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State v Nash the 4th Amendment still smells fresh in Georgia

State v. Nash, A13A0200, A13A0201, Court of Appeals of Georgia, July 16, 2013. The sweet smell of Constitutional rights permeated the Georgia Court of Appeals after reversing a  Gwinnett County trial court’s ruling denying the suppression of cocaine, ecstasy, and marijuana, based in part on a Gwinnett County Police officer’s testimony to the “overwhelming odor of air freshener” creating a suspicion for a prolonged stop of a vehicle during a routine traffic stop.  Mr. Nash and Mr. Davis were on their way back from Atlanta when their car was stopped by a Gwinnett County officer for a traffic violation.  The officer noticed multiple tree-shaped air fresheners on the vents and one hanging from the rearview window.  After speaking with the passengers, he tested the window’s tints, determining them to be in violation of Georgia’s 32% law.

The Gwinnett County officer radioed for backup because he was suspicious of criminal activity given the air fresheners and the passengers’ conflicting stories (the driver said they were visiting family in Buford while Davis stated they were visiting people in Atlanta).  The backup officer arrived twenty minutes after the initial stop, at which time a citation had been issued for the tints violation.  The driver was then asked if there was any marijuana, cocaine, methamphetamine, or ecstasy in the car.  After denying the presence of narcotics, the officer asked Nash, whose mother owned the car, if he would consent to a search.  Nash declined to consent to search and the officer stated he appeared nervous.  A canine unit was requested to the scene, arriving 30-45 minutes after the initial stop.

The Appeals Court was charged with the task of determining, “whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.”  Pollack v. State, 294 Ga. App. 400, 404.  The Court decided that while the officers’ questioning during the investigation into the window tints did not “unreasonably expand the scope or duration of the stop,” the overall detention was neither brief nor justifiable (I guess 20 minutes is about how long the Court of Appeals thinks it takes to write a ticket for a tints violation).  Furthermore, the officer had concluded the traffic investigation prior to inquiring about criminal activity or requesting to search the car.  The additional twenty-minute delay while waiting for the canine unit to arrive was deemed unlawful.

The dissent tried to reconcile previous cases allowing for a canine search anywhere from 30 minutes to an hour after the traffic stop concluded.  However, those cases involved either car that was traveling erratically within a known drug route or officers that detected the odor of marijuana in the car.  I don’t know, maybe it was the roses, but it looks like the majority eventually got this one right.

-authored by Eric Bernstein

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