Tate v. State

• Decision Date: 28 February 1994
• Docket Number: No. S93G1057,S93G1057
• Parties: TATE v. The STATE.
• Court: Georgia Supreme Court

Page 646

440 S.E.2d 646

264 Ga. 53

TATE v. The STATE.

No. S93G1057.

Supreme Court of Georgia.

Feb. 28, 1994.

Reconsideration Denied March 25, 1994.

John R. Hesmer, Jane P. Manning, Marietta, for Tate.

Garry T. Moss, Dist. Atty., Blue Ridge Judicial Circuit, Gregory A. Hicks, Asst. Dist. Atty., Canton, for the State.

FLETCHER, Justice.

At approximately 1 a.m. on October 3, 1992, Tate was traveling north on Interstate 75. As he crossed the Cobb/Cherokee County line into Cherokee County he passed by a Cherokee County Sheriff's deputy who was parked alongside the interstate. The deputy testified that Tate's vehicle appeared to have no tag but, as he caught up to the vehicle and pulled up behind, he discovered that the vehicle had a tag but no tag light. The deputy further testified that having pulled to within 50 to 20 feet of Tate's vehicle he observed the vehicle weave over the lane lines. The deputy then stopped Tate (according to the deputy, to investigate Tate's erratic driving), questioned him and, because Tate acted nervous attempted to obtain consent to search his vehicle. Tate initially gave consent to search, then withdrew that consent before the deputy began his search. At this point the deputy radioed for a narcotics dog to sniff the vehicle. Overhearing this communication, Tate apparently informed the officer that there were drugs in the vehicle which the deputy retrieved. Tate was arrested and charged with a violation of the Georgia Controlled Substances Act.

Tate filed a motion to suppress contending that the seizure was in violation of his rights under the Fourth Amendment to the U.S. Constitution. After an evidentiary hearing, the trial court found that the stop "would not have been made by a reasonable officer in the absence of an ulterior motive to interdict drug trafficking on Interstate 75."

The state appealed the trial court's order granting Tate's motion to suppress, arguing that the trial court's findings of fact were inconsistent with its conclusion of law that the seizure was illegal. The state claimed that the trial court found, as a matter of fact, that the deputy stopped Tate because he had committed a traffic violation, thus making any ulterior motive irrelevant since the officer had a legitimate purpose in making the stop. The Court of Appeals adopted the state's argument. State v. Tate, 208 Ga.App. 117, 430 S.E.2d 9 (1993). Because we cannot agree that this interpretation reflects the actual findings made by the trial court, we reverse.

1. 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." State v. Swift, 232 Ga. 535, 536, 207 S.E.2d 459 (1974).

Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Woodruff v. State, 233 Ga. 840, 844, 213 S.E.2d 689 (1975) (Emphasis supplied). Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment. Anderson v. State, 133 Ga.App. 45, 47, 209 S.E.2d 665 (1974). On numerous occasions the appellate courts of this state have invoked these three principles to affirm trial court rulings that upheld the validity of seizures. ¹ These same principles of law apply equally to trial court rulings that are in favor of the defendant and their application to this trial court's order would demand that the court's order be affirmed.

2. The Court of Appeals' decision is predicated upon the conclusion that the trial court "found" that Tate committed traffic violations in the presence of the deputy. ² This conclusion, that the trial court found, as a matter of fact, that Tate committed traffic violations is not supported by the language of the trial court's order when reviewed in the context of the three principles enumerated in division 1. ³

The trial court filed a nine page order concerning Tate's motion to suppress. This order is divided into three sections headed: "Facts," "Conclusions of Law" and "Judgment." The Court of Appeals' opinion quotes the entire section headed "Facts," assumes that all of the testimony quoted therein is true and concludes that the deputy stopped Tate because he was violating traffic laws in the deputy's presence.

