while he is awaiting driver’s license returns, as was the case in Rush, that would be permissible as the sniff does not add time to the stop. Similarly, if there is another officer present and that officer is actively pursuing the duties of a traffic stop (driver’s license and registration checks, warrant checks, writing and issuing a citation), a canine officer could conduct a free air sniff of the vehicle because the traffic stop is being diligently pursued and the sniff would not add time to the stop.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
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Citations
[i] A23A0637 (Ga. App. July 24, 2023)
[ii] Id. at 3-5
[iii] Id. at 9-10 (emphasis added)
[iv] Id. at 10 (emphasis added)
[v] Id.
[vi] Id.
[vii] Id. at 11 (internal citations omitted)(emphasis added)
[viii] Id. at 11-12 (emphasis added)
