Cunningham v. State
Decision Date | 20 March 1998 |
Docket Number | No. A97A2092.,A97A2092. |
Parties | CUNNINGHAM v. The STATE. |
Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Cecilia M. Cooper, Americus, for appellant.
Howard S. McKelvey, Jr., Solicitor, for appellee.
Cunningham appeals his conviction of driving under the influence. OCGA § 40-6-391(a)(1).
1. He enumerates as error the denial of his motion to suppress all evidence and statements seized as a result of an allegedly illegal stop of his vehicle. The trial court did not err as a matter of law in denying the motion, which was based on the asserted absence of a valid articulable suspicion for the officer to stop Cunningham's car.
At the motion hearing, which bridged two days, the arresting officer testified that he was patrolling in a known high drug area about 5:15 a.m., a Sunday morning, when he noticed a vehicle unfamiliar to him being driven slowly by Cunningham, whom he did not know. These circumstances caused him concern, so he "ran the tag" by asking the dispatcher to check on it by number. He actually gave the number of GTL 689 to her twice, i.e., in two different ways. The dispatcher checked and related to the officer, without repeating the number, that the tag belonged on another vehicle. That being a violation of law, OCGA § 40-2-6, the officer conducted a traffic stop. The officer's belief in the license plate number discrepancy was the sole reason for the stop.
According to the officer, the dispatcher checked on the wrong number and thus gave the officer erroneous information. After the officer arrested Cunningham for driving while intoxicated and took Cunningham to the police station, the officer discovered the error when checking "the paperwork on the tag."
That is all the evidence on the point. Cunningham argued to the trial court that the stop was constitutionally infirm "because of the miscommunication or error."
When the hearing reconvened, the trial court found as fact that the stop was not pretextual but was based on an error of fact, made either by the officer when he called the number in or by the dispatcher when she heard the number. The court further found that it was an "honest human mistake ... [not] a contrived error" and not "done in bad faith." The court reiterated: The court specifically made a point of rejecting any nefarious underhandedness, stating: "I don't find that there has been any evidence presented that would make me believe that what occurred here was anything more than [human error]."
The court further found that "when the officer made the stop, he was making it in good faith, believing that he was stopping the defendant for having the wrong tag on the vehicle, and that that was a justifiable reason for making the traffic stop." The court actually applied the higher probable cause standard, even though it recognized that validity depended only on an articulable suspicion.
The denial of the motion was based on those findings.
Although Cunningham pays lip service to the state constitution by referring to it in general in his enumeration, he does not present this as a separate and independent basis for his contention of illegality. Thus there is no need to address such a ground. Harrison v. State, 213 Ga.App. 174, 175, 444 S.E.2d 354 (1994).
On motions to suppress evidence, the trial court is the finder of fact, and we must abide by its findings if supported by any evidence. Morgan v. State, 195 Ga.App. 732, 735(3), 394 S.E.2d 639 (1990). Fine & Block v. Evans, 201 Ga.App. 294, 295(1), 411 S.E.2d 73 (1991). Morgan, supra, 195 Ga.App. at 735, 394 S.E.2d 639.
We do not fault the State for not proving that the radio equipment used by the officer in the communications was in good working order and for not proving that there was an adequate protocol established and followed with respect to assuring accuracy of information conveyed. This would introduce, without authority or rationale, a new burden into the determination of whether a Terry stop is based on articulable suspicion. To the contrary, McDaniel v. State, 227 Ga.App. 364, 366(2), 489 S.E.2d 112 (1997), found reasonable a Terry stop based on a revoked "be-on-the-lookout" dispatch even though the police who stopped the vehicle did not verify the dispatch or assure its accuracy and thus did not find out that it had been withdrawn.
Nor can we substitute as an appellate finding of fact that the officer was not shown to be justified in relying on the dispatcher's response gleaned from checking official records in forming a reasonable, articulable suspicion. That is beyond our competency. In forming an articulable suspicion, an officer is "entitled to rely on the information given him by a fellow officer." Chumbley v. State, 180 Ga.App. 603, 604, 349 S.E.2d 823 (1986); see State v. Wright, 221 Ga.App. 202, 205(3), 470 S.E.2d 916 (1996) (same); see generally United States v. Hensley, 469 U.S. 221, 230-231, 105 S.Ct. 675, 681, 83 L.Ed.2d 604 (1985) ( ); Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568, 91 S.Ct. 1031, 1037, 28 L.Ed.2d 306 (1971) ( ).
The stop here is analogous to the arrest in Harvey v. State, 266 Ga. 671, 673, 469 S.E.2d 176 (1996), in that both were based on misinformation which the officer "neither knew, nor could be reasonably expected to have known, ... was incorrect when he made" the arrest of Harvey and the stop of Cunningham. This Court, proceeding similarly to the Supreme Court in Harvey, should not Id. "[S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment. . . ." Hill v. California, 401 U.S. 797, 804(II), 91 S.Ct. 1106, 1111, 28 L.Ed.2d 484 (1971). As in Hill, another case which like Harvey involved an arrest based in part on erroneous information, "on the record before us the officer['s] mistake was understandable and the [stop] a reasonable response to the situation facing [him] at the time." Hill, supra
This Court has previously recognized that Morgan, supra, 195 Ga.App. at 735(3), 394 S.E.2d 639. Surely the same applies to the establishment of an articulable suspicion to conduct a less intrusive Terry stop, which does not constitute an arrest requiring probable cause. See McDaniel, supra; Chumbley, supra; Wright, supra. Compare State v. Henderson, 215 Ga.App. 215, 218, 450 S.E.2d 288 (1994) ( ).
There is no suggestion by Cunningham, much less a shred of evidence including all reasonable inferences, that the error was attributable to any cause but the one found by the trial court.
The burden is on the State in opposing a motion to suppress evidence on the grounds of an illegal stop. OCGA § 17-5-30(b); Davis v. State, 266 Ga. 212, 465 S.E.2d 438 (1996). The court had evidence to rule in favor of the State, and consequently the trial court's ruling did not give rise to a reversible conviction.
2. Cunningham's challenge to the sufficiency of the evidence is met with our conclusion that evidence at trial authorized a rational trier of fact to find him guilty of driving "[u]nder the influence of alcohol to the extent that it [was] less safe for [him] to drive." OCGA § 40-6-391(a)(1); see Martin v. State, 216 Ga.App. 25, 453 S.E.2d 498 (1995); Lewis v. State, 214 Ga.App. 830, 831(1), 832, 449 S.E.2d 535 (1994); McFarland v. State, 210 Ga.App. 426(2), 427, 436 S.E.2d 541 (1993). The sufficiency test is set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The officer conducted the alco-sensor field sobriety test, which gave a positive result for alcohol. Cunningham refused to take a designated breath test. The officer testified that...
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