State v. Aguirre, A97A1570

• Decision Date: 05 December 1997
• Docket Number: No. A97A1570,A97A1570
• Citation: 229 Ga.App. 736,494 S.E.2d 576
• Parties: , 98 FCDR 37 The STATE v. AGUIRRE.
• Court: Georgia Court of Appeals

Page 576

494 S.E.2d 576

229 Ga.App. 736, 98 FCDR 37

The STATE v. AGUIRRE.

No. A97A1570.

Court of Appeals of Georgia.

Dec. 5, 1997.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellant.

J. Converse Bright, Valdosta, for appellee.

McMURRAY, Presiding Judge.

Defendant Aguirre stands indicted for a violation of the Georgia Controlled Substances Act, possession of more than one ounce of marijuana with intent to distribute. The State appeals the grant of defendant's motion to suppress evidence. Held:

The only testimony presented at the motion to suppress hearing was that of a sheriff's deputy who had stopped a pickup truck driven by defendant. The deputy testified that just past midnight he observed a pickup truck traveling on an interstate highway at well below the posted speed limit. The pickup truck was traveling only 49 mph in a location with a 70 mph speed limit. The deputy, who was sitting in the median running stationary radar, noticed as the pickup truck went by that it had a temporary license tag and that he could not read certain handwritten characters on the tag. The deputy followed the vehicle, and pulled up behind the pickup truck but could not read the handwritten characters on the tag. When the deputy was alongside the pickup truck, the driver placed his hand in a position which denied the deputy a view of his face. The deputy then initiated a traffic stop.

The traffic stop revealed that defendant was a licensed driver, the temporary tag was valid, and the pickup truck had been purchased less than a week prior to the stop. The deputy issued a courtesy warning to defendant indicating that documents had been checked because the deputy could not read the temporary tag. The deputy then asked for and received defendant's consent for a search of the vehicle. During that search approximately 20 pounds of marijuana was found.

"When an appellate court reviews a trial court's order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court's judgment of the facts. 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 it.' [Cit.] Second, the trial court's decision with regard to 'questions of fact and credibility must be accepted unless clearly erroneous.' [Cit.] Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment. [Cit.]" Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646. Furthermore, "[i]n a motion to suppress, '(t)he credibility of the witnesses and the weight to be accorded their testimony rest with the trier of fact, who is under no obligation to believe a witness, even in the absence of contradictory testimony. The factfinder may accept part of a witness' testimony and reject another part, and "(i)n the absence of evidence of record demanding a finding contrary to the judge's determination, (the appellate) court will not reverse the ruling sustaining a motion to suppress. (Cit.)" (Cit.)' State v. Williams, 193 Ga.App. 462, 388 S.E.2d 55 (1989)." Anderson v. State, 267 Ga. 116, 118, 475 S.E.2d 629.

The State maintains that three circumstances combined to authorize the stop of the vehicle driven by defendant: the speed at which the pickup truck was traveling, uncertainty regarding the expiration date of the temporary license tag on the pickup truck, and defendant's concealment of his face from the deputy. "An initial investigative stop requires that the arresting officer have only reasonable, articulable suspicion, not probable cause. State v. Thomason, 153 Ga.App. 345(1), 265 S.E.2d 312 (1980). An officer may conduct a brief investigatory stop of a vehicle, if such stop is justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Evans v. State, 216 Ga.App. 21(2), 453 S.E.2d 100 (1995)." Edwards v. State, 219 Ga.App. 239, 243(3), 464 S.E.2d 851. Under the circumstances of the case sub judice the trial court was authorized to conclude that the deputy lacked such reasonable suspicion of criminal conduct and that the stop was predicated instead on a hunch or pretext.

Insofar as the speed of the pickup truck is concerned, the deputy acknowledged that the vehicle was traveling more than the applicable minimum speed of 40 mph and less than the maximum speed of 70 mph. While the deputy opined that the vehicle's speed being less than the maximum allowed suggested criminal conduct, this was not a hypothesis which the trial court as factfinder was obliged to embrace.

Nor was the trial court bound by the deputy's subjective interpretation of the posture assumed by defendant while driving. As finder of fact, the trial court was authorized to view the deputy's hypothesis that defendant was attempting to conceal his identity as mere speculation.

