Bain v. State

• Decision Date: 19 November 2002
• Docket Number: No. A02A1064.,A02A1064.
• Citation: 258 Ga. App. 440,574 S.E.2d 590
• Parties: BAIN v. The STATE.
• Court: Georgia Court of Appeals

574 S.E.2d 590

258 Ga. App. 440

BAIN v. The STATE.

No. A02A1064.

Court of Appeals of Georgia.

November 19, 2002.

Herbert Shafer, Atlanta, for appellant.

Philip C. Smith, Dist. Atty., Rand J. Csehy, Asst. Dist. Atty., for appellee.

BARNES, Judge.

After methamphetamine was found during a search of his car, Mark C. Bain was indicted for conspiracy to commit a crime, trafficking in methamphetamine, two counts of possession of a firearm during the commission of a crime, and possession of a destructive device. Later, he moved to suppress evidence of the drugs, contending they were seized during an illegal search. During the hearing on this motion, the State nolle prossed all charges except the trafficking charge, which was reduced to possession of over 200 grams of methamphetamine. Bain also waived his right to a jury trial and during a bench trial stipulated to sufficient facts for the trial court to find him guilty of possession of methamphetamine.

1. In several enumerations of error, Bain contends that the trial court erroneously denied his motion to suppress. We do not agree.

When an appellate court reviews a trial court's order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court's judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court's decision with regard to the questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment.

(Citations omitted.) Edgerton v. State, 237 Ga.App. 786, 787, 516 S.E.2d 830 (1999).

Viewed in the light most favorable to the trial court's judgment and findings, the evidence shows that on April 20, 2001, a fellow officer gave Detective Thompson, a detective with the Forsyth County Sheriff Department, Kenny Jackson's telephone number and told him that Jackson had information regarding local drug activity. When Detective Thompson called Jackson, Jackson told him that Bain was pressuring him to sell drugs, and he agreed to meet with Thompson. On April 23, Thompson and his partner, Detective Murdock, met Jackson and Jackson's girlfriend at a church cemetery. During the meeting, Jackson told the officers that he and Bain had become friends while incarcerated and that he had done some computer work for Bain. Jackson told the detectives that Bain wanted him to sell drugs to pay off a $700 debt. He relayed to the officers details about Bain's home, including the extensive gun collection and the video surveillance system in Bain's home and told them that Bain had confided that he sold methamphetamine. Jackson told the officers the make, model, and tag number of Bain's vehicle and told them that Bain carried contraband in a container in the front seat area. Detective Thompson testified that Jackson told him Bain always carried around at least a pound of methamphetamine. Jackson agreed to participate in a controlled buy.

At the motion to suppress hearing, Detective Thompson testified that, after the meeting, he and Detective Murdock corroborated Jackson's information and then met with Jackson the next morning to have him attempt contact with Bain. That morning, April 24, in the presence of the detectives, Jackson made several unsuccessful attempts to reach Bain at his residential and cellular numbers. Jackson finally talked with Bain, who agreed to meet at Jackson's residence. Jackson talked with Bain for a second time approximately 90 minutes later, at which time Bain advised him he was on his way. All of the calls were recorded.

Bain was stopped by a uniformed officer as he approached Jackson's home. Although the officer had been alerted to stop Bain, the officer also noted that Bain had a pipe projecting from the back of his truck in violation of OCGA § 40-8-27. When Bain exited his truck, the officer told him that he was stopped because of the pipe and asked Bain if he could search his truck. Bain initially agreed, but when he saw Detective Thompson approach his truck, he rescinded the consent, became irate, and moved toward Detective Thompson. Detective Thompson testified that, because he felt it was necessary for officer safety, Bain was then handcuffed. Detective Murdock looked through the passenger window of the truck and noticed a container "on the floorboard in front of the console" that matched Jackson's description of the one Bain used to carry methamphetamine. The officers searched the truck and recovered approximately one pound of methamphetamine, two loaded handguns, a light anti-tank weapon, scales, currency, and other drug-related items.

(a) Bain first argues that the motion to suppress should have been granted because the traffic stop for failing to flag the projecting pipe was pretextual. The trial court found, as a matter of fact, that the stop was not pretextual, noting that "there was articulable suspicion for the traffic stop. There was a traffic violation being committed. A PFC [sic] pipe sticking out without the proper—appropriate flags or lights."

In Whren v. United States, [517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996),] the United States Supreme Court held that when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances.

Smith v. State, 240 Ga.App. 150, 151(1), 522 S.E.2d 744 (1999).

OCGA § 40-8-27 requires a visible red light or bright red or orange flag on a load extending four feet or more from the rear of any vehicle, and since the evidence supports the conclusion that Bain violated the statute, the trial court did not err in finding that the stop was permissible and in denying the motion to suppress. Allenbrand v. State, 217 Ga.App. 609(1), 458 S.E.2d 382 (1995).

(b) Bain also contends that the trial court erred by denying his motion to suppress because the officers lacked probable cause to search his truck after the stop, specifically arguing that the totality of the circumstances, including the informant's veracity and reliability, was insufficient to establish probable cause.

Because of the ready mobility of an automobile and the fact that the expectation of privacy with respect to one's automobile is significantly less than that with respect to one's home or office, the United States Supreme Court has long recognized an exception to the warrant requirement for searching an automobile, if based upon probable cause. California v. Carney, 471 U.S. 386, 390-393, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985). When, as here, the basis for the search of Bain's car was an informant's tip and the officers' corroboration of certain details of that tip,

[t]he sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the totality of the circumstances surrounding (1) the basis of the informant's knowledge and (2) the informant's veracity or reliability. A deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability[, such as corroboration by the personal observation of a police officer].

(Citations and punctuation omitted.) Rucker v. State, 199 Ga.App. 854, 855, 406 S.E.2d 277 (1991). Further, these elements need not be exact in every case,...