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Cotton v. State3/5/1999
In the Court of Appeals of Georgia
Mc-080C
Defendant Cotton appeals his conviction of the offenses of trafficking in cocaine, possession of marijuana with intent to distribute, driving under the influence of drugs, and following too closely. The sole enumeration of error maintains that the trial court erred by failing to suppress and exclude from admission at trial ". . . evidence that was seized in violation of the Fourth and Fifth Amendments to the United States Constitution and the correlative provisions of the 1983 Constitution of the State of Georgia." Held:
"A Georgia State Patrol Trooper on patrol on I-85 in Jackson County was contacted via citizens band radio and told of a motorist in a Honda who ". . . was smoking a joint." The officer proceeded to overtake the described vehicle and found it approximately five feet behind a truck traveling on the interstate highway. A traffic stop was initiated and the Honda pulled over. The trooper exited his vehicle and approached the Honda. When defendant rolled down his window, the trooper immediately noticed a strong odor of marijuana and could see smoke. Defendant complied with the trooper's request that he step out of the vehicle and produce his driver's license and proof of insurance. The trooper told defendant that he had pulled him over because he had been reported to have been smoking a joint in the vehicle on the road and because he was following the truck very closely. Defendant denied smoking marijuana, denied possession of contraband, and denied consent to search the vehicle. The trooper asked defendant to sit in the rear seat of his patrol car, but first patted him down and asked him to empty his pockets, revealing that defendant had approximately $2100.00 in his pocket. The trooper informed defendant that he was going to call a drug dog whereupon defendant told the trooper that " here's a little in a bag in the back seat . . ." and consented to a search of his vehicle. The search of the car revealed cocaine, marijuana, and an additional approximately $4000 of currency."
The stop of defendant's vehicle was authorized by the trooper's observation of the traffic offense of following too close. While the trooper acknowledged that he would not have stopped defendant but for the tip that defendant had been smoking a joint, and defendant has argued that the basis for the stop was pretextual, an officer's ulterior motive is of no consequence under the holding in Whren v. United States, 517 U. S. 806 (116 SC 1769, 135 LE2d 89). Since the officer had observed defendant violate a traffic law, the stop did not violate the Fourth Amendment or the Georgia Constitution. State v. Kirbabas, 232 Ga. App. 474, 480-481 (502 SE2d 314). See also Welborn v. State, 232 Ga. App. 837, 839 (2) (503 SE2d 85); State v. Bowen, 231 Ga. App. 95 (498 SE2d 570); Taylor v. State, 230 Ga. App. 749, 750 (1b) (498 SE2d 113); Buffington v. State, 229 Ga. App. 450, 451 (494 SE2d 272).
The application of Whren, which was decided subsequent to the events at issue in this case, does not result in any violation of ex post facto constitutional provisions. As Whren did not result from a change or unforeseeable judicial enlargement of a criminal statute the ex post facto provision is inapplicable. Moore v. Ray, 269 Ga. 457 (499 SE2d 636); Lloyd v. State, 226 Ga. App. 401, 403 (5) (487 SE2d 44).
After stopping defendant's car, the tip received by the trooper concerning illegal drug use was corroborated by the odor of marijuana coming from defendant's car. This provided a reasonable basis for the trooper's suspicions that marijuana was present in the car and that defendant was driving under the influence of marijuana. Taylor v.
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