Phillips v. State

• Decision Date: 15 July 2016
• Docket Number: A16A0322
• Citation: 789 S.E.2d 421,338 Ga.App. 231
• Parties: Phillips v. The State.
• Court: Georgia Court of Appeals

338 Ga.App. 231

789 S.E.2d 421

Phillips

v.The State.

A16A0322

Court of Appeals of Georgia.

July 15, 2016

Arthur L. Phillips, Macon, for Appellant.

Sharell Fincher Lewis, Rebecca Holmes Liles Grist, Macon, for Appellee.

Miller, Presiding Judge.

Following a stipulated bench trial, Arthur Phillips was convicted of DUI per se (OCGA § 40–6–391 (a) (5) ).¹ Phillips appeals, contending that the trial court erred in denying his motion to suppress evidence obtained during a traffic stop that resulted in Phillips's arrest. Specifically, Phillips argues that the arresting officer lacked a reasonable articulable suspicion to make the traffic stop. We disagree, and therefore we affirm.

[There are] three fundamental principles which must be followed when conducting an appellate review of a trial court's ruling on a motion to suppress. 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 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. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

(Citations and punctuation omitted; emphasis supplied.) Brown v. State , 293 Ga. 787, 802–803 (3) (b) (2), 750 S.E.2d 148 (2013) ; see also Hughes v. State , 296 Ga. 744, 746, 770 S.E.2d 636 (2015).

The trial court's application of the law to undisputed facts is subject to de novo review. See State v. Palmer , 285 Ga. 75, 78, 673 S.E.2d 237 (2009). Here, however, the controlling facts are disputed and the trial court has made express findings regarding those disputed facts. Accordingly, this Court is limited to those facts, and our standard of review requires us to accept the trial court's findings on those disputed facts, as well as the credibility of witnesses, unless they are clearly erroneous. Hughes , supra, 296 Ga. at 746 (1), 770 S.E.2d 636 ; Fennell v. State , 292 Ga. 834, 836, 741 S.E.2d 877 (2013).

So viewed, the evidence presented at the motion to suppress hearing shows that on the night of August 2, 2012, the arresting officer, a Georgia State Trooper, was patrolling Forest Hill Road in Bibb County. The trooper came up behind Phillips's vehicle and followed Phillips through a series of curves before they approached a stop sign at the intersection of Wesleyan Drive. As Phillips approached the stop sign, he applied the brakes on his vehicle and crossed over the right fog line.

In its order denying Phillips's motion to suppress, the trial made the following factual findings:

Mr. Phillips approached the stop sign at the intersection with Wesleyan Drive, [the trooper] observed Mr. Phillips cross the fog line. In his “DPS Incident Report” [the trooper] stated that he “observed a car that traveled into the edge of the grass.” In his testimony at the hearing, he clarified that Mr. Phillips did not reach the grass but in his observation it appeared that the right side of Mr. Phillips' right tire crossed beyond the right side of the fog line. He then initiated a traffic stop... based upon the failure of Mr. Phillips to maintain his lane[.]

Moreover, with regard to the videotape of the stop from the trooper's dashboard camera, the trial court specifically found that:

In this case, the video clearly shows Mr. Phillips's vehicle going to the right before the stop sign. The tires, at a minimum, reach the fog line, but the clarity of the video does not enable the [c]ourt to make an independent determination as to how far the tires crossed onto and/or over the fog line. The video does not prove or disprove [the trooper's] description of what he perceived while observing Mr. Phillips on the night of August 2, 2012, and the [c]ourt finds the testimony of [the trooper] to be credible as to what he perceived.

In his sole enumeration of error, Phillips argues that the trooper had no particularized and objective basis for suspecting that Phillips had committed a crime and, therefore, the stop was not justified. We disagree.

There is no violation of the Fourth Amendment protection against unreasonable searches and seizures where a police officer stops a person to investigate the officer's reasonable suspicion “that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez , 449 U.S. 411, 417, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981) ; Terry v. Ohio , 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968). See also Whren v. United States , 517 U.S. 806, 810, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (“An automobile stop is thus subject to the constitutional imperative that it not be unreasonable under the circumstances.”) (citation omitted). To establish reasonable suspicion to make an investigative stop, the totality of the circumstances must show that the officer had “specific and articulable facts which, taken together with rational inferences from those facts ... [provided] a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Vansant v. State , 264 Ga. 319, 320, 443 S.E.2d 474 (1994) (punctuation omitted). An officer's observation of a traffic violation justifies a brief investigatory stop. Camacho v. State , 292 Ga.App. 120, 122, 663 S.E.2d 364 (2008) ; Parker v. State , 307 Ga.App. 61, 62, 704 S.E.2d 438 (2010).

In this case, the issue of whether Phillips crossed the fog line is clearly disputed. The trooper testified that Phillips crossed the fog line as he approached a stop sign, and Phillips claims that he did not. Moreover, our own review of the video shows that it is dark and confirms that the video does not conclusively prove or disprove either the officer's or Phillips's testimony. Because the video is inconclusive, we must review this evidence in the light most favorable to the trial court's findings and judgment.

Hughes , supra, 296 Ga. at 746 (1), 770 S.E.2d 636 ; Fennell , supra, 292 Ga. at 836 (2), 741 S.E.2d 877.

Here, some evidence supports the trial court's findings that the officer's testimony was credible and that Phillips crossed the fog line—a violation of OCGA §§ 40–6–1 and 40–6–48. Accordingly, the trial court did not clearly err in finding that the officer had reasonable suspicion to initiate the traffic stop based on that traffic violation. See OCGA § 40–6–48 (1) ; Camacho , supra, 292 Ga.App. at 122, 663 S.E.2d 364 (“[n]umerous cases have held that weaving out of one's lane justifies a stop”).

We thus conclude that there was evidence to support the trial court's denial of Phillips's motion to suppress. Consequently, we affirm Phillips's conviction for DUI per se.

Judgment affirmed.

Ellington, P.J., Phipps, P.J., Dillard, Branch, McMillian, Mercier, and Peterson, JJ., concur.

McFadden, J., Dissents.

McFadden, Judge, dissenting.

The video recording is not inconclusive. It clearly contradicts the officer's hearing testimony. I therefore respectfully dissent.

At the hearing, the officer testified that he initiated the stop “when [Phillips] crossed over [the] fog line and up to the edge of the grass[.]” He further testified that he would not stop a car for merely “drifting within a curve.” The video recording, however, shows that Phillips was stopped immediately after his tire touched—but did not cross—the fog line. It most certainly does not show that Phillips drove “up to the edge of the grass”.

It is true that the stop occurred at night. But the fog line is vividly illuminated by reflected light...