State v. Hester, No. A04A0125.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: MIKELL.
• Citation: 602 S.E.2d 271,268 Ga. App. 501
• Parties: The STATE v. HESTER.
• Docket Number: No. A04A0125.
• Decision Date: 15 July 2004

602 S.E.2d 271
268 Ga. App. 501

The STATE
v.
HESTER

No. A04A0125.

Court of Appeals of Georgia.

July 15, 2004.

602 S.E.2d 272

Wanda Vance, Assistant Solicitor, Gerald Blaney, Solicitor, Jeffrey Kwiatkowski, Chief Assistant Solicitor, Jason Samuels, Assistant Solicitor General, for Appellant

Monte Davis, Atlanta, for Appellee.

MIKELL, Judge.

Scott Hayward Hester was charged with two counts of driving under the influence of alcohol ("DUI") and with making an illegal U-turn. The trial court granted Hester's motion to suppress all evidence gathered following the stop of his vehicle. It is from this ruling that the state appeals. We affirm.

[268 Ga. App. 502] 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, ... [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

Because the trial court's decision involved the credibility of the witnesses, the de novo appellate review specified in Vansant v. State² does not apply.

With these principles in mind, the evidence shows that on January 13, 2002, the DUI task force of the Gwinnett County Police Department set up a sobriety check point near the intersection of Thompson Parkway and Singleton Road in Norcross. According to Sergeant Roy Smith, the roadblock was marked with orange cones with reflective striping and Department of Transportation signs that said "Caution Police Check Point Ahead," as well as marked police vehicles with their blue lights flashing. All officers working the checkpoint wore uniforms and reflective traffic vests and carried flash lights. Smith testified that the purpose of the road check was the detection and apprehension of impaired drivers. According to Smith, he observed a vehicle make a U-turn before arriving at the checkpoint. He further testified that because it appeared that the U-turn was made in a curve and on the crest of a hill, he ordered Officer Joel Whitt to pursue and stop the vehicle. On cross-examination, Smith admitted that in addition to the hill and curve where he alleged Hester made the U-turn, the street where the roadblock was set up had a flat portion where motorists could make legal turns into two business driveways. Smith could not describe the color, make, or model of the vehicle he observed other than it was a "passenger car" with its headlights on.

Whitt testified that he did not observe the U-turn, but that he was notified by other police officers on the scene that a vehicle had [268 Ga. App. 503] turned around to avoid the checkpoint. He could not recall if it was Smith who notified him. Whitt admitted that the only information

602 S.E.2d 273

he had when he began the pursuit was that a car had turned around. According to Whitt, after the other officers indicated the direction in which the vehicle was traveling, Whitt got in his car and drove approximately 100 yards. Hester's was the only vehicle he observed traveling in that direction. Whitt estimated that less than 30 seconds passed between the time he was notified of the U-turn and when he was able to locate the vehicle. Whitt stopped the vehicle and, after further investigation, arrested Hester for DUI and making an improper U-turn

Hester testified that, believing the roadblock was an accident scene, he made a legal U-turn on the flat portion of the road while there was no traffic in either direction.

The state argues that the trial court erred in granting the motion to suppress because there was sufficient evidence that Whitt possessed reasonable, articulable suspicion that Hester had committed an illegal U-turn to justify a brief investigative stop of the vehicle.³ This is not a case in which the articulable suspicion is suspicion of driving while impaired arising from legal but unusual maneuvers to evade the roadblock. Therefore, we are not assisted by the well-developed precedents illustrating the general rule that

normal driving that incidentally evades a roadblock does not justify an investigative stop, [but] "abnormal or unusual actions taken to avoid a roadblock may give an officer a reasonable suspicion of criminal activity even when the evasive action is not illegal."⁴

Instead, the suspicious activity in the case at bar was a traffic offense committed in the officer's presence: an impermissible U-turn in violation of OCGA § 40-6-121. Smith explained at the motion hearing: "You would have to go up the hill and around a curve. Doing a U-turn in such a manner is very unsafe. Not only unsafe but also illegal to do a U-turn on the hill crest in a curve. That's why he was stopped." OCGA § 40-6-121(1) prohibits turning a vehicle to go in the opposite direction "[u]pon any curve," and subsection (2) prohibits [268 Ga. App. 504] such a turn near the crest of a hill. If believed by the trial court, Smith's testimony would likely supply probable cause for stopping Hester and would be more than adequate to justify the brief investigative stop authorized by Terry v. Ohio.⁵

Hester argues that we should affirm because the evidence is in conflict. The officers testified that the U-turn was made on a curve and a hill, while Hester maintained that he executed the turn on a flat, straight portion of the roadway. As we noted above, when a trial court's findings are based on conflicting evidence, they will be affirmed if there is any evidence to support them.

However, the state pointedly argues that the evidence is not in conflict on the critical issue of whether Smith had in fact and in good faith an articulable suspicion that the motorist had made an illegal U-turn.⁶ Where the U-turn actually occurred would be decisive of the turn's legality. But its precise location does not determine the validity of the Terry stop. There was a U-turn and there was a hill in the vicinity. Therefore Smith had reasonable grounds for the suspicion, even if his belief was incorrect. If "the officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later legal determination that the defendant's actions were not a crime according to a technical

602 S.E.2d 274

legal definition."⁷

Therefore, the evidence in this case is not in conflict on the crucial point, that Smith believed that Hester had made an illegal U-turn. But the trial judge, sitting as the trier of fact, chose to disbelieve the testimony. According to the order dated June 6, 2003, the court granted the motion to suppress "for failure to prove reasonable, articulable suspicion." Under the controlling precedent from our Supreme Court, Tate v. State,⁸ the trier of fact "is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony." ⁹[268 Ga. App. 505]

The dissent in Tate quoted a contrary rule: "The direct and positive testimony of an unimpeached witness which is not inherently improbable, incredible [ ], or unreasonable and which is not contradicted, cannot be arbitrarily disregarded by the trier of fact."¹⁰ But as explained by Judge Robert H. Jordan of this Court, later of our Supreme Court, "[t]here is a difference in arbitrarily or capriciously disregarding testimony and in disbelieving it upon a consideration of all circumstances arising from the evidence."¹¹ The majority opinion in Tate makes it clear that a trial judge may disbelieve the state's evidence, even if it is uncontradicted and unimpeached.

The contrary rule, urged by the dissent in Tate, is venerable, dating back at least to Lankford v. Holton¹² in 1938. But Lankford, like most of the precedents upon which it depended and most of the decisions which have since followed its rule, was a civil case. In a criminal case, especially one like the case sub judice, which involves fundamental liberties enshrined in the Bill of Rights and in our own state Constitution, very...