State v. Wright

• Decision Date: 30 April 1996
• Docket Number: No. A96A0460,A96A0460
• Parties: The STATE v. WRIGHT.
• Court: Georgia Court of Appeals

Page 916

470 S.E.2d 916

221 Ga.App. 202

The STATE v. WRIGHT.

No. A96A0460.

Court of Appeals of Georgia.

April 30, 1996.

Robert E. Turner, Sol., Cynthia T. Adams, Asst. Sol., for appellant.

Sammons & Sammons, Walter G. Sammons, Jr., Warner Robins, for appellee.

BIRDSONG, Presiding Judge.

This is an appeal by the State of the order of the trial court granting appellee Russell P. Wright's motion to dismiss.

Appellee was issued a traffic citation for DUI. The trial court, citing State v. Golden, 210 Ga.App. 800, 437 S.E.2d 492, granted appellee's motion to dismiss on the grounds the arresting officers had no particularized suspicion to justify the initial stop of appellee who was driving his motor vehicle; rather, the court concluded the initial stop was conducted "merely to make sure that no criminal violations had taken place."

Investigator Lowry of the Houston County Sheriff's Department was in his patrol unit when he monitored a call from dispatch regarding a lookout placed on a vehicle which had been observed "cutting doughnuts behind a church." Dispatch provided the reported location and description of the vehicle and two uniformed officers in another patrol unit were sent to the church. As Lowry proceeded in his patrol unit toward his residence, a vehicle matching the description of the reported vehicle passed him. The vehicle was coming from and was approximately only 400 yards from the church. Lowry turned his unit around and was attempting to catch the subject vehicle when the other patrol unit caught up to Lowry. Lowry then observed the suspect vehicle definitely "weaving"; the vehicle "swung over" and made yet another turn. When the driver of the subject vehicle turned, "he made it so wide that he actually went off the right side of the road." Lowry advised the trailing patrol unit that he was going to attempt to stop the vehicle and then activated his blue light. The vehicle proceeded to an intersection and stopped. The officers in the trailing patrol car handled the ensuing investigative detention which culminated in appellee's DUI citation. When Lowry commenced to follow the vehicle, he did not suspect it was involved in any kind of criminal activity "other than it fit the general description of the lookout." Lowry did not personally investigate the incident and did not issue any traffic citations.

The uniformed officers initially had been dispatched to the church after being informed by the dispatcher that a blue or green pickup truck with a cab cover was in the church's back parking lot "spinning doughnuts." The truck was not in the parking lot when they arrived at the scene; however, circular tracks were observed where the truck had been driving. The dispatched vehicle then received a call from Lowry stating that he was following a vehicle that matched the description of the vehicle in question and giving them his location. The dispatched vehicle caught up with Lowry and observed the subject vehicle "cross the center divider line approximately four times" and make "an erratic turn" or "erratically swerve" onto an adjoining road without using "a turn signal"; the vehicle "cut the curb because he ended up taking the other lane." The officers followed the vehicle, as it turned, and "decided to do our vehicle pullover at that time." The dispatched vehicle then activated its flasher lights and Lowry also activated his blue light. Appellee stopped and exited his vehicle, and investigative detention commenced. The apprehending officer asked if appellee knew why he was being stopped, and appellee responded he thought it was for the driving he was doing at the church.

When the apprehending officer was at the church, he believed a crime of "reckless driving had occurred" there; however, appellee was not charged with reckless driving or any other crime relating thereto. The apprehending officer did not issue appellee a ticket for reckless driving, because before he was Mirandized appellee admitted he had been driving at the church and the officer already had "probable cause for the DUI"; further, the officer did not see appellee driving at the church. The arresting officer also elected not to issue appellee a citation for failing to maintain his lane, for failing to signal a turn, or for making a wide turn, although the latter two incidents were recorded in his report. He did not issue a citation for these offenses because they were examples of incidents giving rise to probable cause for the DUI, and he saw no point in adding further charges to the DUI citation. The arresting officer's shift supervisor, who also was in the dispatched patrol unit, testified and basically confirmed the testimony of the arresting officer. He further testified that after catching up with Lowry he saw that the pursued vehicle was weaving. The vehicle was kept under observation and was observed weaving over the centerline a couple of more times and, when it turned without giving a signal, his unit then called in and "initiated the traffic stop at that time." (Emphasis supplied.) Appellee pulled his vehicle over in response to the units' flashing lights. The shift supervisor was concerned because appellee's driving conduct indicated he was under the influence of alcoholic beverages, could be having problems with his steering, or might be in need of help. Appellee's driving conduct constituted technical violations of the uniform rules of the road. The investigation made at the church, before appellee was observed, revealed evidence that somebody had been there shortly before the officers and was driving in an unsafe manner in the parking lot. Held:

