MONTERO v. THE STATE, 245 Ga. App. 181

Blackburn, Presiding Judge. On interlocutory grant, Angel Samuel Montero appeals the trial court’s denial of his motion to suppress evidence of marijuana found in a closed container in the trunk of his car following a routine traffic stop for tinted windows. Because this case is controlled by DiSanti v. State, not Boggs v. State, we find that the officer who stopped Montero’s vehicle had no probable cause to detain Montero while he obtained the services of a drug dog to investigate the sealed package in the trunk for which Montero had withdrawn consent to search. Accordingly, we reverse.

In DiSanti, supra, the defendant was initially stopped for speeding. After the officer issued a warning, he asked the defendant if he could search his car, and DiSanti consented. The officer found a package wrapped in birthday paper in the trunk of the car. DiSanti explained that the package was a gift for his daughter. The officer then told DiSanti that he believed the package contained cocaine and asked if he could open it. DiSanti refused to let the officer open the package. The officer told DiSanti he was going to detain him until a drug dog arrived on the scene.

When the drug dog arrived an hour later, cocaine was found in the package. Reversing the trial court’s denial of the defendant’s motion to suppress, we held: It is recognized that no “bright line” rule or “rigid time limitations” can be imposed in determining whether detention of a person constitutes a mere investigative stop requiring only an articulable suspicion or an arrest requiring the existence of probable cause at its inception. United States v. Sharpe, 470 U. S. 675, 685 (105 SC 1568, 84 LE2d 605) [(1985)]; United States v. Hardy, 855 F2d 753, 759 (11th Cir. 1988).

Nevertheless, this court recently has held that it would stretch the imagination to say that a 30-minute detention was justifiable, under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) [(1968)], when the officer waited for the arrival of a drug dog and magistrate and the defendant was not free to leave. Schmidt v. State, 188 Ga. App. 85, 87 (372 SE2d 440) [(1988)]. DiSanti, supra at 334 (1). In stark contrast to DiSanti is Boggs, supra. In Boggs, the defendant consented not only to the initial search of the car by the officer but also to a subsequent search by a drug dog.

Thus, in Boggs, unlike DiSanti, the drug dog search and the detention therefore were consensual. We note that Boggs did not raise the issue of the propriety of a police officer detaining a defendant to seek permission to search his vehicle after the investigation for which the stop was made has been concluded. Therefore, this issue and its factual variants were not addressed in that case. Montero does not raise that issue here, and therefore, it is not before us in this case.

We note, however, that police officers are not generally free to detain private citizens without probable cause where an investigatory stop has been concluded without charges, and the detained citizen is free to go, without further interference or detention by the police officer. See Terry v. Ohio. On appellate review of a motion to suppress, the trial court’s findings as to disputed facts are accepted by the appellate court, unless clearly erroneous.

However, where the evidence is undisputed and there is no question regarding the credibility of witnesses, the trial court’s application of law to those undisputed facts is subject to de novo review. Vansant v. State. In this case, the relevant facts are undisputed, so we conduct a de novo review. The facts of the present case are similar to DiSanti, not Boggs. At 1:25 p.m. on November 4, 1997, Montero was driving his car on Interstate 20 in Columbia County when he was stopped by Officer Flury of the Georgia State Patrol. Flury testified that he suspected that the car windows were too darkly tinted.

Flury did not cite Montero for a violation following his investigation of the tinted windows but gave Montero a warning for the window tint and returned his license, thereby terminating the purpose and scope of the original stop. At this point, Montero was free to go, and Officer Flury had no authority to stop or detain him, absent probable cause arising from occurrences since the termination of the concluded investigation, or new facts related thereto. However, Officer Flury then detained Montero, interrogated him further, and asked him if he could search the car and its contents.

When asked why he made this request, Flury testified that, in general, drugs were being transported down I-20 and the State Patrol had been conducting searches of cars stopped by them. Flury had no probable cause or reasonable and articulable suspicion that Montero was transporting contraband at that time. To the contrary, the reasoning behind the request to search, as testified to by Officer Flury, was to carry on a general plan to search the cars of private citizens when they are stopped by police officers for unrelated reasons, in an attempt to interdict the transportation of drugs.

While the interdiction of the flow of drugs is an admirable goal, the State is not free to ignore constitutional safeguards in order to accomplish it, and neither is this Court. After obtaining Montero’s consent, Flury searched the passenger compartment of the car and found no contraband. He then searched the trunk, where he found a large brown cardboard box which was taped shut.

