ANDERSON v. THE STATE.
A04A0410
Court of Appeals of Georgia
JANUARY 12, 2004
592 SE2d 910
was happening. The victim testified that she was afraid. The evidence is that, when the victim attempted to call 911, Izzo “grabbed the phone, pushed her, and snatched the phone from the wall.” He “smashed [the telephone] to pieces.” The victim was able to complete a 911 call on her cellular telephone only because “Mr. Izzo‘s mother was there. She was holding Mr. Izzo back keeping him away from her.” When the police arrived, the victim was “noticeably upset as if she had been traumatized to an extent.”
“The intention with which an act is done is peculiarly for the jury.”8 We find the above-stated evidence sufficient for the jury to find beyond a reasonable doubt that Izzo physically obstructed the victim from completing a 911 call “with intent to cause or allow physical harm or injury to [her].”9
Judgment affirmed. Ruffin, P. J., and Adams, J., concur.
DECIDED JANUARY 12, 2004.
Cook, Lundy & Sanderson, Michelle G. Lundy, Catherine B. Sanderson, for appellant.
Steven L. Harris, Solicitor-General,
ELDRIDGE, Judge.
Following a bench trial in the Superior Court of Floyd County, Clifford A. Anderson was found guilty of possession of cocaine. He appeals and, without otherwise challenging the sufficiency of the evidence against him, claims error in the trial court‘s denial of his motion to suppress based upon an allegedly illegal stop of his vehicle and an invalid consent to search. Upon review of the circumstances surrounding both grounds for suppression, we affirm Anderson‘s convictiоn.
On appeal from a motion to suppress, the evidence is viewed in a light most favorable to upholding the trial court‘s judgment. The credibility of witnesses and the weight accorded their testimony rest with the trier of fact. Thus, the trial court‘s findings on disputed facts and credibility must be accepted unless clearly erroneous.1
So viewed, the record shows that Anderson‘s driver‘s license was suspended following a May 2001 conviction for violation of the Georgia Controlled Substances Act. Floyd County Sheriff‘s Deputy R. Clemones testified at the suppression hearing that he was very familiar with Anderson. In the recent past, Clemones had arrested Anderson for drugs, аs well as participated in the execution of a number of narcotics-based search warrants wherein Anderson was present at the locale to be searched. Deputy Clemones had personal knowledge that Anderson‘s driver‘s license had been suspended. Clemones also had personal knowledge that Anderson continued to drive a car despite his suspended license. At one point in 2001, Clemones saw Anderson driving with his license suspended; when Anderson saw the deputy, he abandoned his vehicle and fled on foot. Further investigation of Anderson in the summer of 2002 revealed that Anderson‘s driver‘s license was still suspended, as it hаd been for over a year.
Deputy Clemones asked Andersоn for his license, which was produced. Anderson‘s driver‘s license had been reinstated two weeks earlier on November 8, 2002. Clemones told Anderson that he knew he did not have a license prior to this point; Anderson concurred and stated that he “just got them back in the past couple of weeks.” Clemones handed Anderson‘s license back to him and asked for consent to search the vehicle. Anderson told the officer that the car belonged to his mother, but “he said no problem. He stepped out of the car and [Clemones] started the search.” The deputy testified that Anderson was “very cooperative“; that he asked for consent to search “[j]ust one time and [Anderson] hopped right out.” A set of digital scales was found under the driver‘s seat; the scales contained trace amounts of cocaine.
Anderson also testified at the suppression hearing. He testified that Deputy Clemones never told him why he was stopped; he testified that he refused consent to search the car. Anderson stated that, in response to the deputy‘s requests to search, he was “just telling [Clemones] no, it was my mom‘s car.”
The trial court denied the motion to suppress, finding that Clemones had “probable cause” to stop the vehicle by virtue of his past experience with Anderson. In so holding, the trial court made the observation that this Court incorrectly applies Terry v. Ohio,2 “reasonable articulable suspicion” evaluative standard in order to determine the propriety of a traffic stop: “Now the Court of Appeals talks about articulable suspicion. That is wrong.” The trial court stated that, with all due respect to this Court, the deputy‘s pull-over of Anderson was not a “Terry stop“; that a Terry stop applies only,
to frisks or pat-down for weapons when an officer has an articulable suspicion that a person might be armed during a police encounter. You can‘t stop а vehicle on a Terry stop. . . . You may not stop a person‘s automobile without probable cause.
Additionally, in the face of conflicting testimony, the trial court made the credibility determination that Anderson did in fact consent freely and voluntarily to Deputy Clemones’ request to search. Held:
1. In his first claim of error, Anderson contends Deputy Clemones did not have sufficient reasonable suspicion of criminal activity to justify the stop of Anderson‘s vehicle. He argues that the four months between the stop and the information that Anderson‘s license was suspended rendered the suspension information “too remote” to creatе a reasonable suspicion of criminal conduct. We disagree.
Anderson‘s license was suspended by operation of law pursuant to
[Deputy Clemones] stopped [Anderson], in part, based on his prior experience with him and his knowledge that [Anderson‘s] license had been suspended. It would not have been unreasonable for [Clemones] to suspect that [Anderson‘s] license suspension remained in effect and that [Anderson] was violating the law by driving.4
Under this same claim of error, we acknowledge the expressed concerns of the court below regarding the proper analysis for traffic stops. Traffic stop analysis is a legal issue that the Superior Court of Floyd County must employ frequently, and thus, it is a topic that is neither hypothetical, abstract, nor simply academic in that legal community. For this reason, we will afford the superior court‘s concerns our judicial consideration.
