FIFTH DIVISION

RICKMAN, C. J.,

MCFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

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.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

November 30, 2021

In the Court of Appeals of Georgia

A21A1216. NEELY v. THE STATE. 

MCFADDEN, Presiding Judge.

After a jury trial, Magnum Neely was convicted of drug offenses and a traffic

violation. He appeals, claiming that the trial court erred in denying his motion to

suppress evidence seized during a traffic stop and that his trial counsel was

ineffective. Because the officer who stopped Neely unnecessarily prolonged the

traffic stop without reasonable, articulable suspicion to do so, the trial court erred in

denying the motion to suppress. So we reverse the judgment below and need not

reach the ineffective assistance of counsel claims. 

1. Facts and procedural posture. 

Viewed in the light most favorable to the verdict, see Jackson v. Virginia, 443

U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence presented at trial shows
that on the morning of June 5, 2018, a sheriff’s sergeant and deputy were in a patrol

vehicle when Neely drove past them. The sergeant driving the sheriff’s vehicle made

a U-turn and followed Neely. The sergeant saw Neely’s car cross over the line on the

rightside of the road and then swerve over the double yellow line in the middle of the

road. The sergeant stopped Neely for the lane violation, approached him as he sat in

his car, and saw that he wassmoking a cigarette and appeared to be very nervous. The

sergeant told Neely that he had stopped him because of the lane violation, and Neely

replied that he had been messing with his cell phone.

1

(This was the before the

effective date of Georgia’s new “hands-free” law imposing variousrestrictions on the

use of a cell phone while operating a motor vehicle. See OCGA § 40-6-241 (effective

July 1, 2018.)

The sergeant took Neely’s driver’s license and went back to the sheriff’s

vehicle to check the license while the deputy stayed beside Neely’s car. After

determining that Neely’s license was valid and that there were no outstanding

warrants for him, the sergeant returned to Neely’s vehicle and ordered him to get out

1The sergeant noted during his testimony that the traffic stop occurred prior to

the effective date of Georgia’s new “hands-free” law imposing variousrestrictions on

the use of a cell phone while operating a motor vehicle. See OCGA § 40-6-241

(effective July 1, 2018). 

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of his car. The sergeant directed Neely to stand by the rear of the car and asked him

if there was anything in the car. Neely replied that he had just smoked. The sergeant

then asked if there was anything else in the car, and Neely said that there were pills

and a blunt in his car. The sergeant and deputy then searched Neely’s car while

another officer who had arrived at the scene detained Neely. Inside the car, the

officers found, among other things, methamphetamine, marijuana, cocaine, over

$3,000 in cash, a digital scale, and plastic baggies. 

Neely was arrested and subsequently indicted for trafficking

methamphetamine, possessing cocaine and marijuana with intent to distribute, and

failing to maintain a lane. He pled not guilty to the charges and filed a motion to

suppress evidence seized during the traffic stop, asserting that the arresting officer

had prolonged the stop past the point of completion without reasonable suspicion of

criminal activity. After a hearing at which the sergeant testified, the trial court denied

the motion to suppress. 

The case proceeded to trial before a jury, which found Neely guilty of all

charges. The court imposed concurrent sentences totaling 30 years, with the first 15

years to be served in confinement and the remainder on probation. Neely filed a

motion for new trial, which was denied, and this appeal followed. 

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2. Denial of motion to suppress. 

Neely contends that the trial court erred in denying his motion to suppress

evidence seized during the traffic stop because the arresting officer improperly

prolonged the stop. We agree. 

The [s]tate bears the burden of proving that the search of the

vehicle was lawful, and to carry this burden, the [s]tate must show that

it waslawful to detain [Neely] after dispatch returned information about

his license [validity and the absence of any warrants] . . . . Claims that

an officer illegally prolonged a detention resulting from a traffic stop

generally fall into two categories. The first category involvesthose cases

as here where the officer allegedly extended the stop beyond the

conclusion of the investigation that warranted the detention in the first

place, i.e., whether the officer prolonged the stop after concluding his

investigation of the traffic violation.In such cases, courts have generally

concluded that even a short prolongation is unreasonable unless good

cause has appeared in the meantime to justify a continuation of the

detention to pursue a different investigation. An officer may continue to

detain a driver after the investigation of the traffic violation is complete

only if the officer has a reasonable, articulable suspicion that the driver

was engaged in other illegal activity. 

Weaver v. State, 357 Ga. App. 488, 491 (851 SE2d 125) (2020) (citations and

punctuation omitted). See also State v. Allen, 298 Ga. 1, 4 (2) (a) (779 SE2d 248)

(2015) (traffic stop that is initially justified by the interest in issuing a ticket to the

driver becomes unlawful when it is prolonged beyond the time reasonably required

to complete that mission). 

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In this case, it is undisputed that the time it took the sergeant to check the

validity of Neely’s license and for outstanding warrants did not unreasonably prolong

the traffic stop. “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.” Allen v. State, 348 Ga. App. 595, 598 (1)

(a) (824 SE2d 50) (2019) (citation and punctuation omitted). But after the officer

learned that Neely’s license was valid and that there were no outstanding warrants,

he did not then conclude the traffic stop for the lane violation and allow Neely to

leave. See State v. Allen,supra at 6 (2) (a) n. 4 (“Normally, the traffic stop ends when

the police have no further need to control the scene, and inform the driver and

passengers they are free to leave.”) (citation and punctuation omitted); Bodiford v.

