COLE v. THE STATE, 254 Ga. App. 424

Andrews, Presiding Judge. Jason Neil Cole was found guilty of possessing methamphetamine and marijuana found during a search of his car conducted by police after he was stopped for a traffic offense. He appeals claiming the search was illegal and that the trial court erred by denying his motion to suppress the search results. Because we conclude the traffic stop and detention were legal and that Cole voluntarily consented to the search, we affirm. The following testimony was given at a hearing before the trial court on Cole’s suppression motion.

After stopping Cole for failure to properly maintain his lane, Officer Smith noticed the smell of marijuana coming from the interior of Cole’s car. He observed that Cole was shaking, acting nervous, and had watery, bloodshot eyes. When the officer told Cole he smelled marijuana, Cole became even more nervous and agitated. Based on these observations, the officer suspected Cole might be under the influence of marijuana and asked him to step out of the car so he could observe him on his feet.

The officer stated that Cole appeared steady on his feet and that, other than bloodshot eyes, he appeared to be “okay.” Still suspecting there might be marijuana in the car, the officer asked Cole for consent to search the car.

When Cole refused to give consent, the officer asked for consent a second time telling Cole, “[t]his will only take five minutes to satisfy my suspicions of smelling the odor of marijuana, you’re telling me nothing is in the vehicle, then why do you have a problem with me searching it.” When asked if he then told Cole he could go get a drug dog to come out and sniff the car, the officer testified that he could not recall whether or not he made that statement to Cole, that it was possible he did so, but he did not write down in his report that he did so.

The officer further testified that, although he believed Cole was free to leave after he refused the first request for consent to search, Cole consented when he asked the second time. The methamphetamine and marijuana were found under the driver’s seat of the car during the search. 1. Cole does not challenge Officer Smith’s authority to stop him for the traffic offense, but claims the detention and investigation that led to the search were unwarranted. There is no merit to this claim.

When the officer smelled marijuana and observed Cole’s appearance and demeanor, he had reasonable, articulable suspicion under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), to detain Cole to investigate whether he was driving under the influence of marijuana or was in possession of marijuana. 2. Similarly, there is no merit to claims that the search was involuntary because the officer told Cole he could go get a drug dog or that the search was the product of an illegal detention because the officer believed Cole was free to leave after he initially refused to consent to the search.

In ruling that Cole’s consent to the search was voluntary, the trial court found no basis for the claim that the officer made a statement to Cole about getting a drug dog to coerce the consent. The trial court noted that Officer Smith testified he could not recall telling Cole he could get a drug dog and that this testimony was supported by the fact that the officer did not write in his police report that he made any such comment.

Based on this evidence, the trial court concluded that “no affirmative testimony by Smith or statements in Smith’s police report support [the claim] that Smith threatened Defendant with a drug dog ... if Defendant did not consent.” Cole did not testify at the hearing, and he never said that the officer made any statement to him about a drug dog. Accordingly, the only evidence before the trial court about the alleged drug dog statement was the officer’s testimony that he could not recall making such a statement, but it was possible he did so.

Although the State had the burden of proving that the consent to search was voluntary, it was not necessary for the State to produce additional evidence affirmatively disproving the possibility that the officer might have made the statement about a drug dog. Rather, the State could simply argue that the statement was not made, and it was up to the trial court to consider the weight to be given the possibility that it was made. See Anderson v.

State, 247 Ga. 397, 399 (276 SE2d 603) (1981). “On appeal of a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Sprauve v. State, 229 Ga. App. 478, 479 (1) (494 SE2d 294) (1997). Applying these principles, the evidence supports the trial court’s finding that the officer made no statement about getting a drug dog.

Moreover, even if the officer did tell Cole that he could get a drug dog if he did not consent to the search, this did not constitute coercion that rendered the consent involuntary. The fact that the officer detected the smell of marijuana coming from the interior of the car was sufficient to create a reasonable suspicion that Cole had marijuana in the car. State of Ga. v. Montford, 217 Ga. App. 339, 340-341 (457 SE2d 229) (1995). At a minimum, this suspicion justified the officer’s detention of Cole under Terry v. Ohio, 392 U.

S. 1, to investigate the possible criminal activity and would have justified the officer’s use of a drug dog within the scope of that investigation to sniff around the exterior of the car to see whether the dog detected illegal drugs. Montford, 217 Ga. App. at 341. Having a trained dog sniff the exterior of a car is not a search within the meaning of the Fourth Amendment of the United States Constitution or Art. I, Sec. I, Par. XIII of the Georgia Constitution. Id. at 341.

It follows that, even if the officer asserted he could get a drug dog, this was not an attempt to coerce consent by claiming he had lawful authority to search the car if Cole refused to consent. Compare Bumper v. North Carolina, 391 U. S. 543, 549-550 (88 SC 1788, 20 LE2d 797) (1968) (consent to search given in acquiescence to a claim of lawful authority is not considered voluntary).

Furthermore, the fact that the officer testified at the suppression hearing that he thought Cole was “free to leave” after he refused the officer’s first request for consent to search does not establish that any continued detention was illegal. The officer’s subjective belief that he lacked authority to detain Cole for continued investigation does not control where the facts objectively show the officer had such authority. Farmer v. State, 156 Ga.

App. 837, 839 (275 SE2d 774) (1980). “Because we decide whether reasonable suspicion justifies a detention based on all the objective facts, we are not limited by the detaining officer’s subjective opinions.” United States v. Jones, 990 F2d 405, 408 (8th Cir. 1993), cert. denied, Jones v. United States, 510 U. S. 934 (114 SC 350, 126 LE2d 314) (1993).

The objective facts established reasonable suspicion that there was marijuana in the car and justified Cole’s continued detention regardless of the officer’s subsequent testimony that he considered Cole “free to leave.” Accordingly, the officer’s continued investigation during which he eventually obtained Cole’s voluntary consent to search was lawful. Cole’s consent to the search was voluntary, and the trial court correctly denied the motion to suppress the methamphetamine and marijuana found in the search. Judgment affirmed. Johnson, P. J, Ruffin and Ellington, JJ., concur.

Eldridge, Miller and Phipps, JJ., dissent.