On October 13, 2022, the Court of Appeals of Georgia decided the State v. Fish[i], which serves as instructive regarding the scope of a traffic stop and the use of a police K9 to conduct a free air sniff of the vehicle.  The relevant facts of Fish, taken directly from the case, are as follows:

On September 19, 2020, City of Acworth police officer Brandon Greene was in a marked patrol car across from a gas station at the intersection of Ross Road and Highway 92 inside the City of Acworth, in Cobb County. Greene was conducting surveillance at the gas station because the police department had received “multiple complaints of drug activity, drug sales going on at that gas station.” While Greene was observing the gas station through binoculars, he noticed two males and a female walk between the gas station building and a vehicle multiple times and meet with different people over a period of 20 to 30 minutes. The group returned to their vehicle, a black Chevrolet Sonic, and left. Greene did not observe any illegal activity at the gas station, but he deemed their behavior “suspicious.”

Greene followed the vehicle and “started to run the tag on the car” on his computer in his patrol car. The computer search reported that “the tag that was on the car was no longer assigned to the car and it should have a different tag on it.” Greene testified that he received information about the tag and that he initiated the traffic stop by turning his emergency lights on while he was still in Cobb County. However, as they were close to the county line, the vehicle pulled over in Bartow County. The area where the vehicle stopped was the second location available after the officer initiated the stop that would not have impeded traffic, and only ten to fifteen seconds passed between Greene activating his lights and the vehicle pulling over.

Once both vehicles pulled over, Greene made contact with Fish, the driver. Shane McCall was riding in the front passenger seat, and Kirsten Starnes was in the back seat of the vehicle. Greene informed Fish that he pulled the vehicle over because the Sonic’s license plate did not match the vehicle, and Fish responded that the vehicle was a rental car and presented the rental agreement. Greene testified that the agreement was for the rental of a white Chevrolet Sonic (while the vehicle Greene pulled over was a black Chevrolet Sonic) and had a different license plate number. Porsche Gallagher, and not Fish, was listed as the individual who had rented the vehicle on the rental agreement. Fish proceeded to make a phone call to a person he claimed was Gallagher, and he gave the phone to Greene. The woman on the telephone told Greene that “she had rented a car and that [Fish] had authorization to be driving the car.”

During his conversation with Fish, Greene observed that Fish and McCall appeared nervous, so Greene requested consent to search the car, but Fish declined. Greene then testified that he “noticed an Emerson Police Department K-9 officer … sitting on [the] 75 South off-ramp. He was just sitting there. And so [Greene] flagged [the officer] down to come over[.]” It took the K-9 officer less than one minute to join Greene, and the officer agreed to have his K-9 do “an open-air sniff” of the vehicle. Greene testified that “[n]o more than a few minutes” elapsed between the time Greene stopped the Sonic and called over the K-9 officer.

At some point, the occupants were asked to step out of the vehicle. A female Acworth Police Department officer arrived and conducted a search of Starnes. When she arrived the three vehicle occupants were outside of the vehicle, sitting on a guardrail, and the K-9 officer had not begun the K-9 search. The K-9 search did not begin until approximately four minutes after the female officer arrived. Prior to the K-9 search, Greene did not begin to write a citation for any of the vehicle occupants or seek to have the vehicle impounded.

The K-9 search proceeded, and the dog alerted on the vehicle, meaning that the dog smelled narcotics. Greene then conducted a search of the vehicle, during which he found a glass pipe (of the kind commonly used to smoke methamphetamine), a 9-millimeter handgun in the driver’s side door, and a loaded .40-caliber handgun under the driver’s seat. Under the passenger seat, Greene found a 9-millimeter handgun along with a digital scale and a small bag of what appeared to be methamphetamine. Greene found sandwich bags in the trunk and a plastic box, containing 47 grams of a substance that appeared to be methamphetamine, stuck with magnets to a wall in the engine.[ii]

Fish filed a motion to suppress and argued that (1) the officer initiated the traffic stop outside of his jurisdiction, and (2) the K9 search was unlawful.  The trial court granted the motion and the State appealed to the Court of Appeals of Georgia.

