FIRST DIVISION

PHIPPS, C. J.,

DOYLE, P. J, and BOGGS, J.

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/

June 11, 2015

In the Court of Appeals of Georgia

A15A0099. LEWIS v. THE STATE. DO-005 C

DOYLE, Presiding Judge.

Following a bench trial, Richard Lewis was convicted of possession of less

than one ounce of marijuana

1

and possession of a drug-related object.

2 He now

appeals from the denial of his motion for new trial, contending that the trial court

erred by denying his motion to suppress evidence obtained during a traffic stop.

Specifically, Lewis argues that the arresting officer impermissibly prolonged the

traffic stop before conducting a free-air sniff search with a trained police narcotics

dog and obtaining reasonable suspicion to conduct a non-consensual search of his

vehicle. For the reasons that follow, we affirm.

1

 OCGA §§ 16-13-2 (b); 16-13-30 (j) (1).

2

 OCGA § 16-13-32.2 (a).
There are three fundamental principles which must be followed

when conducting an appellate review of a trial court’s ruling on a

motion to suppress. First, when a motion to suppressis heard by the trial

judge, that judge sits as the trier of facts. The trial judge hears the

evidence, and his 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. These principles apply equally whether

the trial court ruled in favor of the State or the defendant.3

To the extent that “the evidence at a suppression hearing is uncontroverted and the

credibility of witnesses is not in question, we conduct a de novo review of the trial

court’s application of the law to the undisputed facts.”4

The evidence in this case includes a video recording of the traffic stop as well

as testimony from the officers. Viewed in the light most favorable to the trial court’s

findings, the evidence shows that in July 2012, Officer Jerry Jackson was on patrol

3

(Citations and punctuation omitted.) Brown v. State, 293 Ga. 787, 802-803

(3) (b) (2) (750 SE2d 148) (2013), quoting Miller v. State, 288 Ga. 286, 286-287 (702

SE2d 888) (2010).

4

Jones v. State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012), citing Vansant

v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

2
with passenger Officer John Cash in a marked police cruiser on an interstate when

Jackson observed a recreational vehicle (“RV”) towing a trailer cross the white line

on the right side of the roadway. As Jackson followed the RV, he observed it cross

the white line two separate times, “almost taking out a construction barrel at one

point.” Based on the RV’s erratic driving, Jackson initiated a traffic stop.

As Jackson approached the RV, the driver, Lewis, placed his empty hands out

the driver’s window. Jackson spoke to Lewis through the passenger door, due to the

heavy highway traffic, and Lewis explained that he had been checking a voice mail

on his cell phone, which caused him to weave out of his lane. Jackson requested

Lewis’s driver’s license, which Lewis provided, and asked Lewis for the RV’s

registration. Lewis explained that he would have to look for it somewhere inside the

RV, and Jackson asked Lewis if he could come inside with him while Lewis looked

for the paperwork; Lewis declined. The two officers waited outside, while Lewis

located the paperwork. At the officers’request, Lewisthen joined the officers outside

the RV and provided the officers with the registration, and Jackson explained that he

was going to write Lewis a warning for failure to maintain hislane. Jackson requested

consent to pat down Lewis before he wrote up the warning, which consent Lewis

gave, and the pat-down revealed no weapons or contraband.

3
After informing Lewis that he would receive a warning, Jackson requested

consent to search the RV, which Lewis denied. Jackson then immediately gave the

warning slip to Officer Cash to continue filling out while Jackson retrieved his

narcotics dog out of the cruiser. At this point, the written warning had not been

completed, and police dispatch had not returned its check of Lewis’s license

information, which Jackson had requested earlier via radio. As those processes

continued, Jackson conducted a free-air search of the RV with the dog, which

“alerted” on the trailer and the passenger door of the RV, indicating that he had

detected an odor of narcotics. Jackson returned the dog to the cruiser and explained

to Lewis that he would be searching the RV. At that point, Lewis confessed that he

had a small amount of marijuana under the front seat and a pistol because he carried

large amounts of cash from his antler carving business. A search of the RV revealed

a small quantity of marijuana under the front seat and in two other locations in the

RV, as well as a small smoking pipe. No contraband was found in the trailer. 

Based on the contraband found in the RV, Lewis was arrested and charged with

possession of the marijuana and the smoking pipe. He moved to suppress the

evidence obtained during the search, and the trial court held a hearing. Based on the

evidence at the hearing, the trial court found that the dog’s free-air search was

4
conducted during the process of writing the warning and checking Lewis’s driver’s

license information – all of which took place within eight minutes of the time Jackson

activated his blue lights to initiate the traffic stop. Based on these findings, the court

concluded that the traffic stop was not impermissibly prolonged, and the search of the

RV was authorized by the suspicion aroused by the trained narcotics dog’s behavior. 

Thereafter, the court found Lewis guilty in a bench trial, and Lewis now

appeals the denial of his motion for new trial, challenging the denial of his motion to

suppress.

1. Lewis argues that the trial court erred by denying his motion to suppress

because the officers unreasonably prolonged the traffic stop prior to executing the

free-air search with the narcotics dog. We disagree.

Lewis does not contest the fact that the initial traffic stop was justified by the

officer’s observation that Lewis was failing to maintain his lane, which is a traffic

violation.

5

 As recently explained by the United States Supreme Court in Rodriguez

v. United States,

6

5 See OCGA § 40-6-48 (1); Camacho v. State, 292 Ga. App. 120, 122 (663

SE2d 364) (2008) (“[n]umerous cases have held that weaving out of one’s lane

justifies a stop”).