State, 328 Ga. App. 258, 267 (2) (761 SE2d 818) (2014) (if license check showed no

problems and no outstanding warrants, the traffic stop would be concluded and

defendant would be free to go). Instead, the sergeant prolonged the stop and

continued to detain Neely by telling him to get out of his car, directing him to the rear

of the car, and questioning him about what was in the car — a matter unrelated to the

traffic stop for a lane violation. See Duncan v. State, 331 Ga. App. 254, 257 (770

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SE2d 329) (2015) (“Notably, the officer never told [the defendant] that she was free

to go and a reasonable person in her position, asked to step out of her car on the

highway and interrogated by an officer, would not likely have felt free to go about her

business.”). As explained above, this prolonging of the traffic stop was authorized

“only if the officer ha[d] a reasonable, articulable suspicion that(Neely) was engaged

in other illegal activity.” Bodiford, supra (citation and punctuation omitted). 

Here, the trial court found that the officer had such reasonable, articulable

suspicion to prolong the traffic stop because Neely appeared overly nervous and had

a freshly lit cigarette, which the officer had said can be used to mask the odor of

drugs. “But asthis[c]ourt has explained, mere nervousnessis notsufficient to support

a reasonable articulable suspicion to extend a stop after completion of the original

mission.” Weaver, supra at 491. Accord Duncan, supra (defendant’s “nervous

behavior, even coupled with her looking away and shifting around — conduct

consistent with nervousness — was not sufficient to constitute reasonable suspicion

of other illegal activity”). And although the officer testified that smoking a cigarette

“can be used to mask the odor of an illegal substance, [cigarettes] are themselves

legal substances that can be used for a legal purpose and thus do not justify the

officer’sfurther detention of [Neely] under the facts of this case.” State v. Thompson,

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256 Ga. App. 188, 190 (569 SE2d 254) (2002) (officer did not have reasonable

suspicion to prolong traffic stop based on defendant’s extraordinary nervousness,

defensiveness when asked about marijuana, and strong smell of laundry detergent or

dryer sheets that can be used to mask odors of illegal drugs). See also Matthews v.

State, 330 Ga. App. 53, 58 (766 SE2d 515) (2014) (conduct that was neither illegal

nor sufficiently unusual did not provide reasonable basis for suspecting criminal

activity); L. B. B. v. State, 129 Ga. App. 163 (198 SE2d 895) (1973) (“A cigarette

[rolling] paper is legal and gives no cause to arrest and search.”). So contrary to the

trial court’s finding, Neely’s nervousness and the freshly lit cigarette did not provide

reasonable, articulable suspicion of other criminal activity. 

We note that the trial court also found that “[t]he total stop only took three

minutes before the defendant admitted that he had smoked and ultimately that there

was still a ‘blunt’ (jargon known to refer to the marijuana) inside of the vehicle.” But

“there is no bright-line rule for determining when the length of a detention becomes

unreasonable[.]” Nash v. State, 323 Ga. App. 438, 442 (746 SE2d 918) (2013). And

as stated above, “even a short prolongation is unreasonable unless good cause has

appeared in the meantime to justify a continuation of the detention to pursue a

different investigation.” Weaver, supra at 490 (citation omitted). Our Supreme Court

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has explained that “the tolerable duration of police inquiriesin 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.” State v. Allen,supra at 4-5

(2) (a) (citation and punctuation omitted). So in this case, even the short prolongation

of the stop was impermissible since the officer did not have reasonable suspicion to

continue detaining Neely in order to pursue a different investigation unrelated to the

traffic violation that had justified the initial stop. See id. at 11 (2) (c) (absent

reasonable suspicion of another crime, “activities unrelated to the mission of the stop

must not extend the time of the stop at all, and such a prolongation of the stop is not

permissible”). Indeed, the officer’s “[a]uthority for the seizure . . . end[ed] when tasks

tied to the traffic infraction [were] — or reasonably should have been — completed.”

Id. at 15 (2) (e) (citation, punctuation, and emphasis omitted). Because the officer

unreasonably prolonged the traffic stop after the mission of the stop was completed,

it “render[ed] the seizure at issue unlawful[, a]nd this is true even if that process

added very little time to the stop.” Terry v. State, 358 Ga. App. 195, 202 (1) (854

SE2d 366) (2021) (citations and punctuation omitted). Accord Heard v. State, 325

Ga. App. 135, 139 (1) (751 SE2d 918) (2013) (traffic stop prolonged by no more than

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four minutes was unlawful because it lasted longer than was necessary to effectuate

the purpose of the stop). 

Under the foregoing circumstances, the trial court abused its discretion in

denying Neely’s motion to suppress evidence seized from his car. Neely is therefore

“entitled to a new trial and we need not address hisremaining [ineffective assistance]

claims of error. [So] we reverse the trial court’s denial of [the] motion to suppress and

remand the case for further proceedings consistent with this opinion.” Terry, supra

at 203 (2). 

Judgment reversed. Senior Appellate Judge Herbert E. Phipps concurs.

Rickman, C. J., concurs in judgment only.

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