On July 24, 2023, the Court of Appeals of Georgia decided Rush v. State[i], which serves as an excellent review of the law related to pretextual traffic stops and canine sniffs of vehicle during traffic stops. The relevant facts of Rush are as follows:
[T]he record shows that on May 27, 2020, Mark Sutton, a narcotics investigator with the Lumpkin County Sheriff’s Office, received a tip from a confidential informant about the details of a vehicle in Dahlonega involved in drug activity. Investigator Sutton observed the vehicle in the area and followed it to a gas station. Sutton later identified the driver as Rush. Sutton then contacted Corporal Corey Morgan with the Lumpkin County Sheriff‘s Office K-9 unit to initiate a traffic stop of Rush’s vehicle based on his suspicion that the vehicle was involved in transporting narcotics. Sutton gave Morgan a description of Rush’s vehicle and the direction of travel. Sutton believed that one of the headlights on Rush’s vehicle was damaged, but he advised Morgan “to get his own independent probable cause” for the stop.
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 patdown 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. Corporal 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 indicted for trafficking methamphetamine and other drug offenses under Georgia law. He filed a motion to suppress which was denied. Rush was convicted at a bench trial and subsequently appealed the denial of his motion to suppress to the Court of Appeals of Georgia.
Rush raised three issues on appeal. First, he argued that the stop of his vehicle was without reasonable suspicion or probable cause. Second, he argued that the deputies unreasonably prolonged his traffic stop to conduct a canine sniff of his vehicle. Third, he argued that the deputies improperly conducted pretextual stop, meaning they stopped him for a traffic violation but actually wanted to conduct a drug investigation.
Issue One: Whether the stop of Rush’s vehicle was supported by reasonable suspicion or probable cause?
The court of appeals first examined the legal principles relevant to this issue. The court stated
The legality of a traffic stop is measured by “an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time. The validity of the stop, thus, depends on what the driver was doing and what that reasonably conveyed to the officer, not on what else the officer thought might be occurring.” Rosas v. State, 276 Ga. App. 513, 515 (1) (a) (624 SE2d 142) (2005)[iii]
In Rush’s case, Corporal Morgan testified that he observed Rush operating a vehicle in the rain without headlights activated, which is required by Georgia law. The court noted that the body camera video supported the deputy’s testimony in that it showed other vehicles with headlights on, wet roads, and windshield wipers activated. Thus, the trial court did not err in crediting the deputy’s testimony. As such, the court of appeals held that the stop was supported by reasonable suspicion or probable cause.
Issue Two: Whether the deputies unreasonable prolonged the traffic stop to conduct a drug investigation by having a canine conduct a sniff of the exterior of Rush’s vehicle?
The court of appeals first stated that in order for a canine sniff to be legal, the State must show that the deputies lawfully detained Rush until the time the canine alerted on the vehicle. The court also noted the legal principles relevant to this issue and stated
[1] It is axiomatic that a police officer who observes a traffic violation is authorized to conduct a traffic stop of the vehicle in question.
[2] 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.
[3] […] 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.
[4] 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)[iv]
In Rush’s case, after Corporal Morgan initiated the traffic stop, Rush did not immediately stop. Rather, he continued to drive, moved around and reached about his vehicle. The deputy even activated his siren in addition to his lights to stop Rush. Corporal Morgan testified that this can be an indicator that a person is trying to access or hide a weapon. The court of appeals noted that
[O]ut of concern for safety, an officer making a traffic stop may also order the driver and any passengers out of the vehicle.[v]
Here, Corporal Morgan had Rush exit the vehicle, and conducted a frisk of Rush for weapons. He felt a bulge in Rush’s pants pocket, and Rush told Morgan it was cash. Morgan believed it to be methamphetamine, although he did not remove it at that time.
Sergeant Smith then arrived, and he conducted a check of Rush’s driver’s license through dispatch. As the deputies awaited the driver’s license information, Corporal Morgan used his canine to conduct a free-air sniff of the exterior of Rush’s vehicle. The dog provided a positive alert. Because the canine sniff occurred while the deputies were awaiting the driver’s license status and warrant information, the sniff did not unreasonably prolong the stop. Further, the court stated
After the drug dog’s positive alert on the driver side door of Rush’s vehicle, the police had probable cause to search the vehicle, which then yielded the discovery of the methamphetamine, smoking device, and oxycodone 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. See Davidson v. State, 257 Ga. App. 260, 264 (1) (b) (570 SE2d 698) (2002) (drug dog’s alert on front passenger door of defendant’s vehicle provided police officer with probable cause to search glove compartment where officer retrieved bags containing cocaine).[vi]
Thus, Corporal Morgan had probable cause to search the vehicle. Additionally, a search of Rush was permissible incident to arrest.
Therefore, the deputies did not unreasonably prolong the stop by conducting a canine sniff.
Issue Three: Whether the deputy conducted an improper, pretextual stop for a traffic violation with the intent of conducting a drug investigation?
The court first discussed the legal principles relevant to this issue and stated
The decision to stop an automobile is not unreasonable if the police have probable cause to believe that a traffic violation has occurred. Delaware v. Prouse, 440 U. S. 648, 661 (V) (99 SCt 1391, 59 LE2d 660) (1979). And it does not matter that the officer also believes the motorist has committed some other offense. Whren v. United States, 517 U. S. 806, 812-813 (II) (A) (116 SCt 1769, 135 LE2d 89) (1996). The fact that a law enforcement officer may have some “ulterior motive” does not convert a constitutional stop supported by probable cause into a violation of the Fourth Amendment. See id. at 812-813 (II) (A), 819 (III) (pretextual stops supported by probable cause do not violate the Fourth Amendment).[vii]
First, since it was determined in Issue One that the stop of Rush’s vehicle was supported by a traffic violation, specifically, not having his headlights activated in the rain, the stop was legal under the Fourth Amendment, even if the deputies had an ulterior motive of conducting a drug investigation. Second, as discussed in Issue Two, the stop was conducted legally, specifically, the deputy had Rush exit the vehicle as he was allowed to do, and conducted a free-air sniff of the vehicle as the deputies were awaiting Rush’s driver’s license status and warrant returns. This did not unreasonably prolong the stop. Third, the canine alert provided probable cause for the search. As such, the pretextual stop was not in violation of the Fourth Amendment.
Thus, the court of appeals affirmed the denial of the motion to suppress.
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] 368 Ga. App. 827 (2023)
[ii] Id. at 828-829
[iii] Id. at 830-831 (emphasis added)
[iv] Id. at 831-832 (emphasis added)
[v] Id. at 832 (emphasis added)
[vi] Id. at 832-833 (emphasis added)
[vii] Id. at 833-834 (emphasis added)
