SECOND DIVISION

ANDREWS, P. J.,

MILLER and BRANCH, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules

November 16, 2015

In the Court of Appeals of Georgia

A15A1498. REYES v. THE STATE.

BRANCH, Judge.

Following a trial by jury, Roger Alcantara Reyes was convicted on separate

counts of possession of cocaine and possession of heroin. On appeal, he contendsthe

evidence was insufficient to support the convictions and that the trial court erred by

denying his motion to suppress evidence obtained during a traffic stop. We hold that

the evidence presented at trial, including the proceeds of the vehicle search, was

sufficient to sustain the convictions, but remand the case to the trial court for further

consideration of the validity of the vehicle search executed after the valid traffic stop.

1. We turn first to the traffic stop. On review of a motion to suppress, we apply

these principles:
First, . . .[the trial judge’s] findings based upon conflicting evidence are

analogous to the verdict of a jury and should not be disturbed by a

reviewing court if there is any evidence to support [them]. Second, the

trial court’s decision with regard to questions of fact and credibility

must be accepted unless clearly erroneous. Third, the reviewing court

must construe the evidence most favorably to the upholding of the trial

court’s findings and judgment.

Miller v. State, 288 Ga. 286-287 (1) (702 SE2d 888) (2010) (citations, punctuation

and footnote omitted.) Fourth, we review questions of law de novo. State v. Bethel,

307 Ga. App. 508, 509 (705 SE2d 860) (2010). Finally, when reviewing a ruling on

a motion to suppress, we may consider testimony submitted both at the hearing on the

motion to suppress and at trial. See Foster v. State, 321 Ga. App. 118 (1) (741 SE2d

240) (2013); White v. State, 263 Ga. 94, 98 (5) (428 SE2d 789) (1993). 

The evidence from both proceedingsshowsthat on October 18, 2012, Georgia

State Patrol Trooper Chris Carlisle was working in Gwinnett County in collaboration

with the Immigration and Customs Enforcement arm of the Department of Homeland

Security, conducting surveillance in connection with an investigation into money

laundering. Carlisle testified that drug cartels in Mexico would arrange to transfer

drug sales proceedsto people in the United States who would then launder the money

into bank accounts. At about 3:30 p. m., Carlisle saw a dark blue Jeep Commander

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with a certain license tag number drive into a business parking lot and, as he learned

via radio from other officers, deliver a bag containing approximately $200,000 to a

federal agent. Carlisle testified that based on the money transfer, “[w]e know this

person is involved in some kind of illegal act.” When the Jeep left the parking lot,

Carlisle followed in his unmarked car, keeping the Jeep within sight as it traveled

down I-85 southbound to I-75 southbound, even though the Jeep exited and then

reentered the highway in what appeared to be a way to determine if anyone was

following; the Jeep proceeded to Clayton County, where the it exited and stopped at

a Chevron station. There, the Jeep pulled up to a gas pump but never got gas, then it

changed location several times at the station before the driver and passenger got out

and went into the neighboring restaurant to eat. Over the course of about 45 minutes

to an hour, the men went in and out of the restaurant more than once and were often

seen talking on their cell phones. They also spent several minutes looking at the

undercarriage of the Jeep from the front to the back of the vehicle, which, according

to Carlisle, could show that the men were looking to see if a GPS tracking device had

been attached to the Jeep. 

A red Ford Explorer with a drive-out license tag then pulled into the Chevron,

circled around, and parked next to the Jeep. The driver of the Ford got out and

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exchanged a few words with the men in the Jeep; two large, wheeled suitcases then

were transferred from the Ford to the Jeep, but there is no evidence as to who moved

the suitcases. The same two men who had driven the Jeep from Gwinnett County got

back into the Jeep and drove out of the Chevron station; the Ford left drove off in a

different direction. Carlisle and other officers followed the Jeep, but, concerned that

the suitcases were filled with drugs or money, Carlisle called for a marked car to pull

over the Jeep for any traffic violation. Soon the Jeep drove outside of its lane and

turned without signaling and was pulled over by Officer Mitnaul in a marked car;

Carlisle then arrived on the scene. A video recording of the traffic stop was

introduced into evidence and shown at the hearing on the motion to suppress. 

