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State v. Gibbons3/30/2001
. State.
Further, an appellate court's subjective interpretation of the contents of questioning is open to wildly variant results, as illustrated in this case where the majority states, "Rather than ticket Stinemetz or release him, the officer decided to conduct a drug investigation." However, as noted by the trial court, the officer in this case undisputedly asked no questions about drugs, but asked questions about "itinerary, destination, passenger, and activities." All of these general investigative questions have been considered lawful in previous opinions of this Court. See fn. 13 supra. To interpret such questions now as a "drug investigation" is pure speculation as to the officer's subjective intent in asking the lawful questions - - when it is well established that an officer's subjective intent during lawful questioning plays no role in Fourth Amendment analysis: "We . . . foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved."
I also submit that to apply Knowles v. Iowa to the instant case of brief investigative questioning, as urged by the majority, is to twist the frame of the Fourth Amendment even further. I candidly cannot fathom how a less than five-minute period of general investigative questioning prior to the issuance of a traffic ticket can be analogized to the full blown automobile search invalidated in Knowles. Surely a result should be authorized by how it is reached.
"The touchstone of the Fourth Amendment is reasonableness. Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances." To that end the law does not, I think, champion our holding in Smith v. State that the Fourth Amendment requires police officers to have the same "articulable suspicion" necessary to support a traffic stop in order to simply question an already validly stopped driver about matters reasonably related to traffic law enforcement, when such questioning does not "unreasonably prolong" a valid detention.
While this Court has always been rightly sensitive to the danger that an officer will enlarge upon his authority to conduct a Terry-type search and seizure, our Fourth Amendment vigilance cannot permit us the equally offensive course of improperly expanding search and seizure law, thereby denying the people of Georgia the modicum of protection achieved through an officer's ability to investigate and enforce the law within the parameters of the constitution. Likewise, we cannot ask police officers to continue to stand the wall between the law-abiding and the lawless, if we are going to unjustifiably dismantle it brick by brick.
The trial court's determination that a Terry violation resulted when the officer asked questions unrelated to the seatbelt violation is error as a matter of law. To the extent that our decision in Smith v. State supports the trial court's erroneous determination, it should be overruled. The judgment below should be reversed.
2. The bottle containing the residue of cocaine was found pursuant to a consensual search. No factual findings were made by the trial court with regard to this issue. Accordingly, this case should be remanded for further findings of fact as to the issue of consent with a right of further appeal.
I am authorized to state that Judge Mikell joins in this dissent.
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