821 S.E.2d 33 (Ga.App. 2018), A18A0821, Burkes v. State

Docket Nº:A18A0821
Citation:821 S.E.2d 33, 347 Ga.App. 790
Opinion Judge:Mercier, Judge.
Party Name:BURKES v. The STATE.
Attorney:Thomas Edwin Griner, Marietta, for Appellant. Amelia Greeson Pray, D. Victor Reynolds, Marietta, for Appellee.
Judge Panel:DILLARD, C. J., DOYLE, P. J., and MERCIER, J. Dillard, C.J., and Doyle, P.J., concur.
Case Date:October 25, 2018
Court:Court of Appeals of Georgia

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821 S.E.2d 33 (Ga.App. 2018)

347 Ga.App. 790




No. A18A0821

Court of Appeals of Georgia, Fourth Division

October 25, 2018

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[Copyrighted Material Omitted]

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Thomas Edwin Griner, Marietta, for Appellant.

Amelia Greeson Pray, D. Victor Reynolds, Marietta, for Appellee.



Mercier, Judge.

Samuel Lee Burkes, Jr. was charged with trafficking in methamphetamine. Before trial, Burkes moved to suppress evidence police recovered while searching his vehicle during a traffic stop. Burkes, who was on parole at the time of the stop, had signed as a condition of his parole a Fourth Amendment waiver authorizing warrantless searches of his person and any property under his control. The court denied the motion to suppress based, in part, on Burkes’s Fourth Amendment parole waiver. After a bench trial on stipulated facts, Burkes was found guilty of trafficking in methamphetamine. On appeal, he challenges the denial of his motion to suppress, the sufficiency of the evidence to support the conviction, and the court’s consideration of hearsay testimony. Finding no error, we affirm.

1. Burkes contends that the trial court erred by denying his motion to suppress based on the Fourth Amendment parole waiver. On appeal, he asserts that the waiver at issue only allowed searches by parole officers, and that his parole officer could not consent to a search by or transfer that authority to a police officer. When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the trial court’s findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

Stroud v. State, 286 Ga.App. 124, 125 (1), 648 S.E.2d 476 (2007) (footnotes omitted); see State v. Colvard, 296 Ga. 381, 382 (1), 768 S.E.2d 473 (2015). "An appellate court determining whether a search was lawful may consider all relevant evidence of record, including that adduced at a pretrial suppression hearing and at trial." Stroud, supra. The trial court’s application of the law to undisputed facts is subject to de novo review. Thompson v. State, 289 Ga.App. 661, 658 S.E.2d 122 (2007). A trial court’s ruling on a motion to suppress will be upheld if it is right

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for any reason. Reynolds v. State, 280 Ga.App. 712, 716 (1), 634 S.E.2d 842 (2006).

Viewed in the light most favorable to the trial court’s findings and judgment, the evidence adduced at the suppression hearing and at the bench trial on stipulated facts showed the following. In March 2015, a police lieutenant with the City of Acworth was on patrol near a motel when a man flagged him down. The man told the lieutenant that a man and woman had been involved in a verbal altercation at the motel, and that the woman had been outside a room, threatening to call the police and report what the man had in the room. From his parked police car, the lieutenant began surveillance of the motel room. He saw a man leave the room, enter a vehicle, park it near the room, enter the room, and move items from the room to the vehicle. As the man was driving out of the parking lot, the lieutenant contacted another police officer who was in the area, Officer C. H., briefed him on the situation, and directed him to watch for the vehicle and see if he could establish probable cause to initiate a traffic stop.

Officer C. H. followed the vehicle and initiated a traffic stop for a suspected window tint violation; the window tint level registered "thirty percent." Officer C. H. testified that because the tint level was less than 32 percent, the tint was illegal, see OCGA § 40-8-73.1 (b) (2); the officer learned during the stop that the vehicle was a rental vehicle, and he concluded that the vehicle was thus exempt from the statute’s tint limits.1 The vehicles driver, Burkes, appeared to be nervous. Officer C. H. conducted a GCIC check of Burkess drivers license and discovered that Burkes was on parole. Officer C. H. walked back to the vehicle and stood at the back door (while a second officer stood at the front door). Officer C. H. asked Burkes "what he was on parole for." At first, Burkes said he did not know, but he eventually stated that he was on parole for "[d]rugs, possession, I think, distribution." Officer C. H. saw "baggies"...

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