State v. Dixson, A06A0592.

• Decision Date: 05 July 2006
• Docket Number: No. A06A0592.,A06A0592.
• Citation: 280 Ga. App. 260,633 S.E.2d 636
• Parties: The STATE v. DIXSON.
• Court: Georgia Court of Appeals

280 Ga. App. 260

633 S.E.2d 636

The STATE v. DIXSON.

No. A06A0592.

Court of Appeals of Georgia.

July 5, 2006.

Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, Assistant District Attorney, for Appellant.

Priya N. Lakhi, Office of Public Defender, Decatur, Therese M. Allen, Assistant Public Defender, for Appellee.

PHIPPS, Judge.

After being charged with two counts of violating the Georgia Controlled Substances Act, Richard Dixson filed a motion to suppress evidence seized during a traffic stop. The trial court conducted an evidentiary hearing, and then granted Dixson's motion to suppress. The state claims that the traffic stop was legal and that Dixson's arrest was supported by probable cause. We conclude that the initial stop was improper and therefore affirm.

We must abide by three principles when reviewing the grant of a motion to suppress:

First, the 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. 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.¹

The following testimony was presented at the motion to suppress hearing by the arresting officer; no one else testified. On October 13, 2004, Officer Sergey Voronkov was on routine patrol and decided to run a check with the National Crime Information Center (NCIC) on the car in front of him, which was being driven by Dixson. The NCIC check revealed an "unknown" insurance status. Voronkov then turned on his blue lights and siren to stop the car. Dixson continued at a low rate of speed for approximately 75 yards before pulling into a driveway and stopping. He then got out and remained in the doorway of the car. At that point, Voronkov realized that there was a passenger in the car. Voronkov immediately called for backup and told Dixson to get back in his car. As Voronkov approached the car, Dixson handed him his driver's license and proof of insurance. Voronkov testified that he smelled a strong odor of burning marijuana. When he asked Dixson if he had been smoking marijuana, Dixson said that he had done so earlier. Several officers arrived as backup and another officer asked the passenger to get out of the car. Voronkov saw the other officer reach into the center console area between the front seats and pull out a white chalky substance, which tested positive for cocaine. Voronkov never saw the cocaine before the other officer pulled it out. The officers found marijuana on the ground next to the passenger. When Dixson was arrested, he said that all of the drugs were his.

Voronkov testified that he did not witness Dixson commit any traffic violations before he stopped the car. Voronkov never did check the status of Dixson's insurance. He testified that, although Dixson presented an insurance card, "you actually have to call the insurance company in order to find out whether it's valid or not because they could cancel it."

The trial court ruled that the arresting officer lacked reasonable, articulable suspicion to stop Dixson and that he also lacked probable cause to arrest Dixson after the initial illegal stop.

The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of Dixson's car here.² "An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity."³ That determination can only be made after considering the totality of the circumstances or the whole picture. Based upon that whole picture, "the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity."⁴ Investigative stops of vehicles based solely on unparticularized suspicion or hunch are invalid.⁵ "The state bears the burden of presenting evidence that demonstrates a reasonable suspicion of criminal activity."⁶

In Delaware v. Prouse,⁷ the United States Supreme Court held that stopping a vehicle and detaining the driver to check his driver's license and registration is unreasonable under the Fourth Amendment, unless there exists an articulable and reasonable suspicion that the driver is unlicensed or the vehicle is unregistered or that the driver or vehicle is otherwise subject to seizure for violation of the law.⁸ Logically, the same rule would apply to stopping a vehicle and detaining the driver to check the insured status of the vehicle.

In Self v. State,⁹ this court recognized that where a law enforcement officer "checked [a computer database for] the vehicle's license tag prior to stopping it and determined that the tag belonged to [another vehicle]," those facts supported the stop of the vehicle. But the investigatory stop was upheld as valid only when additional facts were considered: the vehicle had been described by the victims of the crime; police officers had been notified that the vehicle was back at the crime scene, had located it within moments of being notified of its whereabouts and had observed unusually slow movements by the vehicle.¹⁰ Here, the record does not show that the state database provided the officer with any specific articulable facts that would create a reasonable suspicion that Dixson was engaged in criminal conduct. And, unlike the Self case, there are no other facts in the record that would support the validity of the stop.

To improve the enforcement of minimum motor vehicle liability insurance requirements, the State of Georgia maintains a database to which insurers provide information regarding the insured status of vehicles registered in Georgia, and that information is accessible to law enforcement officers throughout the state.¹¹ If a Georgia law enforcement officer determines that the owner or operator of a motor vehicle for which minimum motor vehicle liability insurance coverage is required does not have proof or evidence of required minimum insurance coverage, the officer is authorized to issue a uniform traffic citation for operating a motor vehicle without proof of insurance.¹² However, a law enforcement officer is not authorized to issue a uniform traffic citation solely because the officer is unable to obtain insurance coverage information from the state database.¹³

Here, Voronkov testified that he stopped Dixson solely because his check of Dixson's car tag revealed an "unknown" insurance status. Voronkov did not testify that an "unknown" status likely meant that Dixson's car was uninsured. Nor did he testify about any prior experience or training he had with such a response from an NCIC search or why the database might produce such a response. Voronkov did not observe Dixson commit any traffic violations, and Voronkov was not authorized to issue Dixson a citation solely because he was unable to verify his insured status through the database. We conclude that the state, relying solely on an "unknown" response from a database, has failed to show specific articulable facts sufficient to raise a reasonable suspicion that Dixson was engaged in criminal conduct.¹⁴ Under these circumstances, Voronkov was not authorized to stop Dixson's car.¹⁵ The subsequent search was therefore tainted, and the trial court properly suppressed its results.¹⁶

The state argues that an "unknown" registration status would create a reasonable suspicion authorizing the investigatory stop of a vehicle and that an "unknown" insurance status should do the same. The state relies on State v. Joyner,¹⁷ but that reliance is misplaced as Joyner specifically did not decide whether an initial traffic stop based on a questionable registration status was legal.¹⁸ Instead, Joyner concluded that the challenged evidence was obtained during an illegal detention and upheld the trial court's grant of the defendant's motion to suppress on that basis.¹⁹

The dissent takes the position that a "questionable notation" in the state's computer database, without more, justified the investigatory stop of Dixson's vehicle. Before the computer database became available, a law enforcement officer could not stop a vehicle solely to check its insured status despite the fact that that status was unknown. The creation of the database does not alter the rule that an investigatory stop must be justified by some objective manifestation that the person stopped is engaged in criminal activity. The computer's return of "unknown" in response to a query regarding the insured status of a vehicle does not create a reasonable suspicion of criminal activity. There are no facts in the record indicating that a return of "unknown" makes it any more likely that a vehicle is uninsured rather than fully insured. Instead of speculating about what might have caused the response of "unknown," we are required to determine whether the state has met its burden of proving that such a response created a reasonable suspicion of criminal conduct. The dissent seems willing to dispense with that requirement merely because law enforcement of ficers now rely on the computer database instead of insurance cards. That cannot have been an intended result of the database's creation.

Finally, we must disagree with the dissent's suggestion that an investigatory stop can be justified as a "courtesy stop" to alert a driver that there may be a problem with his or her insurance. The use of such a label does not exempt state action from Fourth Amendment scrutiny. In Delaware v. Prouse,²⁰ the Supreme Court plainly stated that "[t]he Fourth and Fourteenth Amendments are implicated . . . because stopping an automobile and detaining its occupants constitute a `seizure' within the meaning of those Amendments, even though the...