Hayes v. State (2008)

The issue of “the validity of a consent to search given during a traffic stop[ ] is a difficult area of the law and one which has caused much confusion in the real world.” (Citation, punctuation and footnote omitted.) Hayes v. State, 292 Ga. App. 724, 727 (2) ( 665 SE2d 422 ) (2008).

McKnight also was charged with and pleaded guilty to two counts of operating a motor vehicle with defective equipment, in violation of OCGA § 40-8-7. 2 (Citations and punctuation omitted.) Matthews v. State, 294 Ga. App. 836 (1) ( 670 SE2d 520 ) (2008). 3 (Citation and punctuation omitted.) Richbow v. State, 293 Ga. App. 556, 558 ( 667 SE2d 418 ) (2008). 4 (Punctuation omitted.) Id. 5 (Punctuation omitted.) Matthews, 294 Ga. App. at 838 (2) (citing Salmeron v. State, 280 Ga.…

(Citations and footnotes omitted.) Hayes, 292 Ga. App. at 729 (2) (b).

Cf. Hughes v. State, 293 Ga.App. 404, 406 (2), 667 S.E.2d 163 (2008) (after second-tier traffic stop completed and de-escalated into first tier, police free to question and ask for consent); Hayes v. State, 292 Ga.App. 724, 728 (2), 730(2)(d), 665 S.E.2d 422 (2008) (questioning on topics unrelated to constitutional second-tier traffic stop permissible so long as they do not unduly prolong detention).

See State v. Kwiatkowski, 238 Ga. App. 390, 393 ( 519 SE2d 43 ) (1999). 4 But see Nelson v. State, 247 Ga. App. 455, 456 (1) ( 544 SE2d 189 ) (2001) (holding that OCGA § 40-2-41 requires that “no portion of the license tag may be covered with any material so as to render the license information illegible”). 5 (Citation and punctuation omitted.) Salmeron v. State, 280 Ga. 735, 736 (1) ( 632 SE2d 645 ) (2006). 6 Id. at 738 (1). 7 Hayes v. State, 292 Ga. App. 724, 729 (2) (b) (…

See Hayes v. State , 292 Ga. App. 724 , 729 (2) (a), 665 S.E.2d 422 (2008) ("Consent given pursuant to a request made after the motorist has been detained for an unreasonable period of time is not a valid consent[.]") (citations and emphasis omitted).

Under the circumstances, the initial traffic stop had de-escalated into a consensual encounter.”); Davis v. State, 303 Ga. App. 785, 787 ( 694 SE2d 696 ) (2010) (trooper’s request to search did not unreasonably prolong detention when the trooper told the defendant he was free to go after handing him the written warning and his documents, but then, without pausing, asked the defendant if he had any drugs or other illegal contraband in his car and immediately received consent …

The officer, therefore, lacked articulable suspicion of any drug (or other) crime, as the officer’s perception that Scott and Allen were nervous “did not support a finding of reasonable, articulable suspicion that would have justified prolonging the detention.”10 As a general rule, an investigatory stop is not unreasonably prolonged by the time necessary to run a computer check.11 But it does not necessarily follow that an officer may initiate a computer check after completi…

See Hayes v. State, 292 Ga. App. 724, 729 (2) (c) ( 665 SE2d 422 ) (2008) (“[A]ny questioning or small talk, of course, prolongs the detention[;] [t]he question is whether the prolongation is reasonable or unreasonable”) (footnote omitted).

See Hayes v. State, 292 Ga. App. 724, 729 (2) (c) ( 665 SE2d 422 ) (2008) (“[A]ny questioning or small talk, of course, prolongs the detention [;] [t]he question is whether the prolongation is reasonable or unreasonable”) (footnote omitted).

Accord Matthews v. State, 294 Ga. App. 836, 838 (2) ( 670 SE2d 520 ) (2008) (whole court) (“police may lawfully ask questions unrelated to the purpose of a valid traffic stop, so long as the questioning does not unreasonably prolong the detention”) (citations omitted); Hayes v. State, 292 Ga. App. 724, 730 (2) (e) ( 665 SE2d 422 ) (2008) (“Asking the driver to step out of the vehicle does not unduly prolong the detention”) (footnote omitted). 6 (Citation and punctuation omit…

See also Macias v. State, 292 Ga. App. 225, 227 (1) ( 664 SE2d 265 ) (2008) (“[a]s a rule, there is no Fourth Amendment violation when an officer asks the driver to consent to a search during the course of a valid traffic stop”) (citation omitted). 9 (Citations and punctuation omitted.) Salmeron v. State, 280 Ga. 735, 736 (1) ( 632 SE2d 645 ) (2006). 10 (Footnotes omitted; emphasis in original.) Hayes v. State, 292 Ga. App. 724, 729 (2) (a), (b) ( 665 SE2d 422 ) (2008). 11 T…

