Clark v. State
| Decision Date | 19 May 1993 |
| Docket Number | Nos. A93A0937,A93A0938,s. A93A0937 |
| Citation | 432 S.E.2d 220,208 Ga.App. 896 |
| Parties | CLARK v. The STATE. DANIEL v. The STATE. |
| Court | Georgia Court of Appeals |
Steven T. Maples, Decatur, for appellant in No. A93A0937.
Brown, Katz, Flatau & Hasty, Fred M. Hasty, Franklin J. Hogue, Macon, for appellant in No. A93A0938.
Willis B. Sparks, III, Dist. Atty., Vernon R. Beinke, Thomas J. Matthews, Assistant Dist. Attys., for appellee.
Appellants were jointly indicted with the offenses of trafficking in cocaine, possession of less than one ounce of marijuana and possession of a firearm during the commission of a felony. After evidentiary hearings, appellants' motions to suppress were denied by the Bibb County trial court. Appellants' applications for interlocutory appeal were granted. On appeal, both appellants contend that the trial court erred in denying their motions to suppress. We agree, as this was clearly a pretextual stop of a rental vehicle and a constitutionally impermissible search of appellant Clark, a black man, neither of which this court will condone.
On August 30, 1992, at about 10:40 p.m., Sergeant Boney, a Macon city police officer assigned to the Macon Drug Interdiction Unit, a special drug unit consisting of Sergeant Boney, another unit, and a dog unit, entered I-75 traveling north. Unrelated to any criminal investigation Sergeant Boney had previously contacted the auto leasing agencies in the Macon area concerning the disposition of vehicles involved in drug stops. Sergeant Boney noticed that a 1992 Ford Thunderbird, approximately 300 feet in front of his vehicle traveling north in the right lane, merged onto the Mercer University Boulevard exit ramp without the use of a turn signal at a point where I-75 curves sharply to the left and the defendant simply continued straight ahead in the right-hand lane. No other vehicles were traveling northbound on I-75 within sight of Sergeant Boney and the Thunderbird. Sergeant Boney followed the Thunderbird onto the exit ramp and increased his speed in order to close the distance between himself and the Thunderbird. Sergeant Boney also observed that the defendant was driving a leased vehicle and decided to stop the Thunderbird, purportedly to "investigate" the improper lane change violation, which had just occurred in his view and was a completed act.
1. Both appellants assert that Sergeant Boney's stop of the Thunderbird was made without a valid independent reason and, therefore, was pretextual. Appellants base their contention on the wording of OCGA § 40-6-123 and argue that it does not require the use of a turn signal in the present circumstances. The statute provides, in pertinent part: (Emphasis supplied.)
The trial court determined that a violation of OCGA § 40-6-123 had occurred because the driver of the Thunderbird failed to give a turn signal when exiting. This determination was erroneous. It is clear from the face of the statute that the legislature anticipated occasions when a signal was not required. 1 A lane change must be made with "reasonable safety" and, in some instances, reasonable safety requires giving a turn signal. OCGA § 40-6-123(a). Subsection (b) sets forth the manner and purpose of signaling one's intention to change lanes at times when such a signal is required. The legislature's concern was plainly the preservation of the safety of others by requiring sufficient notice of the driver's intent to turn or change lanes. Their use of the terms "when required" in subsection (b), clearly indicates that they anticipated times when use of a signal was not required for the safety of others. There is no question that the facts before us present such a situation.
The Mercer University Boulevard exit ramp begins where I-75 curves to the left, thereby enabling a car to enter the exit ramp with only a minor shift to the right. This type of interstate exit ramp is designed to emerge from the outside traffic lane and allows vehicles to enter safely from that lane without the use of a turn signal when no other vehicles are in the area. This situation is different from one in which a vehicle is changing lanes on an interstate, rather than entering an exit ramp, or when traveling on a road or street other than an interstate. It was undisputed that no other vehicles were in the vicinity of the Thunderbird. Additionally, Sergeant Boney was far enough away that he would have been unable to see any hand signal, if given, as authorized by OCGA § 40-6-124(a).
Sergeant Boney admitted that the action of the Thunderbird did not endanger the safety of anyone and that he had to speed up in order catch the Thunderbird on the long exit ramp. He also admitted that the Thunderbird was traveling within the speed limit and did not weave upon the roadway or exit ramp. However, Sergeant Boney further testified that although he had pulled hundreds of vehicles over for such a violation, he had issued very few tickets for this offense. Sergeant Boney was aware that a license plate containing four numbers followed by a letter, as secured to the bumper of the Thunderbird, usually indicated a rental vehicle. Under the present facts, notice of intent to change lanes was not necessary.
The state argues that the present stop is no different than the one upheld by this court in Huff v. State, 205 Ga.App. 557, 422 S.E.2d 664 (1992). We disagree. In Huff, the officer saw the "defendant weave across the lines bounding defendant's lane on two occasions." Id. at 557, 422 S.E.2d 664. Thereafter, when the officer Id. It is clear from the opinion in Huff that the officer pulled the defendant over due to the car's weaving. Furthermore, the officer, in Huff, was directly behind the defendant when the defendant changed lanes without a turn signal. In the case sub judice, Sergeant Boney was approximately 300 feet behind the Thunderbird when it merged onto the exit ramp and no other vehicles were in the vicinity.
The trial court ruled that the violation of OCGA § 40-6-123 gave Sergeant Boney an "independent valid reason" to stop the Thunderbird. However, because this court finds that OCGA § 40-6-123 was not violated, Sergeant Boney's stop of the Thunderbird was invalid unless supported by specific and articulable facts sufficient to give rise to a reasonable suspicion that the occupants of the Thunderbird were, or were about to be, engaged in criminal activity. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889 (1968); Evans v. State, 183 Ga.App. 436(2), 359 S.E.2d 174 (1987). Evans, 183 Ga.App. at 438, 359 S.E.2d 174.
In the case sub judice, Sergeant Boney admitted that he observed no violations other than the alleged improper lane change. He also admitted that the Thunderbird was traveling at the posted speed limit and that it did not weave. The only other fact of which...
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