                             SECOND DIVISION
                               MILLER, P. J.,
                          DOYLE, P. J., and REESE, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    January 26, 2018




In the Court of Appeals of Georgia
 A17A1978. THE STATE v. HERMAN.

      MILLER, Presiding Judge.

      Tammy Herman was charged with four drug-related offenses after police found

a bottle of pills in her purse during a traffic stop. She moved to suppress the evidence,

arguing that the traffic stop leading to her arrest was prolonged unconstitutionally to

enable an open-air dog sniff. The trial court granted the motion, and the State now

appeals. We conclude that the K-9 sniff did not prolong the stop, and, therefore, we

reverse the trial court’s order granting the motion to suppress.

      The burden is on the State to prove the legality of a search and seizure. State

v. Haddock, 235 Ga. App. 726, 728 (510 SE2d 561) (1998); see also OCGA § 17-5-

30 (b). Generally, in reviewing the grant of a motion to suppress, we “construe the

evidence most favorably to uphold the findings and judgment of the trial court, and
that court’s findings as to disputed facts and credibility must be adopted unless

clearly erroneous.” (Citation omitted.) Watts v. State, 334 Ga. App. 770, 771 (780

SE2d 431) (2015). However, “where, as here, the facts are not in dispute and no

findings were made by the trial court, the appellate court owes no deference to the

trial court’s ruling and the standard of review is de novo.” State v. Palmer, 285 Ga.

75, 79 (673 SE2d 237) (2009). Given that Herman presented no evidence repudiating

the officer’s testimony, and the trial court made no factual findings, we owe no

deference to the trial court’s order.

      So viewed, the evidence shows that an officer with the Bulloch County

Sheriff’s Department observed a car in which Herman was a passenger. The driver

seemed surprised when he spotted the officer, which drew the officer’s attention and

made him suspicious. The officer followed the car and eventually conducted a traffic

stop after observing that the temporary license tag was unreadable and the license tag

light was not working.

      The officer took the driver’s license and returned to his patrol car to conduct

a license check. Either during the time he walked toward the car he pulled over, or as

he walked back to his patrol car, the officer contacted his partner, who was a K-9

handler. The K-9 handler arrived within three to four minutes and the K-9 conducted

                                          2
an open-air sniff while the investigating officer was still checking the license. While

in the patrol car, the officer noticed the driver and passenger making furtive

movements in the car, as if trying to conceal something. The K-9 alerted to

contraband in the car.

      As a result of the license check, the officer learned that the driver held a

restricted permit, allowing him to drive only to and from school, work, or medical

appointments. The driver admitted when he was pulled over that he was on a date and

had left a restaurant, which was not a permissible use of the license.

      The officer arrested the driver and, based on the K-9’s alert, the officer initiated

a search of the car. The search uncovered a partially-smoked marijuana cigarette,

which the driver admitted belonged to him. The officer also found Herman’s open

purse on the floor of the passenger side of the car. A bottle of pills was visible on the

top of the open purse.1 Herman stated that she had undergone surgery, but that the

pills were old and she no longer used them. The multiple pills were not in their

original containers, and the officer arrested Herman.



      1
       The pills found in the bottle were hydroxyzine, a generic antihistimine, and
Zolpidem, a generic form of the sleep aid Ambien. See www.drugs.com/hydroxyzine
and www.drugs.com/zolpidem.

                                           3
      Herman moved to suppress the evidence, arguing that she was unlawfully

detained and her detention was unconstitutionally prolonged. She further asserted that

the officer lacked probable cause to search her purse without a warrant or her consent.

In its order granting the motion to suppress, the trial court stated:

      Pending before this Court [are] Defendant’s Motions to Suppress. A
      hearing was held on November 3, 2016. Now, having considered the
      argument of counsel, the evidence adduced at the hearing, and the
      applicable law, the Court hereby GRANTS the Defendant’s Motion to
      Suppress.


This appeal followed.

