Opinion
A99A0119.
DECIDED: JUNE 2, 1999
Drug violation. Barrow Superior Court. Before Judge Motes.
Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellant.
Hicks Massey, William E. Hicks, for appellees.
Pursuant to OCGA § 5-7-1, the State appeals the trial court's order suppressing evidence of 27 pounds of marijuana found in appellants' car. For the following reasons, we affirm.
In reviewing a trial court's order granting a motion to suppress, we construe the evidence most favorably to uphold the court's ruling. Mao v. State, 222 Ga. App. 482, 483 ( 474 S.E.2d 679) (1996). It is the trial court's duty to resolve conflicts in the evidence, and its findings of fact and credibility will not be disturbed on appeal unless they are clearly erroneous. Id.
At about 4:17 p.m. on August 15, 1997, Barrow County Deputy Sheriff McDaniel noticed a black Toyota 4-Runner parked in a Department of Transportation parking lot just off Highway 211. Although Deputy McDaniel saw nothing to make him think the car had broken down or that its passengers were in distress, he went to investigate. The deputy drove up beside the car and spoke with the driver, Tanya Leonard, and the passenger, Chris Kwiatkowski (the appellants). The deputy asked the appellants for identification and asked why they were parked in the DOT lot. The appellants, who were from Virginia, calmly explained that they were looking for Chateau Elan, that they missed their turn, and that they were lost. The deputy took the appellants' Virginia drivers licenses and parked his patrol car behind the appellants' car. He noticed that the car had a North Carolina tag. A check of Kwiatkowski's drivers license revealed that it had been suspended.
About three to five minutes later, Deputy Holcomb arrived and parked his patrol car next to Deputy McDaniel's car. Deputy McDaniel handed Deputy Holcomb the appellants' drivers licenses. Deputy Holcomb took the licenses and walked to the appellants' car. He asked Kwiatkowski if he had any illegal drugs, money, alcohol, or guns in the car and also asked for consent to search the car. Kwiatkowski said "no" to both questions. Deputy Holcomb said Kwiatkowski seemed somewhat nervous because he "would look away when he answered [the deputy's] questions." Deputy Holcomb did not give the appellants their drivers licenses or tell them that they were free to leave.
While Deputy Holcomb was questioning the appellees, a third deputy, Deputy Evans, arrived. Deputy Evans also asked the appellants for consent to search. For the second time, Kwiatkowski said "no." At 4:37 p.m., Deputy McDaniel radioed for a canine unit. Deputy McDaniel still had the appellants' licenses. There is no evidence that any of the deputies intended to or ever cited the appellants for any traffic offense. Nor did any deputy ever tell the appellants they were free to leave although, according to Deputy McDaniel, they were free to do so — "[a]ll they had to do was ask." Deputy McDaniel explained that he called for the drug dog because the appellants were parked in a DOT parking lot in a "high drug area" in an "out-of-state vehicle. At that one point they had done got nervous. You know, if you're not holding, you don't say no [to a request to search]. You don't care."
After Deputy McDaniel called for the drug dog, Deputy Evans returned the appellants' drivers licenses to them. He testified: "I remember I told [Kwiatkowski] the dog would be here in a few minutes, and we would cure the little problem of our suspicion and they would be ready to go." Fourteen minutes later, at 4:51 p.m., the canine unit arrived. The appellants were placed in the back of Deputy Holcomb's patrol car with the doors open. The drug dog alerted on the tailgate of the car. Deputy Evans found a large bag containing about 27 pounds of marijuana in a bag in the back of the car.
Although Deputy McDaniel's initial contact with the appellants can be characterized as a noncoercive, police-citizen inquiry, see O'Donnell v. State, 200 Ga. App. 829, 831 (1) ( 409 S.E.2d 579) (1991), the situation rapidly matured into an investigative detention, a seizure within the meaning of the Fourth Amendment for which reasonable articulable suspicion of criminal activity is required. In this case, the appellants were detained without reasonable articulable suspicion while the canine unit was called. As we have explained:
A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. In order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise terminate the encounter.
(Punctuation omitted.) McClain v. State, 226 Ga. App. 714, 716 (1) ( 487 S.E.2d 471) (1997). A reasonable person would not have believed he was free to leave considering these circumstances: Three deputies and three patrol cars created an authoritative presence at the scene; the deputies kept the appellants' drivers licenses while they asked twice over a twenty-minute period whether any drugs were present in the car and whether they could search; the out-of-state appellees could not have left at that point without their drivers licenses; the appellees made it clear that they were not amenable to a consent search yet the deputies did not, at any time, inform the appellees that they were free to leave; and, when Deputy Evans finally did return the appellees' drivers licenses to them, he made a statement from which the appellees could reasonably infer that they were required to wait until after the drug dog arrived and "cured the little problem" of the deputies' suspicions. The appellees were "seized" within the meaning of the Fourth Amendment. See United States v. Mendenhall, 446 U.S. 544, 554 ( 100 SC 1870, 64 LE.2d 497) (1980); Rogers v. State, 206 Ga. App. 654, 657-658 (1) ( 426 S.E.2d 209) (1992).
"An officer must have a reasonable and articulable suspicion that a person is involved in criminal activity to justify seizing that person for a brief period of time without probable cause to make an arrest." State v. Stansbury, 234 Ga. App. 281, 282 ( 505 S.E.2d 564) (1998). See also Terry v. Ohio, 392 U.S. 1 ( 88 SC 1868, 20 LE.2d 889) (1968). The suspicion must be one that provides a "basis from which the court can determine that the detention was not arbitrary or harassing." McFadden v. State, 218 Ga. App. 327 (1) ( 461 S.E.2d 542) (1995).
Given the facts of this case, we cannot agree with the State that the officers possessed a reasonable and founded suspicion for detaining the appellants while awaiting the drug dog. Stopping in a parking lot while lost, being from out-of-state, being in a car with a tag from another state — these are not factors which alone are sufficient to suggest criminal activity. Rather, they are frequent occurrences in our highly mobile society. Also, that appellants were parked in a high drug area does not alone constitute a justification for a brief detention. Barnes v. State, 228 Ga. App. 44, 46 ( 491 S.E.2d 116) (1997); Rogers v. State, supra at 659. Further, nervousness does not provide reasonable suspicion of criminal behavior as a matter of law. Parker v. State, 233 Ga. App. 616, 618 (1) ( 504 S.E.2d 774) (1998). Finally, Kwiatkowski's refusal to consent to a search of the car cannot constitute reasonable suspicion. See Smith v. State, 216 Ga. App. 453, 454-455 (2) ( 454 S.E.2d 635) (1995). The appellants were detained solely on Deputy McDaniel's hunch that drugs were in the car.
Because the deputies lacked reasonable articulable suspicion for detaining the appellants while the drug dog was called, the trial court properly granted the motion to suppress the marijuana evidence discovered as a result of the drug dog's alert.
Judgment affirmed. McMurray, P.J., and Ruffin, J., concur.