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State v. Long7/29/1999
In the Court of Appeals of Georgia
EL-063C
The State appeals from a Houston County State Court order granting Nathan Baxter Long's motion to suppress the results of his urine test which showed positive for the presence of marijuana.
On June 20, 1997, Houston County Deputy J. Sendek and his partner, Deputy Quinones, were stationed at the intersections of Kersey and Hodge Roads in Houston County. Drugs sales had been reported in this rural area, and Sendek was a trained narcotics officer. At approximately 8:00 p.m., Sendek stopped Nathan Long for weaving down Hodge Road. The stop was captured on video tape.
Initially, Deputy Sendek asked Long to exit the car and walk to the back of the vehicle in view of the video camera. At the hearing on the motion to suppress, Sendek testified that Long smelled strongly of marijuana; that his eyes were red and glassy; and that Long was nervous, perspiring, and trembling. After determining that Long and his passenger, Clinton Payne, were "just out riding," Deputy Sendek went to the passenger window to interview Payne. At the motion hearing, Sendek testified that when Payne rolled down the window, "I could smell a strong odor of burnt marijuana almost smelling like it was smoldering and burning inside the vehicle."
The evidence shows that Deputy Sendek then returned to the back of the vehicle to continue his interview with Long. He obtained Long's driver's license and insurance card and informed Long that if a driver's license check showed no violations, he would issue Long a warning for failure to maintain a lane. Long waited in his car while Sendek performed the driver's license check.
During the course of the license check, Deputy Quinones approached Long's vehicle and, through the driver's window, engaged both Long and Payne in conversation which was not picked up by the audio feature of the video camera. However, when Quinones returned to the police vehicle, his subsequent conversation with Sendek showed that both deputies recognized that Long's passenger, Clinton Payne, had been arrested several days earlier for marijuana; that Long's eyes were extremely red and "all washed out"; that both Long and Payne "were scared to death"; and that the officers were "fixin to ask them if [they could] search the vehicle." No mention was made of the odor of marijuana about which Deputy Sendek testified at the motion hearing.
Long's driver's licence check showed no violations. Sendek exited his police vehicle and asked Long to re-join him at the back of Long's car. He issued Long a warning and a short lecture on the dangers of failing to maintain a lane. At the Conclusion thereof, Sendek stated, "Let me ask you something before you go on . . . " Sendek then informed Long that, as a part of his job, he investigates and searches for contraband. Sendek explained that he considered contraband items like weapons and drugs. Sendek asked Long for permission to search the vehicle. As specific reasons for the search, Sendek told Long that Long's eyes were red, his face was red, and he was present in a high drug crime area. No mention was made of the odor of marijuana about which Deputy Sendek testified at the motion hearing.
In response to Sendek's request to search, Long stated "I don't really want you to, but there's nothing in there." Deputy Sendek interpreted this answer as a qualified acquiescence to the search. At the motion hearing, Sendek testified that if Long had refused, and " f he had turned around and walked away, I probably would have stopped him and talked to him about the marijuana." Deputies Sendek and Quinones then proceeded to search Long's car. Under the passenger seat, the
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