      In its sole enumeration of error, the State argues that the initial stop was valid,

the officer’s observations gave rise to reasonable suspicion, and the K-9 sniff did not

unconstitutionally prolong the stop. We agree.

      It is undisputed that police may conduct a traffic stop upon probable cause to

believe that a traffic violation occurred without running afoul of the Fourth

Amendment’s protection from unreasonable seizures. Morgan v. State, 309 Ga. App.

740, 742 (710 SE2d 922) (2011). Nevertheless,

      a seizure that is lawful at its inception can violate the Fourth
      Amendment if its manner of execution unreasonably infringes interests
      protected by the Constitution. A seizure that is justified solely by the

                                           4
      interest in issuing a [traffic] ticket to the driver can become unlawful if
      it is prolonged beyond the time reasonably required to complete that
      mission. Thus, the tolerable duration of police inquiries in the
      traffic-stop context is determined by the seizure’s mission—to address
      the traffic violation that warranted the stop, and attend to related safety
      concerns.


(Citations, punctuation, and footnote omitted.) State v. Allen, 298 Ga. 1, 4-5 (2) (a)

(779 SE2d 248) (2015). Conducting an open-air dog sniff around a vehicle during a

traffic stop does not itself violate the Fourth Amendment. See id. at 5 (2) (a). Rather,

the relevant question is whether the open-air dog sniff prolonged the stop for any

amount of time. Id. If it did not, the open-air dog sniff was lawful. See id.; see also

Rodriguez v. United States, ––– US –––– (135 SCt 1609, 1614-1616 (II), 191 LE2d

492) (2015) (“Beyond determining whether to issue a traffic ticket, an officer’s

mission includes ordinary inquiries incident to [the traffic] stop . . . . A dog sniff, by

contrast, is a measure aimed at detecting evidence of ordinary criminal wrongdoing.

. . . and is not fairly characterized as part of the officer’s traffic mission . . . .The

critical question, then, is . . . whether conducting the sniff ‘prolongs’—i.e., adds time

to—the stop.”) (citations and punctuation omitted). Accordingly, in this case, we

must determine whether the open-air dog sniff “was done while some other task


                                            5
related to the mission of the traffic stop was still being conducted, so that the sniff did

not add any time to the stop.” Allen, supra, 298 Ga. at 5 (2) (a).

       The undisputed evidence here shows that police did not prolong the traffic stop

in order to conduct the open-air dog sniff. After observing that the car had an

unreadable temporary license tag and that the license tag light was not working, both

of which are traffic violations, the officer initiated the stop. Allen, supra, 298 Ga. at

6 (2) (b). Before he began the computer check of the driver’s license, the officer

contacted the K-9 handler. The K-9 unit arrived within three to four minutes, and the

handler conducted the open-air sniff while the officer was still checking the driver’s

license.

       The law is clear that checking a driver’s license is part of the mission of a

traffic stop. Allen, supra, 298 Ga. at 6 (2) (b). Thus, the undisputed evidence shows

that the open-air dog sniff occurred while the officer conducted the mission of the

traffic stop, and it did not prolong the traffic stop at all. As a result, the open-air dog

sniff did not violate the Fourth Amendment. Allen, supra, 298 Ga. at 4-5 (2) (a).




                                            6
      Given these facts, the stop and Herman’s subsequent detention were lawful.2

We therefore reverse the trial court’s order granting Herman’s motion to suppress,

and remand the case for further proceedings.

      Judgment reversed and case remanded. Doyle, P. J., and Reese, J., concur.




      2
         We note that, in her written motion to suppress, Herman argued that the
search of her purse was unlawful. At the suppression hearing, however, she presented
no evidence on this issue and made no argument as to the lawfulness of that search.
She therefore abandoned that issue. Owens v. State, 308 Ga. App. 374, 380 (3) (707
SE2d 584) (2011) (appellant abandoned motion to suppress ground mentioned in
written motion because appellant failed to raise and argue it during the hearing and
failed to obtain a ruling on issue from trial court).

                                         7
