Fitz v. State

• Decision Date: 13 October 2005
• Docket Number: No. A05A0974.,A05A0974.
• Citation: 275 Ga. App. 817,622 S.E.2d 46
• Parties: FITZ v. The STATE.
• Court: Georgia Court of Appeals

275 Ga. App. 817

622 S.E.2d 46

FITZ v. The STATE.

No. A05A0974.

Court of Appeals of Georgia.

October 13, 2005.

COPYRIGHT MATERIAL OMITTED

Stephen Harrison, Harrison & Harrison, Jacqualine Magistro-Hyde, McDonough, for Appellant.

Tommy Floyd, District Attorney, Atha Pryor, Assistant District Attorney, for Appellee.

BERNES, Judge.

A Henry County jury convicted James Elwood Fitz, Jr. of one count of burglary. Fitz appeals, contending that (1) the trial court erred by denying his motion to suppress; (2) the trial court erred by admitting similar transactions evidence; (3) the trial court erred by charging the jury on parties to a crime; and (4) he received ineffective assistance of counsel. For the reasons set forth below, we affirm.

1. Fitz contends that the trial court should have granted his motion to suppress. He claims that the officer who made the initial investigative stop of his vehicle had no specific, articulable suspicion that he was engaged in criminal activity. Fitz also contends that even if the initial stop was constitutionally valid, his subsequent questioning and detention by the officer were unreasonable in scope and duration.

In reviewing the denial of a motion to suppress, "the evidence is construed most favorably to uphold the court's findings and judgment. If there is any evidence to support the trial court's findings on disputed facts and credibility, they will not be disturbed unless clearly erroneous." (Citations and punctuation omitted.) Taylor v. State, 249 Ga.App. 538(1), 548 S.E.2d 662 (2001). We review de novo the trial court's application of the law to undisputed facts. State v. Mallard, 246 Ga.App. 357, 541 S.E.2d 46 (2000).

So viewed, the record reflects that at approximately 5:00 p.m. on June 4, 2003, a Henry County law enforcement officer en route to another call observed an empty white GMC Envoy parked on the side of the road along a wooded area. The vehicle appeared to be abandoned. The officer, who was familiar with the vicinity, believed that the empty vehicle was "out of place" along the wooded area and decided to return and investigate after responding to the other call.

At approximately 6:00 p.m., the officer returned to the wooded area to see whether the GMC Envoy was still there. The empty vehicle was in the same location. As he was getting ready to make a U-turn to better check out the vehicle, the officer observed a man later identified as Fitz suddenly run out of the nearby woods in front of his patrol car. Although it was summer, Fitz was wearing gloves. Fitz ran directly past the officer's patrol car, got into the GMC Envoy, and began to drive off.

Believing that Fitz may have just committed a burglary in a subdivision the officer knew was located on the other side of the woods, the officer activated his emergency equipment and called for back up. Fitz did not immediately come to a stop, instead traveling approximately 200 feet before stopping on the side of the road.

The officer approached Fitz's vehicle, asked Fitz for his driver's license and proof of insurance, and inquired why he had run so quickly out of the woods. Fitz appeared nervous and was sweating and shaking. His arms, legs, and face were covered in scratches. Fitz stated that he had run out of the woods because he had just been in an argument with his wife. He pointed toward the woods, indicating that his home was in that vicinity. However, his driver's license revealed that he did not live in that area. Fitz then received a call from his wife on his cell phone. The officer spoke with Fitz's wife, and she told the officer that her argument with Fitz had been "earlier that day or that morning." After the call, Fitz told the officer that because his wife and he always argued, he was in the area looking at property so that he could build a new home and move out.

Fitz subsequently consented to a search of his vehicle. The search uncovered items later revealed to have come from a home in a nearby subdivision that had been broken into earlier that day.

Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), "[a] police officer may make a momentary detention and investigation based upon specific and articulable facts [of wrongdoing], which must exceed mere inclination, caprice, or harassment." (Citations omitted.) Smith v. State, 262 Ga.App. 614, 617(1), 585 S.E.2d 888 (2003). "This specific, articulable suspicion must be based on the totality of the circumstances," which can include "the inferences drawn and deductions made by a trained law enforcement officer." (Citations and punctuation omitted.) State v. Wright, 221 Ga.App. 202, 204(3), 470 S.E.2d 916 (1996). Even if "the conduct justifying the stop [is] ambiguous and susceptible of an innocent explanation," Illinois v. Wardlow, 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), the officer may temporarily detain the individual and resolve the ambiguity as long as there is "at least a minimal level of objective justification for making the stop" that goes beyond a mere "unparticularized suspicion or hunch." (Citation, punctuation and footnote omitted.) Id. at 123-124, 120 S.Ct. 673.¹ We will not reverse a trial court's ruling on a motion to suppress "[i]n the absence of evidence of record demanding a finding contrary to the judge's determination." (Punctuation and footnote omitted; emphasis in original.) State v. Winnie, 242 Ga.App. 228, 231, 529 S.E.2d 215 (2000).