6 Rodriguez v. United States, __ U. S. __ (__ SCt __, 191 LE2d 492) (2015).

5
[a] seizure for a traffic violation justifies a police investigation of that

violation. A relatively brief encounter, a routine traffic stop is more

analogous to a so-called “Terry

7

stop” than to a formal arrest. 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.

Because addressing the infraction is the purpose of the stop, it may last

no longer than is necessary to effectuate that purpose. Authority for the

seizure thus ends when tasks tied to the traffic infraction are—or

reasonably should have been—completed. . . 

[A] traffic stop can become unlawful if it is prolonged beyond the

time reasonably required to complete the “mission” of issuing a warning

ticket. . . . The seizure remainslawful only so long as unrelated inquiries

do not measurably extend the duration of the stop. An officer, in other

words, may conduct certain unrelated checks during an otherwise lawful

traffic stop. But he may not do so in a way that prolongs the stop, absent

the reasonable suspicion ordinarily demanded to justify detaining an

individual.

Beyond determining whether to issue a traffic ticket, an officer’s

mission includes ordinary inquiriesincident to the traffic stop. Typically

such inquiries involve checking the driver’s license, determining

whether there are outstanding warrants against the driver, and inspecting

the automobile’s registration and proof of insurance. These checksserve

7 Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LEd 2d 889) (1968).

6
the same objective as enforcement of the traffic code: ensuring that

vehicles on the road are operated safely and responsibly.

A dog sniff, by contrast, is a measure aimed at detecting evidence

of ordinary criminal wrongdoing. [Thus,] a dog sniff, unlike the routine

measures just mentioned, is not an ordinary incident of a traffic stop.

Lacking the same close connection to roadway safety as the ordinary

inquiries, a dog sniff is not fairly characterized as part of the officer’s

traffic mission.

8

Here, the record shows that the dog sniff did not unreasonably prolong the

traffic stop because it was conducted before completion of the traffic stop, and it did

not hinder the officers’ timely completion of the mission of the traffic stop. The dog

sniff wasinitiated by one officer while a second officer finished filling out the written

warning and while the officers waited for dispatch to return the check on Lewis’s

driver’s license information. The dog sniff was initiated within six minutes of the

moment the officers first made contact with Lewis on the roadside, and it was

completed fewer than ninety seconds later. The license check was an “ordinary

inquir[y] incident to the traffic stop,” and it “serve[d] the same objective as

8

 (Citations and punctuation omitted.) Rodriguez, __ U. S. at __ (II).

7
enforcement of the traffic code.”9 Consistent with the holding in Rodriguez, “our law

is . . . clear that it is permissible to conduct an open air search around a vehicle while

a traffic stop is still in progress so long as the stop has not been unreasonably

prolonged for the purpose of conducting the search.”10 Based on the evidence that the

dog sniff occurred during the ordinary course of the traffic stop and did not

unreasonably prolong the process of the traffic stop, the trial court did not err by

finding it permissible. And in light of the behavior of the trained narcotics dog during

his free-air sniff, the officers’ search of the RV was authorized.

11

2. Lewis also argues that the trial court clearly erred by relying on allegedly

false testimony by Jackson during the suppression hearing when the video recording

of the traffic stop was proffered for admission by the State. Lewis points out that the

officer initially testified that he had last seen the video, which is one hour and forty9

(Punctuation omitted.) Id. at __. See also St. Fleur v. State, 296 Ga. App. 849,

851-852 (1) (676 SE2d 243) (2009) (“[A] law enforcement officer conducting a

routine traffic stop may request and examine a driver’s license and check for

outstanding warrants[;] and questioning the driver or engaging in small talk while

verifying the items mentioned above is not a seizure unlessthe detention is prolonged

by the questioning.”) (punctuation and footnote omitted).

10

 (Punctuation omitted.) St. Fleur, 296 Ga. App. at 852 (1).

11 See id. at 853 (2), citing Davidson v. State, 257 Ga. App. 260, 264 (1) (570

SE2d 698) (2002) .

8
four minutes in total length, earlier that morning at “nine forty-five, ten o’clock.”

Based on the officer’s appearance in court, Lewis argues that it was physically

impossible for the officer to have seen the entire video that morning at that time.

Therefore, he argues, the officer’s testimony was false, and the trial court clearly

erred by relying on it elsewhere when the officer described the traffic stop.

12

Nevertheless, this argument ignores the fact that the material portion of the

video – from the time the officer observed Lewis swerving to the time Lewis was

arrested – is less than 19 minutes long. Therefore, the officer could have truthfully

answered that he lastsaw the portion of video relevant to the suppression hearing that

morning, and when given the opportunity, he clarified his testimony that he had not

watched the entire video that morning. In light of this record, there was no clear error

by the trial court in relying on the officer’slater description of the traffic stop, and the

trial court’sfindings are consistent with the video of the traffic stop, which we review

de novo.

13

 Accordingly, this enumeration is without merit.

12 The transcript shows that after Lewis objected to the officer’s ability to

authenticate the video, the trial court recessed the proceedings for lunch and allowed

the officer time to view the entire video, and the officer did so. 

13 See State v. Mohammed, 304 Ga. App. 230, 231-232 (695 SE2d 721) (2010)

(facts plainly discernible from a video are reviewed de novo)

9
Judgment affirmed. Phipps, C. J., and Boggs, J., concur.

10