Carlisle testified that after Reyes, who had been driving the Jeep, got out of the

vehicle, he was very nervous and shaky, had a dry mouth, and avoided eye contact.

The passenger, Silvestre Lopez Oloarte, spoke very little English and it was difficult

to confirm his identity; he had a Mexican identification card. Reyes said that he had

been driving the Jeep, which was registered in North Carolina, for about 15 days; he

said that the car belonged to a friend of Oloarte, but he personally did not know who

the owner was. He claimed he had known Oloarte for several years, but he gave a

name different than the one on Oloarte’s identification card. When asked where he

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had come from in the Jeep, Reyes gave an answer inconsistent with what Carlisle had

personally observed. Reyes said that he drove from Doraville to Clayton County to

get gas, yet the prices were not better in Clayton County and Reyes, in fact, did not

get any gas. Carlisle could see the two suitcases in the back seat of the Jeep, and he

asked Reyes if he was going to the airport. Reyes replied, “no” and that he did not

know what suitcases Carlisle was talking about. Oloarte said that a friend gave them

the suitcases and told them to drive them somewhere but that he did not know how

to contact the friend. 

The traffic stop had lasted almost 24 minutes when Mitnaul issued Reyes a

warning citation, returned Reyes’s licence to him, and gave Reyes a form for consent

to search the Jeep. In a conversation that lasted several more minutes, Reyes asked

questions about the consent form, expressed reservations because the Jeep did not

belong to him, and ultimately refused to consent to a search of the Jeep. After Reyes

refused, Carlisle requested the K-9 officer who had arrived sometime earlier to

perform a dog sniff of the vehicle. The dog alerted, the vehicle was searched, and in

the suitcases the officers found 22 wrapped and taped bricks of what proved to be

heroin weighing approximately 22,000 grams and 7 bricks of cocaine weighing 7,709

grams. 

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Both Reyes and Oloarte were charged with possession of and trafficking in

cocaine and heroin, andReyes was charged with failure to signal while turning. Reyes

was tried separately and convicted on both counts of possession but acquitted of

trafficking. 

In its order denying Reyes’s motion to suppress, the trial court found that

Reyes was legally stopped because he failed to signal before turning and failed to

maintain his lane while driving. The court also found that, analyzing the totality of

the circumstances, the officers did not unreasonably extend the stop of the car or its

occupants. In so doing, the trial court stated that it “does not find that the use of the

canine contemporaneously with the traffic stop to conduct an open air search of the

vehicle was in violation of the Defendant’s rights.” (Emphasis supplied). The court

also found as a matter of fact that Reyes and Oloarte gave conflicting stories, that

Reyesindicated that he was driving a friend’s car but declined to name the friend, and

that Reyes was nervous and shaking during the encounter. 

1. Reyes does not contest the validity of the initial traffic stop. Rather, he

contends that the officers detained him after the traffic stop was completed in order

to perform the dog sniff and that the officers did not have reasonable suspicion of

criminal activity to do so.

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The United States Supreme Court recently has reiterated that “a police stop

exceeding the time needed to handle the matter for which the stop was made violates

the Constitution’s shield against unreasonable seizures.” Rodriguez v. United States,

_ U. S. _ (135 SCt 1609, 191 LE2d 492) (2015). “Like a Terry stop, the 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.” Id. at __ (II) (citations omitted.) An officer may not conduct

unrelated investigations during an otherwise lawful traffic stop “in a way that

prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify

detaining an individual.” Id. at __ (II). Thus, because “a dog sniff is not fairly

characterized as part of the officer’s traffic mission,” a dog sniff that prolongs the

traffic stop must be justified by reasonable suspicion of other criminal activity. Id. at

__ (1).

Here, as the video shows and the State concedes, the dog sniff was performed

after the completion of the traffic-violation stop was concluded and after several more

minutes of attempting to get Reyes to consent to a search of the Jeep. The dog sniff

clearly prolonged the traffic-violation portion of the stop and therefore, the trial

court’s conclusion that the dog sniff occurred during the traffic stop was incorrect.