The temporary license tag on the pickup truck was issued by the State of Ohio. The cases of Edwards v. State, 219 Ga.App. 239, 464 S.E.2d 851, supra, and Burtts v. State, 211 Ga.App. 840, 440 S.E.2d 727 relied upon by the State, involve vehicles which were stopped because they failed to display any license tag. In Edwards, the vehicle had no tag displayed on the rear license area and only after the officer stopped the car was he able to see a temporary tag hanging in the rear window. The vehicle in Burtts had no visible valid license plate but only a rental agency paper drive-out tag. The stops in these cases were held proper based on suspected violations of OCGA § 40-2-41 or § 40-2-8.

In the case sub judice, there was no statutory violation apparent. Although there was some testimony by the deputy suggesting that a clear plastic cover over the tag partially obscured it, the evidence as a whole would support a finding that the plastic cover had no adverse effect on the legibility of the tag. A photograph of the license plate as installed on the vehicle shows the tag number to be clearly visible and further testimony by the deputy concerning his inability to read the handwritten notations fails to repeat the suggestion that the plastic cover obscured visibility of the tag. See in this regard OCGA § 40-2-41.

The trial court was authorized to conclude that the vehicle driven by defendant properly displayed the temporary license plate issued by the State of Ohio in compliance with OCGA § 40-2-41 which requires that the vehicle "display the license plate issued to the owner for such vehicle...." There is no statutory provision which would require the expiration date of this out-of-state tag to be legible to the deputy from his patrol car.

It follows that the trial court could reasonably conclude that the deputy did not have probable cause to believe that defendant had committed a traffic offense. The deputy's lack of probable cause removes the present case from the influence of the decision in Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 which holds that where law enforcement officers have probable cause to believe that a traffic violation has occurred, the decision to stop a vehicle is reasonable even where the stop is effected as a pretext for engaging in other law enforcement objectives. Compare Jackson v. State, 267 Ga. 130, 131(5)(a), 475 S.E.2d 637; State v. Holler, 224 Ga.App. 66, 70(2)(a), 479 S.E.2d 780; Freeland v. State, 223 Ga.App. 326(1), 477 S.E.2d 633.

The order granting defendant's motion to suppress evidence does not state the reasoning upon which it is based. Insofar as this may be revealed by the colloquy recorded at the hearing, we note that the superior court stated that "I find the testimony on why the defendant was stopped to be not credible," thus indicating, in our view, a conclusion that the stop was pretextual. In this connection we note that the deputy was "part of the ICE team," meaning "Interstate Criminal Enforcement" and was "trained ... to look beyond the traffic stop for other possible violations." A possibly pretextual stop is considered by looking to what a reasonable officer would do rather than what an officer could do. Brown v. State, 188 Ga.App. 184, 187, 372 S.E.2d 514; Tarwid v. State, 184 Ga.App. 853, 855, 363 S.E.2d 63. In this instance, the evidence of record fails to show that the ruling of the superior court is clearly erroneous. Since the superior court was also authorized to conclude that defendant's consent to the search of the vehicle was a direct consequence of a pretextual stop, there was no error in the grant of defendant's motion to suppress evidence. State v. Marcus, 206 Ga.App. 385, 386(2), 425 S.E.2d 351; Brown v. State, 188 Ga.App. 184, 187, 372 S.E.2d 514, supra; Tarwid v. State, 184 Ga.App. 853, 363 S.E.2d 63, supra.

Judgment affirmed.

ELDRIDGE, J., concurs.

BIRDSONG, P.J., SMITH and RUFFIN, JJ., concur and also concur specially.

ANDREWS, C.J., and BEASLEY, J., dissent.

RUFFIN, Judge, concurring specially.

I concur in the Court's opinion, but write separately to address certain concerns raised in arguments set forth by the dissent. The dissent posits its arguments that the trial court should be reversed on two grounds: (1) the court applied the wrong test in determining the reasonableness of the stop in light of Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996); and (2) "the trial court could not simply disregard the unrebutted testimony of the officer."

Before addressing these arguments seriatim, let me first assert that Whren is inapplicable, but even if it were applicable, it is factually distinguishable. What the dissent misperceives is the factual distinction between Whren and the instant case, as well as the age-old...