Andrews, P. J., and Bernes, J., concur. 1 OCGA § 16-13-30 (j). 2 (Citation omitted.) Vansant v. State, 264 Ga. 319, 320 (1) ( 443 SE2d 474 ) (1994). 3 See OCGA § 40-8-73.1 (b) (2) (it is unlawful to operate a motor vehicle which has material and glazing affixed to the rear windshield or side or door windows which reduces light transmission to less than 32 percent, plus or minus 3 percent). 4 The trial court entered a nolle prosequi on the remaining charges. 5 See State v. Si…

However, no argument was pursued in this appeal that the overall length of the traffic stop was unreasonable, and, upon review of the facts, we do not believe that the duration of the stop was excessive. 4 Additionally, a traffic stop does not conclude until the officer completes any “paperwork connected with the citation or a written warning.” (Citation omitted.) Rogers v. State, 323 Ga. App. 647, 649 ( 747 SE2d 213 ) (2013). 5 Although there is nothing in the record to exp…

See Davis v. State, 303 Ga. App. 785, 787 ( 694 SE2d 696 ) (2010) (request made immediately after giving warning ticket); Hayes v. State, 292 Ga. App. 724, 731 (2) (e) ( 665 SE2d 422 ) (2008) (request made 30 seconds after issuing ticket).

See Davis v. State, 303 Ga. App. 785, 787 ( 694 SE2d 696 ) (2010) (request made 7 immediately after giving warning ticket); Hayes v. State, 292 Ga. App. 724, 731 (2) (e) ( 665 SE2d 422 ) (2008) (request made 30 seconds after issuing ticket).

Davis v. State, 306 Ga. App. 185, 187 (1) ( 702 SE2d 14 ) (2010), citing Davis v. State, 303 Ga. App. 785, 787 ( 694 SE2d 696 ) (2010); Hayes v. State, 292 Ga. App. 724, 730 (2) (e) ( 665 SE2d 422 ) (2008) (officer’s request for consent to search 30 seconds after issuing a warning ticket did not unreasonably prolong the detention).

Here, under the facts as found by the trial court, the detention related to the traffic stop had ended, and the immediate request to search did not prolong the detention or otherwise violate the principle articulated in Weems.26 Accordingly, the trial court erred by ruling that Lambert’s consent was 24 See Rowe v. State, 314 Ga. App. 747, 750 (2) (a) ( 725 SE2d 861 ) (2012) (“Upon receiving [her] license and warning ticket, a reasonable person would have concluded that the t…

The officer may question the motorist about anything and may ask for consent to search, as long as the questioning does not unreasonably prolong the detention.” (Footnote omitted.) Hayes v. State, 292 Ga. App. 724, 728 (2) ( 665 SE2d 422 ) (2008).

The officer may question 4 the motorist about anything and may ask for consent to search, as long as the questioning does not unreasonably prolong the detention.” (Footnote omitted.) Hayes v. State, 292 Ga. App. 724, 728 (2) ( 665 SE2d 422 ) (2008).

See id. at 838 (2) (a) (holding that police officer’s request to search vehicle less than 18 minutes after the traffic stop did not unreasonably prolong stop so as to render defendant’s consent to search invalid); Hayes v. State, 292 Ga. App. 724, 731 (2) (e) ( 665 SE2d 422 ) (2008) (holding that search initiated ten minutes after officer wrote warning ticket was not the result of an unreasonably prolonged detention).

Specifically, the inconsistencies in Rocha and Ordonez’s statements 15 Id. (punctuation omitted). 16 See id. at 838 (2) (a) (holding that police officer’s request to search vehicle less than 18 minutes after the traffic stop did not unreasonably prolong stop so as to render defendant’s consent to search invalid); Hayes v. State, 292 Ga. App. 724, 731 (2) (e) ( 665 SE2d 422 ) (2008) (holding that search initiated ten minutes after officer wrote warning ticket was not the resu…

The officer may question the motorist about anything and may ask for consent to search, as long as the questioning does not unreasonably prolong the detention.” Hayes v. State, 292 Ga. App. 724, 728 (2) ( 665 SE2d 422 ) (2008).

Smith, P. J., and Mikell, J., concur. 1 Young and Williams were also both charged with and convicted of the offenses of possession with intent to distribute marijuana and possession of marijuana, but those convictions merged with their respective trafficking convictions for sentencing purposes. 2 Sommese v. State, 299 Ga. App. 664, 665 ( 683 SE2d 642 ) (2009). 3 Id. (citation and punctuation omitted). 4 Id. 5 See, e.g., State v. Menezes, 286 Ga. App. 280, 282 (2) ( 648 SE2d …

On this issue we should defer to the trial court unless the facts are truly egregious.” (Citations and footnotes omitted.) Hayes v. State, 292 Ga. App. 724, 729 (2) ( 665 SE2d 422 ) (2008).