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The trial court relied on that finding and did not analyze whether the officers had

reasonable suspicion of other criminal activity to justify either the initial stop or

Reyes’s continued detention for the dog sniff. 

Whether a traffic stop was reasonable under the Fourth Amendment does not

depend upon the subjective motives, beliefs, or intentions of the individual officers

involved. See Whren v. United States, 517 U. S. 806, 813 (II) (A) (116 SCt 1769, 135

LE2d 89) (1996) (“[s]ubjective intentions play no role in ordinary, probable-cause

Fourth Amendment analysis,” and “the constitutional reasonableness of traffic stops

[does not] depend[ ] on the actual motivations of the individual officers involved”);

Maryland v. Macon, 472 U. S. 463, 470-471 (II) (A) (105 SCt 2778, 86 LE2d 370)

(1985) ( “[w]hether a Fourth Amendment violation has occurred turns on an objective

assessment of the officer’s actionsin light of the facts and circumstances confronting

him at the time, and not on the officer’s actualstate of mind at the time the challenged

action was taken”) (citation and punctuation omitted); Rodriguez v. State, 295 Ga.

362, 371 (2) (b), n. 13 (761 SE2d 19) (2014) (same). Thus, a stop may be justified

based on reasonable suspicion of a separate violation of law from the basis given by

the officer for the stop. See, e.g., Maxwell v. State, 249 Ga. App. 747, 748 (549 SE2d

534) (2001) (officer who stopped vehicle based on probable cause of a traffic

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violation also had reasonable suspicion of a separate violation of law); United States

v. Cardona Rivera, 904 F2d 1149, 1153 (7th Cir. 1990) (where officers’ claim that

they stopped defendant for traffic violations was “not worthy of belief” but where

officers had other “objectively reasonable grounds for doing so,” the stop was legal).

Cf. Devenpeck v. Alford, 543 U. S. 146, 153 (II) (125 SCt 588, 160 LE2d 537) (2004)

(an officer’s “subjective reason for making the arrest need not be the criminal offense

as to which the known facts provide probable cause”).

Here, in addition to probable cause for failure to signal and maintain lane while

driving, the officers may have had reasonable suspicion prior to stopping the Jeep of

other illegal activity arising out of the collective knowledge of the officers who were

in communication with each other both during the money laundering investigation

and the subsequent events at the Chevron station. See Burgeson v. State, 267 Ga. 102,

105 (3) (a), 475 S.E.2d 580 (1996) (setting forth the collective knowledge rule). 

The State bears the burden of proving facts that establish a basis for continued

detention. McSwain v. State, 240 Ga. App. 60, 61 (522 SE2d 553) (1999). Although

whether the State has met this burden is a question of law, Rosas v. State, 276 Ga.

App. 513, 516 (1) (b) (624 SE2d 142) (2005), we are unable to address the question

on appeal because the trial court did not make any findings related to Reyes’s

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involvement in the earlier transfer of money to an undercover agent which, if

credible, is relevant to a determination of whether the officers had reasonable

suspicion, both before the traffic stop and thereafter, that Reyes wasinvolved in other

criminal activity, such as money laundering or drug trafficking. And “an appellate

court generally must limit its consideration of the disputed facts to those expressly

found by the trial court.” Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636)

(2015) (footnote omitted). “If the trial court has made express findings of fact, but not

with sufficient detail to permit meaningful appellate review, an appellate court may

remand for further findings.” Id., n. 6 (citations omitted).

Because the trial court erred by finding that the dog sniff occurred

contemporaneously with the traffic stop and because the trial court did not make

findings regarding Reyes’ possible involvement in events discovered during the

money laundering investigation, we vacate both the trial court’s order denying

Davis’s motion to suppress and the judgment of conviction and remand the case for

further proceedings consistent with this opinion. See State v. Able, 321 Ga. App. 632,

636 (742 SE2d 149) (2013) (vacating and remanding decision on motion to suppress

for trial court to further consider issues); see also Rodriguez, _ U. S. at __.

