Sevilla-Carcamo v. State

• Citation: 335 Ga.App. 788,783 S.E.2d 150
• Decision Date: 23 February 2016
• Docket Number: No. A15A2351.,A15A2351.
• Parties: SEVILLA–CARCAMO v. The STATE.
• Court: United States Court of Appeals (Georgia)

335 Ga.App. 788

783 S.E.2d 150

SEVILLA–CARCAMO

v.The STATE.

No. A15A2351.

Court of Appeals of Georgia.

Feb. 23, 2016.

Certiorari Denied Sept. 6, 2016.

Cuadra & Patel, Norman H. Cuadra, Lawrenceville, Chirag Patel, for Appellant.

Drew Unger, Asst. Dist. Atty., Daniel J. Porter, Dist. Atty., for Appellee.

DILLARD, Judge.

Katia Sevilla–Carcamo appeals the trial court's denial of her motion to suppress evidence. On appeal, Sevilla–Carcamo contends that the trial court erred when it concluded that (1) the officer had reasonable articulable suspicion to stop her vehicle based on her failure to use a turn signal; (2) in the alternative, the "good faith" exception, or a reasonable mistake of law, gave rise to a reasonable articulable suspicion justifying a stop of her vehicle; and (3) a third party validly consented to a search of the vehicle after she refused to consent. For the reasons set forth infra, we affirm.

At the outset, we note that the Supreme Court of Georgia has reiterated three fundamental principles to follow in reviewing a ruling upon a motion to suppress.¹ First, the trial judge sits as the trier of fact at a hearing on a motion to suppress.² And because the trial judge hears the evidence, the judge's 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]."³ Second, the trial judge's decision with regard to questions of fact and credibility "must be accepted unless clearly erroneous."⁴ Finally, we (as the reviewing court) must construe the evidence "most favorably to the upholding of the trial court's findings and judgment."⁵

So viewed, the record reflects that on the day in question, an officer with the Gwinnett County Police Department received a tip from a Drug Enforcement Administration ("DEA") agent that a white Acura SUV driven by Sevilla–Carcamo may contain illegal contraband. The officer then conveyed this information to a second Gwinnett County officer, who then followed the vehicle for some time, looking for justification to initiate a traffic stop.

As the officer followed behind, Sevilla–Carcamo came to an on-ramp for I–85 South and proceeded onto the interstate by merging across a dashed lane line into southbound traffic without utilizing a turn signal. According to the officer, southbound traffic was very heavy at the time, and the lane beside the merge lane contained many vehicles when Sevilla–Carcamo merged without the use of a signal. Additionally, at some point prior to the imminent traffic stop, Sevilla–Carcamo's vehicle traveled, in total, two lanes to the left of the merge lane. Thus, due to Sevilla–Carcamo's failure to utilize a turn signal while changing lanes, the officer initiated a traffic stop, at which point the officer who initially received the DEA tip also arrived on scene.

When the initiating officer approached Sevilla–Carcamo, he requested her driver's license, but she informed him that she did not have one. Sevilla–Carcamo also told the officer that she was en route to pick up a friend's child from a local elementary school, but the officer observed that the school was located eight to ten miles north of the direction she was traveling (which was southbound). At that point, the officer placed Sevilla–Carcamo under arrest for driving without a valid driver's license.

After her arrest, the officers asked Sevilla–Carcamo for consent to search the vehicle, which she declined to give. Then, in accordance with department policy, the officers allowed Sevilla–Carcamo to contact someone to recover the vehicle rather than have it impounded. Sevilla–Carcamo called her pastor and, 20 to 25 minutes later, he arrived on the scene.

Both prior to and concurrent with the pastor's arrival, a K–9 unit conducted two open-air searches of Sevilla–Carcamo's vehicle, but the dog did not alert to the presence of any contraband. Nevertheless, before the pastor could leave with the vehicle, the officers informed him that they suspected the presence of illegal contraband and that he "would be responsible for whatever was in the car if he took possession of the vehicle." The pastor then asked to speak with Sevilla–Carcamo, who was sitting handcuffed in the back of a patrol car.