Davis v. State, 303 Ga. App. 785, 787 ( 694 SE2d 696 ) (2010) (“where an officer requests consent to search contemporaneously, or nearly so, with the moment the purpose of a traffic stop is fulfilled, a trial court is authorized to conclude that the request did not unreasonably prolong the detention”) (citation omitted); Hayes v. State, 292 Ga. App. 724, 730 (2) (e) ( 665 SE2d 422 ) (2008) (officer’s request for consent to search 30 seconds after issuing a warning ticket did…

Hayes v. State, 292 Ga. App. 724, 731 (2) ( 665 SE2d 422 ) (2008) (affirming denial of the defendant’s motion to suppress where trial court concluded that the officer requested the defendant’s consent to search 30 seconds after returning the defendant’s paperwork and issuing him a warning ticket for speeding). 3 As in Hayes v. State, it is undisputed in this case that the trooper asked Davis for his consent to search his car immediately after giving him his documents and war…

Hayes v. State, 292 Ga. App. 724, 729 (2) (c), n. 32 ( 665 SE2d 422 ) (2008).

Although the officer’s request for consent to search may not have unreasonably prolonged the detention, see generally Hayes v. State, 292 Ga. App. 724, 726 ( 665 SE2d 422 ) (2008), it was after Bell’s refusal to give consent that the officer asked for the K-9 unit, pulled Bell and Walker out of the vehicle, and conducted the search. 11 See Gonzales v. State, 255 Ga. App. 149, 150 ( 564 SE2d 552 ) (2002). 12 See State v. Habib, 260 Ga. App. 229, 231 (1) ( 581 SE2d 576 ) (2003…

While the sergeant could not recall if he had returned Britt’s documents at the time he asked for consent to search, “as a matter of Georgia law, it does not matter whether the request to search comes during the traffic stop or immediately thereafter.” (Footnotes omitted.) Hayes v. State, 292 Ga. App. 724, 730 (2) (e) ( 665 SE2d 422 ) (2008) (holding that officer’s request to search made 30 seconds after issuing a warning ticket did not unreasonably prolong the detention).

Salmeron v. State, 280 Ga. at 737 ; Hayes v. State, 292 Ga. App. 724, 726 (2) ( 665 SE2d 422 ) (2008).

See Hayes v. State, 292 Ga. App. 724, 729 (2) (c) ( 665 SE2d 422 ) (2008).

See Hayes v. State, 292 Ga. App. 724, 729 (2) (c) ( 665 SE2d 422 ) (2008).

But because a passenger has standing to challenge his or her own illegal seizure and detention in connection with a traffic stop, “and because evidence or contraband discovered in a search of the car during the traffic stop may be considered the fruits of the passenger’s illegal detention, the passenger may move to suppress the evidence or contraband and may thus indirectly challenge the search of the car.” Id. at 282 (1) (citation omitted). 9 See Whren v. United States, 517…

See Hayes v. State, 292 Ga. App. 724, 731 (2) ( 665 SE2d 422 ) (2008) (“virtually contemporaneous request” to search made 30 seconds after defendant issued warning ticket did not unreasonably prolong detention).

See Hayes v. State, 292 Ga. App. 724, 731 (2) ( 665 SE2d 422 ) (2008) (affirming denial of motion to suppress when evidence “[did] not demand a finding contrary to the trial court’s determination” that an officer did not prolong a detention unduly when he obtained consent to search 30 seconds after returning driver’s paperwork and issuing him a warning); Cutter v. State, 274 Ga. App. 589, 593-594 ( 617 SE2d 589 ) (2005) (where there was “no evidence” that a defendant driver …

See Hayes v. State, 292 Ga. App. 724, 731 (2) ( 665 SE2d 422 ) (2008) (affirming denial of motion to suppress when evidence “[did] not demand a finding contrary to the trial court’s determination” that an officer did not prolong a detention unduly when he obtained consent to search 30 seconds after returning driver’s paperwork and issuing him a warning); Cutter v. State, 274 Ga. App. 589, 593-594 ( 617 SE2d 589 ) (2005) (where there was “no evidence” that a defendant driver …

See also Hayes v. State, 292 Ga. App. 724, 724 ( 665 SE2d 422 ) (2008) (in reviewing a trial court’s order on a motion to suppress, this Court “cannot, and will not, usurp the authority of the trial judge to consider such factors as demeanor and other credibility-related evidence in reaching its decision”) (punctuation and footnote omitted).

Accord Langston v. State, 302 Ga. App. 541, 543 ( 691 SE2d 349 ) (2010). 3 (Footnotes omitted.) Hayes v. State, 292 Ga. App. 724, 729 (2) (c) ( 665 SE2d 422 ) (2008). 4 (Footnote omitted.) Spence v. State, 263 Ga. App. 377 (1) ( 587 SE2d 766 ) (2003). 5 (Citation and punctuation omitted.) Byers v. State, 272 Ga. App. 664, 666 ( 613 SE2d 193 ) (2005). 6 See Jones v. State, 259 Ga. App. 849, 852 ( 578 SE2d 562 ) (2003) (evidence that defendant appeared to be hiding something a…

See also Hayes v. State, 292 Ga. App. 724, 730 (2) (d) ( 665 SE2d 422 ) (2008).

See also Hayes v. State, 292 Ga. App. 724, 724 ( 665 SE2d 9 422) (2008) (in reviewing a trial court’s order on a motion to suppress, this Court “cannot, and will not, usurp the authority of the trial judge to consider such factors as demeanor and other credibility-related evidence in reaching its decision”) (footnote and punctuation omitted).