This Court maintains a steady vigilance against the hubris of a potential error gone unexamined. Review is required when our attention is directed tо an alleged mistake as pervasive as the use of an incorrect standard for the evaluation of traffic stops would certainly be. Accordingly, we must ask if our legions of cases finding the stop of an automobile proper upon articulation of a “reasonable suspicion” as per Terry v. Ohio are simрly wrong, as maintained by the court below, and whether, as urged below, a “probable cause” standard has indeed been the correct evaluative course all along. To Terry we go for the answer only to find that, as accurately described by the trial court, Terry was directed toward a stop made in order to perform a protective frisk. But, upon a closer reading, we discover that the Terry court utilized the opportunity presented by that case to explore the boundaries of the Fourth Amendment‘s proscriptions against unreasonable seizures on a standard less than probable cause because of the abbreviated, noncustodial nature of a stop made to perform a frisk-type search. To that end,
Prior to Terry v. Ohio, supra, any restraint on the person amounting to a seizure for the purposes of the Fourth Amendment was invalid unless justified by probable cause. Terry created a limited exception to this general rule: certain sеizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime.5
The “Terry Doctrine” has been expanded to other situations involving limited, noncustodial seizures. And following the Terry line of cases, we ineluctably are led to, inter alia, United States v. Brignoni-Ponce,6 Berkemer v. McCarty,7 and United States v. Sharpe,8 wherein the Supreme Court analogized an automobile traffic stop to a “Terry stop” and authorized the evaluation of the propriety of
2. In his last enumeration, Anderson claims that his consent to the search of the vehicle was invalid because it was a product of a “continued detention” after the purpose for thе traffic stop had been concluded. This contention is meritless.
In this case, the traffic stop concluded when Deputy Clemones handed Anderson‘s driver‘s license back to him. The request to search came immediately upon such action, and the request, itself, did not extend the detention. Nor were any additional questions asked so as to make applicable those cases upon which Anderson relies wherein further, unrelated interrogation occurred after the traffic stop had concluded.10 We decline to accept Anderson‘s argument that a request for consent to search, in and of itself, constitutes a continued detention and questioning.11
Meritless also is Anderson‘s contention that he was “not free to go” because Clemones’ vehicle was blocking his. Testimony at the suppression hearing shows that the deputy‘s single request for consent to search occurred before any attempt to leave could pоssibly have been made by either party, and Anderson consented to such search before the issue of departure was presented. Moreover, the evidence shows that Clemones did not deliberately block Anderson‘s car in order to prevent him from leaving, but initially pulled in behind Anderson because he “had to put [his] car somewhere.” Accordingly, it is clear that the position of Clemones’ vehicle did not “prevent” Anderson from leaving; his consent to a search forestalled such act.
Having effected a valid traffic stop, the officer was authorized to request consent to search the automobile. The stop did not exceed the bounds of a brief investigative detention, so [Anderson‘s] consent to search was not the product of an illegal detention. The evidence supports the court‘s finding that his consent was freely and voluntarily given.12
Judgment affirmed. Adams, J., concurs. Ruffin, P. J., concurs specially.
RUFFIN, Presiding Judge, concurring specially.
Although I agree with the result reached by the majority, I write separately to clarify my position that Deputy Clemones’ actions fall on the very cusp of permissible police conduct.
As noted by the majority, the evidence shows that Clemones had reason to believe that Anderson was driving after having had his license suspended. Thus, Clemones was authorizеd to stop Anderson to ascertain whether he had obtained a valid driver‘s license. After Clemones determined that Anderson did have a valid license, Clemones then asked for permission to search the car. In other words, the purpose for the traffic stop was at an end before Clemones sought permission to search the vehicle.
Under the Fourth Amendment, searches and seizures — including traffic stops — must be reasonable.13 Moreover,
if [an] officer continues to detain [a motorist] after the conclusion of the traffic stop
and interrogates him or seeks consent to search without reasonable suspicion of criminal activity, the officer has exceeded the scope of a permissible investigation of the initial traffic stop. This is so because a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.14
Given that the traffic stop was at an end, I am troubled by Clеmones’ decision to ask for consent to search Anderson‘s car. However, in addressing this issue, this Court has focused on whether the officer‘s request results in any further detention of the motorist. Where, as here, an officer asks consent to search immediately following the conclusion of the traffic stop — with no delаy — this Court has found such request does not violate Fourth Amendment principles.15 This is so because it is the detention that makes an officer‘s continued questioning impermissible.16 Accordingly, as the evidence shows that Clemones requested permission to search immediately after concluding the traffic stop and that he did not ask other quеstions unrelated to the stop in order to prolong the detention, his request here did not offend the Fourth Amendment.17 It follows that the trial court did not err in denying Clemones’ motion to suppress.
DECIDED JANUARY 12, 2004.
Hine & Niedrach, Christopher P. Twyman, for appellant.
Leigh E. Patterson, District Attorney, John F. McClellan, Jr., Assistant District Attorney, for appellee.