On appeal, the court first examined the issue of whether, under the facts of Fish’s case, the K9 sniff violated the Fourth Amendment.  The court of appeals first stated

A seizure for a traffic violation justifies a police investigation of that violation.” Rodriguez v. United States, 575 U. S. 348, 354 (II) (135 SCt 1609, 191 LE2d 492) (2015). . . [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.” Rodriguez, 575 U. S. at 354 (II). “Because addressing the infraction is the purpose of the stop, it may last no longer than is necessary to effectuate that purpose. Authority for the seizure thus ends when tasks tied to the traffic infraction are — or reasonably should have been — completed.” Id.[iii]

Simply put, a traffic stop, that was initially lawful, can become unlawful under the Fourth Amendment if the officer exceeds the permissible scope of the traffic stop.  The permissible time allowed for a traffic stop includes the time needed to investigate and deal with the traffic infraction and the time needed to attend to safety related concerns.  The permissible time ends when the tasks related to the stop are completed or reasonably should have been completed.

The court then specifically addressed K9 sniffs of vehicles as related to the permissible scope of a traffic stop.  The court stated

During a traffic stop, an officer may take steps to ensure roadway safety, such as checking the driver’s license and determining if the driver has any outstanding arrest warrants. Rodriguez, 575 U. S. at 355 (II). However, a dog sniff lacks the close connection to roadway safety, and instead “is a measure aimed at detecting evidence of ordinary criminal wrongdoing.” Id. (citation and punctuation omitted). In order to determine the reasonableness of a seizure, we look to “what the police in fact do.” Id. at 357 (II). “The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket … but whether conducting the sniff prolongs — i.e., adds time to — the stop.” Id. (citation and punctuation omitted; emphasis supplied). “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.Terry, 358 Ga. App. at 200 (1) (citation and punctuation omitted; emphasis in original); see also State v. Herman, 344 Ga. App. 359, 362 (810 SE2d 183) (2018) (“[W]e must determine whether the open-air dog sniff 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.”). . . “[I]n determining the reasonable duration of a stop, it is appropriate to examine whether the police diligently pursued the investigation.” Rodriguez, 575 U. S. at 354 (II) (citation and punctuation omitted).[iv]

During the motion to suppress, the officer testified that while he stood outside the vehicle with the occupants during the K9 sniff, he did not write the traffic citation, did not take steps to impound the vehicle, and did not conduct any other investigation related to the reason for the traffic stop.   He further testified that during this time, he was “investigating what the suspicious activity was at the gas station.”[v]

The court of appeals then applied the previously stated legal principles to the above facts of the case.  The court noted that during the approximate four minutes involving the K9 sniff, the officer did not pursue the mission of the traffic stop, thereforethe officers prolonged the traffic stop in order to conduct the K9 open air sniff which renders the seizure at issue unlawful.”

The court of appeals also noted that the State conceded that the activity the officer observed at the gas station was not sufficient to provide the officer with reasonable suspicion that Fish was involved in drug activity.

Since the traffic stop was found to have exceeded its permissible scope, it violated the Fourth Amendment and suppression of the evidence was warranted.  As such, the court did not address the issue related to whether it was unlawful for the officer to initiate a traffic stop outside of his jurisdiction.

Therefore, the court of appeals affirmed the decision of the trial court.

Practice Pointers:

  1. During a traffic stop, if an officer does not have reasonable suspicion of drug activity but wishes to contact a K9 for a free-air sniff, the officer must do so while he or she is actively pursuing the allowed purposes of a traffic stop (checking the driver’s license, checking for warrants, checking insurance status, verifying authority to possess a rental vehicle if the driver’s name is not on the rental agreement, and investigating the offense for which the person was stopped). If the officer completes all tasks prior to the arrival of the K9 and/or completion of the sniff, further detention of the vehicle and its occupants will be deemed unlawful under the Fourth Amendment.
  2. If the officer does have reasonable suspicion of drug activity, then the officer may continue to detain the vehicle and occupants for a reasonable amount of time to await a K9 for a free-air sniff of the vehicle. This is because the reasonable suspicion of drug activity expands the scope of the traffic stop beyond the traffic violation.

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] A22A0920 (Ga. App. Decided October 13, 2022)

[ii] Id. at 2-5

[iii] Id. at 6-7 (emphasis added)

[iv] Id. at 7-8 (emphasis added)

[v] Id. at 8

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