Under the totality of the circumstances, we cannot say that the evidence demanded that the trial court grant Fitz's motion to suppress. The presence of an empty vehicle parked for at least an hour in an unusual location that backed up to a residential subdivision, combined with the officer's observation of Fitz darting out of the woods in gloves in summer, created an objectively reasonable inference that Fitz was engaged in some type of illegal activity. In light of what the officer observed, it is clear that he did not stop Fitz based on "mere caprice or a hunch or an inclination." (Citation and punctuation omitted.) Jones v. State, 259 Ga.App. 849, 851-852, 578 S.E.2d 562 (2003).²

Our conclusion is supported by State v. Godbolt, 270 Ga.App. 190, 193, 606 S.E.2d 278 (2004), where we held that a police officer who observed a defendant "running rapidly and in a haphazard manner across lawns and jumping over fences" had a reasonable suspicion that the defendant had been "involved in illegal activity." Id. Likewise, our conclusion is consistent with cases holding that the presence of a parked car in a suspicious or odd location, combined with other factors, can provide reasonable suspicion for a brief stop of the vehicle to inquire further. See Popham v. State, 214 Ga.App. 775, 449 S.E.2d 150 (1994); Howard v. State, 150 Ga.App. 847, 258 S.E.2d 652 (1979).

Moreover, "[t]he primary purpose for the exclusionary rule is to deter police misconduct," (citation omitted) State v. Armstrong, 223 Ga.App. 350, 352-353(2), 477 S.E.2d 635 (1996), and there is no evidence in the record that the officer stopped Fitz's vehicle in order to harass or intimidate Fitz. "No purpose of deterrence would be served by suppressing the evidence found in this case, which was the product of a stop prompted by the officer's legitimate concern for public safety." Id. at 353(2), 477 S.E.2d 635. Thus, the trial court properly concluded that the officer who stopped Fitz's vehicle had a specific, articulable suspicion justifying the stop.

Fitz cites to several cases that he argues mandate a contrary result. See Baker v. State, 256 Ga.App. 75, 567 S.E.2d 738 (2002); Smith v. State, 245 Ga.App. 613, 538 S.E.2d 517 (2000); Attaway v. State, 236 Ga.App. 307, 511 S.E.2d 635 (1999). But Fitz "offers no argument and cites to no case wherein all of the indicia present in this case — taken together — would be insufficient for a reasonable officer to believe [Fitz] was engaged in wrongdoing." (Emphasis in original.) Evans v. State, 262 Ga.App. 712, 717(1)(b), 586 S.E.2d 400 (2003). In the cases cited by Fitz, the officers merely observed individuals driving vehicles in a manner entirely consistent with the traffic laws and without posing any public safety risk.³ Here, the officer observed additional facts, including the presence of an empty vehicle for an extended period in an odd location near a residential subdivision in conjunction with the incongruous sight of Fitz, in gloves in summer, running rapidly out of the woods and toward the vehicle. These facts make the present action more akin to cases like Godbolt, 270 Ga.App. 190, 606 S.E.2d 278, Popham, 214 Ga.App. 775, 449 S.E.2d 150, and Howard, 150 Ga.App. 847, 258 S.E.2d 652, where we held that the officer had reasonable suspicion, as discussed above.

Similarly, the trial court did not err in concluding that Fitz's subsequent detention and questioning by the officer were reasonable in scope and duration. "When effecting [an investigative] stop, an officer has certain restrictions on him regarding the scope of the detention. The scope of the detention must be carefully tailored to its underlying justification." (Citation and punctuation omitted.) Anderson v. State, 261 Ga.App. 657, 658, 583 S.E.2d 511 (2003). The record reflects that the officer's questions to Fitz directly related to his reason for stopping the vehicle, namely, his suspicion that Fitz had committed a burglary. Furthermore, Fitz's "unusually nervous" demeanor, scratched up appearance, and odd and conflicting answers to the officer's questions provided the officer with reasonable grounds to continue the detention and investigate further. Id. at 659, 583 S.E.2d 511. See also Bell v. State, 248 Ga.App. 254, 257, 546 S.E.2d 34 (2001).

Because the stop of Fitz's vehicle and his questioning and detention were proper, Fitz's subsequent consent to the search of his vehicle likewise was valid. McDaniel v. State, 227 Ga.App. 364, 366(2), 489 S.E.2d 112 (1997). Therefore, the...