It is clear from reading the entire order that the testimony summarized in the "Facts" section does not constitute the actual and complete findings of fact by the trial judge. The portion of the trial court's order headed "Facts" is more a summary of the testimony provided at the hearing than a "findings of fact" by the trial court. This conclusion is supported by the document itself which specifically addresses the conclusion urged by the state and accepted by the Court of Appeals. In the "Conclusions of Law" section of the opinion, the trial court states:

The state contends the stop of the Defendant's vehicle occurred because [the deputy] observed a traffic violation and not because of any improper or invalid reason to obtain evidence of drug trafficking and was not based on a "drug courier profile." However, there is substantial evidence that [the deputy had] been trained in identifying the characteristics of a drug courier and that a conscious decision to focus on a relatively short strip of I-75 in Cherokee County had been made by the officer's superiors. Under such circumstances, the "issue is whether the officer's testimony was credible or whether the circumstantial evidence as to the drug courier profile predominated." O'Keefe v. State, 189 Ga.App. 519, 522, (376 SE2d 406) (1988).

After identifying credibility as the key issue with regard to whether the stop was made because of traffic violations or because the vehicle fit the drug courier profile, the trial court identified factual inconsistencies in the deputy's testimony in the "Conclusions of Law" portion of the order. These facts are not included in the "Fact" portion of the order ⁴ and they contradict portions of the testimony contained therein. A reviewing court should not interpret an opinion in such a way as to make it internally inconsistent and it is unlikely that the trial court would make conflicting findings of fact. Therefore, it follows that the inclusion of these contradictory facts by the trial court casts grave doubt on the state's contention that the "Facts" section is a list of the court's findings of fact and supports the conclusion that this section merely summarizes the testimony.

The trial court notes that the two officers assigned to I-75 by the Cherokee County Sheriff's Department are the two most trained in drug intervention and the officers were assigned to patrol that area despite the fact that I-75 only traverses 2.2 miles of Cherokee County. Moreover, despite testimony quoted in the "Facts" section that the deputy was "supposedly" assigned to traffic enforcement, the court notes that the only patrols on I-75 were late at night and early morning when traffic is lightest, and the deputy did not even have permission to use radar in his patrol unit. The court also found that Tate did not start weaving until after the deputy had pulled close enough to observe Tate's tag, that the deputy began questioning Tate about drugs in order to build "articulable suspicion" that Tate was a drug courier before subjecting him to field sobriety tests and that up until the deputy requested permission to search the vehicle, he did not believe that he had "probable cause to hold or detain [Tate]."

Having identified credibility as the key issue with regard to the legitimacy of the seizure and having identified inconsistencies in the deputy's testimony, the trial court concludes that the "evidence in this case supports the conclusion that the conduct of these officers is part of a cleverly conceived plan to interdict illegal drugs artfully executed in the guise of traffic enforcement" and that "upon consideration of the totality of the circumstances" the stop was pretextual. (Emphasis supplied). This conclusion clearly indicates that the trial court resolved the credibility issue against the deputy and found that the traffic violation did not occur.

3. The trial court addressed the question of whether the deputy stopped Tate for a traffic violation or to investigate a potential traffic violation, and stated that whether he did or did not was a question of credibility. The trial court then resolved the issue adverse to the deputy's testimony. Credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the trier of fact. 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. State v. Betsill, 144 Ga.App. 267, 240 S.E.2d 781 (1977). ⁵

We conclude from reading the entire order that the trial court chose not to believe the deputy's testimony that Tate committed a traffic violation. Such a conclusion is consistent with the way reviewing courts interpret judicial orders. For example, in Barnett v. State, 204 Ga.App. 491, 420 S.E.2d 43 (1992), the Court of Appeals was faced with the same question of how to determine whether the trial court found credible the testimony of an officer that he had stopped a vehicle for a traffic violation. The Court of Appeals held that the answer to this question could be found by looking at how the trial court ultimately ruled:

[The officer] testified [that] he stopped the vehicle because of its inoperative headlight. The trial...