Officer Flury testified that Montero began acting nervously and withdrew his consent to search the box. “When we got to that [box], he said we couldn’t search that.” At that point, Flury had completed his search of Montero’s car, but he would not let Montero leave because he wanted to search the taped box as well.

Flury stated, “We came up on an object that was — that he would not allow us to search, and I wanted to go further with the K-9.” Therefore, approximately 35 minutes after the initial stop for tinted windows began, Flury contacted an officer with the police K-9 unit who arrived approximately 20 minutes later. Almost an hour after Montero had been stopped for tinted windows, the drug dog indicated the presence of marijuana in the sealed box found in the trunk of Montero’s car.

Montero does not dispute the validity of the initial stop of his car, notwithstanding the fact that there is no conclusive evidence in the record that his car windows were, in fact, too darkly tinted at the time of the stop. However, Montero argues that the scope of the initial stop was exceeded, he withdrew his consent to search the box in his trunk, and he was thereafter unlawfully detained. We agree. Lacking even articulable suspicion, Flury arrested Montero without probable cause.

Flury gave Montero a Hobson’s choice of either staying with his car until the K-9 unit arrived or being stranded on the interstate. Montero was thus no longer free to leave, and his detention, under these facts, “is not authorized by Terry v. Ohio, is thus an arrest, and must therefore be supported by probable cause at its inception to be legal.” Milan v. State Flury’s only reasons for holding Montero were his nervousness, his own desire to search the box in Montero’s trunk, and the fact that, in general, contraband was being transported down 1-20.

Many people show signs of nervousness during police encounters, and this Court has held that nervousness does not provide reasonable suspicion of criminal behavior as a matter of law. See State v. Kwiatkowski. Montero was as free to withdraw his consent to search his car in connection with the sealed box, as he was not to give such consent in the first place, and he had validly done so. See DiSanti, supra; Davidson v. State (“Once a voluntary consent is legally obtained, it continues until it is either revoked or withdrawn.”).

Citing Boggs, supra, the State argues that, although Montero refused permission to search the box, he did not withdraw consent to search the car and that the drug dog was called in to complete the search of the car. The testimony of Officer Flury, however, repudiates that argument and establishes that the search by the K-9 unit was prompted by Montero’s withdrawal of consent to search. Officer Flury testified that he had already completed a search of the passenger compartment and trunk of the car; he wanted to search the box.

He further testified that he called for the K-9 unit specifically to search the sealed box, “He didn’t want us to touch the box. He didn’t want us to open the box, and that’s when I called for a K-9 unit.” He was asked, “At that time, you asked permission [to search the box] and he said no and that’s when you decided to call the dog; is that correct, sir?” Flury responded, “Yes, sir. . . . [H]e would not allow us to search [the box], and I wanted to go further with the K-9.” Under the above facts and law, Officer Flury had no authority to “go further with the K-9” at that point.

The search of the car in this case was over long before a drug dog was called. And Montero, in direct violation of his Fourth Amendment rights, was detained by Officer Flury, who had no probable cause, while he called in a drug dog. Also, Officer Flury’s knowledge that drugs were being transported down I-20 provided no basis whatsoever to establish probable cause as to Montero.

Therefore, even viewing the totality of the circumstances, as the State urges us to do, the tinted windows, nervousness, and a withdrawal of a consent to a search are not sufficient to establish a reasonable suspicion of criminal conduct which would authorize additional investigation or the probable cause necessary to arrest Montero. The tinted windows hid nothing and provided no support for the State’s position.

Nervousness is not sufficient to authorize the detention, and Montero had withdrawn his consent to search the car in connection with the sealed box, and the search of the remainder of the car had been completed. There was no basis to detain Montero, and the illegal arrest tainted the subsequent search. See Payne v. State. The trial court erred by denying Montero’s motion to suppress. Judgment reversed. Barnes, Phipps and Mikell, JJ, concur. Johnson, C. J., Pope, P. J., and Eldridge, J., dissent. DiSanti v. State, 190 Ga. App. 331 (378 SE2d 729) (1989). Boggs v. State, 194 Ga. App. 264 (390 SE2d 423) (1990).

Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). (Citation omitted.) Milan v. State, 228 Ga. App. 310, 311 (491 SE2d 401) (1997). State v. Kwiatkowski, 238 Ga. App. 390, 393 (519 SE2d 43) (1999). Davidson v. State, 237 Ga. App. 870, 872 (516 SE2d 550) (1999). Payne v. State, 244 Ga. App. 734 (536 SE2d 791) (2000).