1. "This appeal does not involve a trial court's rulings on disputed facts and credibility at a suppression hearing, which must be accepted by a reviewing court unless clearly erroneous, [cit.], as the facts in the case sub judice were not in conflict. Rather, '(t)his court's responsibility in reviewing the trial court's decision on a motion to suppress is to ensure that there was a substantial basis for the decision. (Cit.)' [Cit.] " State v. McFarland, 201 Ga.App. 495, 411 S.E.2d 314.

2. The trial court's reliance on Golden, supra, is misplaced; Golden is distinguishable. In Golden, the vehicle was not observed committing traffic violations before the stop; it was stopped merely to confirm that no crime had been committed. Also distinguishable is Jorgensen v. State, 207 Ga.App. 545, 428 S.E.2d 440 where the officer detained defendant solely on his intuition that defendant had avoided a roadblock.

3. The suppression hearing testimony of the investigator and officers was not refuted. Appellee was stopped by the combined and simultaneous actions of Investigator Lowry and of the officers in the dispatched patrol unit.

" 'Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Investigative stops of vehicles are analogous to Terry-stops (Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)), and are invalid if based upon only (an) unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.'... [Cit.] This specific, articulable suspicion must be based on the totality of the circumstances--e.g., objective observations, information from police reports, the modes or patterns of certain kinds of lawbreakers, and the inferences drawn and deductions made by a trained law enforcement officer." Cheatham v. State, 204 Ga.App. 483, 484(1), 419 S.E.2d 920. When the police activated their flasher lights and caused appellee's vehicle to stop, they unrefutedly were in possession of knowledge, gained from their individual personal observations, that appellee had committed at least two distinct traffic violations; specifically, both officers and the investigator had observed appellee repeatedly fail to maintain a single lane (weaving) (see generally Ramirez v. State, 192 Ga.App. 255, 384 S.E.2d 279; OCGA § 40-6-48(1)), and had observed him turn without giving a turn signal (OCGA § 40-6-123). Compare Cunningham v. State, 216 Ga.App. 283, 454 S.E.2d 176 andEvans v. State, 216 Ga.App. 21, 453 S.E.2d 100 (articulable suspicion where vehicle driving with defective headlight). At the moment when appellee was signaled to stop his vehicle, the officers and the investigator each harbored an articulable suspicion, based on personal observation, that appellee had committed multiple traffic violations. Because they all simultaneously assisted in the stop, we emphasize that the existence of an articulable suspicion may be "based on the collective knowledge of law enforcement officials." Tarwid v. State, 184 Ga.App. 853, 855, 363 S.E.2d 63. In this regard, any one of the apprehending officers "was entitled to rely on the information given him by a fellow officer" in the formation of an articulable suspicion. Chumbley v. State, 180 Ga.App. 603, 604, 349 S.E.2d 823.

Also, the arresting officer's supervisor had an articulable suspicion, based on the manner in which appellee operated his vehicle, that appellee was driving under the influence of alcohol, driving a vehicle with steering problems, or was in need of help. Any one of these conditions could pose a real and present danger to both appellee and the public. Compare Cunningham, supra at 284, 454 S.E.2d 176.

"The fact that the officer[s] did not charge defendant with [these observed traffic offenses] but only with the more serious offense of driving under the influence is immaterial" (State v. Adams, 186 Ga.App. 87, 88 366 S.E.2d 326); it was in the arresting officer's discretion which of the traffic offenses, if any, he would cite appellee for violating. Articulable suspicion is not negated nor is a traffic stop deemed to be a mere sham or pretext solely...