The conversation that ensued between the pastor and Sevilla–Carcamo was mostly in Spanish, which none of the officers could speak or understand; but at its conclusion, the pastor informed the officers that Sevilla–Carcamo gave him permission to take possession of the vehicle and that she told him that "there may be drugs in the vehicle." The pastor then requested that the officers search the vehicle. But before doing so, one of the officers once again confirmed with Sevilla–Carcamo that she wished for the pastor to take possession of the vehicle, to which she responded in the affirmative.

Having received the pastor's permission to search the vehicle, the officers then proceeded with the search and located in the center console a large white purse containing a kilogram of cocaine. Sevilla–Carcamo was thereafter indicted for trafficking cocaine.⁶ She filed a motion to suppress the evidence discovered in her vehicle by law enforcement, which the trial court denied. Sevilla–Carcamo then filed an application for interlocutory appeal, which we granted. This appeal follows.

As set forth supra, Sevilla–Carcamo contends that (1) the officer lacked reasonable articulable suspicion to stop her vehicle based on a failure to use a turn signal; (2) the trial court erred in concluding that the "good faith" exception, or a reasonable mistake of law, gave rise to a reasonable articulable suspicion justifying a stop of her vehicle even if the failure to use a turn signal did not; and (3) her pastor's consent to search the vehicle was invalid when she had previously refused consent to search. We will address each of these enumerations of error in turn.

1. First, Sevilla–Carcamo argues that the officer lacked reasonable articulable suspicion to justify a stop of her vehicle based upon a failure to use a turn signal. Specifically, she contends that this is so because OCGA § 40–6–123 "contemplates instances in which a turn on a roadway can be made with reasonable safety and without the use of a turn signal." We disagree.

OCGA § 40–6–123 provides that no person shall, inter alia, "change lanes or move right or left upon a roadway unless and until such movement can be made with reasonable safety"⁷ and that "[n]o person shall so turn any vehicle without giving an appropriate and timely signal in the manner provided in this Code section."⁸ This statutory provision further directs that "[a] signal of intention to ... change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction."⁹

Sevilla–Carcamo argues that it was not necessary for her to utilize a turn signal while merging onto I–85 because drivers traveling southbound had "already been notified by a conspicuous merge sign with arrows indicating ... that vehicles will be merging into their lane of travel, thus obviating the need for southbound merge lane drivers to signal" and because, at the relevant on-ramp, "merge lane drivers have no legal option but to share the same lane [in which] they are already traveling." But we agree with the trial court that because, during a period of heavy traffic, Sevilla–Carcamo failed to use a turn signal when she crossed over a dashed lane line¹⁰ into the lane in which the on-ramp would have eventually fully merged, the officer indeed had probable cause to initiate a traffic stop for violating OCGA § 40–6–123.¹¹

2. Given our holding in Division 1 supra, we need not address Sevilla–Carcamo's second enumeration of error, which is that the trial court erred in finding, in the alternative, that the officer had a good-faith basis to stop her vehicle notwithstanding any mistake of law. However, it is worth noting that this Court has previously held, in the context of a traffic stop for a suspected violation of OCGA § 40–6–123(a), that "[i]f an officer in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later determination that the conduct observed was not a crime."¹²

3. Finally, Sevilla–Carcamo contends that her pastor's consent to a search of the vehicle was invalid because she had previously refused to permit a search. Yet again, we disagree.

It is well established that a valid consent to search "eliminates the need for either probable cause or a search warrant."¹³ And in United States v. Matlock,¹⁴ the Supreme Court of the United States explained that

when the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.¹⁵

Nevertheless, at least insofar as consent to search a residence is concerned, in Georgia v. Randolph,¹⁶ the Supreme Court of the United States somewhat limited its earlier holding in Matlock to specify that "a physically present co-occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him."¹⁷

Importantly, in limiting a co-tenant's ability to consent to the search of a residence, the Supreme Court of the United States focused on "societal expectations" and noted that because a "co-tenant wishing to open the door to a third party has no recognized authority in law or social practice to prevail over a present and objecting co-tenant, his disputed invitation, without more, gives a police officer no better claim to reasonableness in entering than the officer would have in the absence of any...