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2. Reyes also challenges the sufficiency of the evidence on both counts of

possession of a controlled substance. When the appellate courts review the

sufficiency of the evidence, they do not “re-weigh the evidence” or resolve conflicts

in the testimony; instead they defer “to the jury’s assessment of the weight and

credibility of the evidence.” Greeson v. State, 287 Ga. 764, 765 (700 SE2d 344)

(2010). See also Glaze v. State, 317 Ga. App. 679, 680-681 (1) (732 SE2d 771)

(2012). Appellate courts determine whether “after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation and emphasis

omitted).

Reyes was found to be driving a Jeep, the same vehicle he had been driving for

two or three weeks, that contained suitcases that contained large quantities of heroin

and cocaine. When driving from Gwinnett to Clayton County, he made a maneuver

that appeared to an officer to be an attempt to ensure that no one was following the

Jeep. At the Chevron, he and Oloarte searched the undercarriage of the Jeep in a way

that appeared to an officer to be an attempt to ensure that a GPS device had not been

attached to the Jeep. He and his passenger waited for almost an hour at the Chevron

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without buying gas before a Ford Explorer arrived, and they were present when the

two large suitcases were transferred from the Ford to the back seat area of the Jeep.

The suitcases were in plain view in the back seat of the Jeep at the time of the traffic

stop, yet when confronted about them, Reyes denied knowing whatsuitcases Carlisle

was talking about. Reyes testified in his own defense that he was a only a driver for

Oloarte, that he followed Oloarte’s instructions on where to drive and where to park,

that he never had contact with the people in the Ford Explorer, and that he did not

move the suitcases from the Ford to the Jeep. 

[T]he law recognizes that possession can be actual or constructive, sole

or joint . . . . A person has actual possession of a thing if he knowingly

has direct physical control of it at a given time. A person who, though

not in actual possession, knowingly has both the power and intention at

a given time to exercise dominion or control over a thing is then in

constructive possession of it. If one person alone has actual or

constructive possession of a thing, possession is sole, but if two or more

persons share actual or constructive possession of a thing, possession is

joint.

Holiman v. State, 313 Ga. App. 76, 78 (1) (720 SE2d 363) (2011) overruled in part,

on other grounds, Maddox v. State, 322 Ga. App. 811, 815 (2) (746 SE2d 280) (2013)

(citations and punctuation omitted). The trial court instructed the jury on this law. “A

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finding of constructive possession of contraband cannot rest upon mere spatial

proximity to the contraband,” Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204)

(1997), and the defendant’s mere presence at the scene of the crime is an insufficient

basis to convict. Whipple v. State, 207 Ga. App. 131, 132 (1) (427 SE2d 101) (1993).

Here, the jury had sufficient evidence to conclude that Reyes was a party to the crime

of possession of the contraband. He drove and inspected the vehicle in a way that

suggested he was worried about being followed; he was present when the two

suitcases were transferred to the Jeep; and the suitcases were in plain view in the

vehicle as he drove away from the Chevron. Thus, the State’s evidence showed more

than Reyes’mere presence in the Jeep or spacial proximity to the contraband; it raised

a reasonable inference that Reyes had the intent to exercise control over the

contraband.

Reyes argues that because Oloarte had equal access to the suitcases, the

evidence was insufficient to support his conviction of possession of the contraband.

But as this Court has recently clarified,

Circumstantial evidence that multiple occupants of a car had equal

access to hidden contraband may support the theory that all the

occupants were guilty as parties to the crime and had joint constructive

possession of the contraband. Under these circumstances, the State may

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elect to prosecute the occupants jointly or separately or may elect to

prosecute only one of the occupants for directly committing the crime,

but nevertheless prove the sole prosecuted occupant was guilty as a

party to the crime.

Maddox, 322 Ga. App. at 811 (citations and punctuation omitted). 

Judgment vacated and case remanded with direction. Andrews, P. J., and

Miller, J., concur.

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