*1 Judgment Pope, J., Andrews, J., reversed and remanded. P. P. Ellington, Phipps Johnson, Barnes, Mikell, JJ., Ruffin, con- Eldridge specially. Blackburn, Miller, J, JJ., cur. C. concur Judge, concurring specially. Blackburn, Chief I agree imprecise language that some (435 690) (1993), Stevens, Crocker clarification. merits
Specifically,
Crocker indicates that the church involved
hybrid
congregational
nature,
therein was
cal,
neither
nor hierarchi-
although
it would have been more accurate to state that the law
applicable
congregational church,
to that
not the church’s classifica-
hybrid
congregational
tion,
awas
blend of traditional
and hierarchi-
jurisprudence.
congrega-
words,
cal
In other
because the church was
nonprofit corporation
tional in nature
internal
form,
but
of its
(a
bylaws using
principles
neutral
of law hallmark of hierar-
jurisprudence)
required
adjudicate
chical
would be
the claims
(a
controlling majority
congrega-
faction
hallmark of
jurisprudence).
resulting hybrid jurisprudence,
tional
This
set forth
389) (1983),
appro-
Jones,
in Reddick v.
priately applied
I concur in the not but its I strongly believe that this, one of the main functions or other constantly ambiguities court, is to refine our case law and remove possible, wherever without harshness. Judge Eldridge I am authorized to state that Miller
join in this concurrence. Decided March 2002.
Hollberg Hollberg, Weaver, & McKee, William B. Townsend Timothy appellants. Townsend, W. for
Macey, Wilensky, Cohen, Kessler, Litwin, Wittner & Richard C. appellees. Andrew Ree, S.
A01A2045. BIUS v. THE STATE. Barnes, Judge. interlocutory appeal, After the of her Sherri Samantha appeals suppress, challenging Bius the denial of her motion to Following searches of her vehicle and her residence. the execution of home, the warrant at Bius was indicted on more than 30 counts identity allegations activity, including fraud, financial of criminal property. by receiving forgery, and theft sup- by denying her motion to contends the trial court erred She press searches because the evidence the evidence seized both during traffic her car resulted from an unlawful the search of seized detention, evidence seized the search of and the *2 search warrant. The warrant home was the result of an unauthorized was vit argues, unauthorized, the information in the affida- she stale, search warrant was the confidential infor- reliability established, warrant relied in mant’s was not and the Although illegally find that seized from her car. we on evidence reverse the denial of that traffic part was not authorized and must regarding suppress, the war- motion to we find no error of Bius’s authorizing Therefore, we affirm that rant portion the search of Bius’s house. suppress. of Bius’s motion to denial applicable appellate court’s review of a trial
1. The rules to an suppress on a motion to were announced Tate v. court’s decision 646) (1994): (1) (440 appellate trial court’s order con- When an court reviews a cerning suppress appellate evidence, the court a motion to guided by principles regard should three with to the interpretation judgment of the trial court’s of the facts. judge, First, when a motion to is heard the trial judge judge sits as the trier of facts. The trial hears the findings upon conflicting evidence, and his evidence based analogous jury are to the verdict of a and should not be dis- by reviewing sup- turbed court if there is evidence to port regard [them]. Second, the trial with to court’s decision questions credibility accepted of fact and must be unless clearly reviewing Third, erroneous. court must construe favorably upholding the evidence most of the trial findings judgment. court’s
(Citations punctuation emphasis original.) omitted;
Further, when
determining probable supported whether cause issuance of a “totality warrant, search of the circumstances” test is issuing magistrate simply employed. The task of the practical, given whether, all make a the circumstances set forth is a fair common-sense decision him, there the affidavit before
probability or evidence of a crime that contraband place. duty [the] particular will be found in a And the reviewing simply magistrate had court is to ensure that a substantial basis cause concluding existed. Sims v. 207 Ga.
2. Bius first contends that the trial court erred her motion to evidence seized after the traffic stop Gwinnett only because the officer because he stopped recognized he stopped previously and because her car had a “drive-out tag.” Bius also contends the search was invalid because the officer exceeded the limited time necessary investigate reason for the See Smith v. stop. (1995). unlawful,
Because we find that we need not address the second prong Bius’s attack.
The officer testified that he Bius because her stopped car was a drive-out displaying he wanted to see if she had owned the car for days. less than 30 He further testified that it was his common practice pull over vehicles that had drive-out tags without dates on them. At the time of the stop, Georgia law had not changed been require expiration date be displayed on the drive-out (b) (2) (B) (i), See OCGA 40-2-8 effective July 2000. The officer *3 did testify, however, not that anything about the of appearance the drive-out led to believe that Bius was violating vehicle (1) registration State, laws. Chiasson Compare 63, v. 250 Ga. 64 App. (549 503) (2001) (officer SE2d authorized to car to investigate whether a car with a faded or weathered drive-out was in compli- laws). ance with registration vehicle (547 (3) 664) State,
In Berry 248 Ga. App. 880 SE2d (2001), this court held that “the critical issue to the validity of a traf- fic is whether the officer had ‘a particularized and objective basis for suspecting particular person stopped criminal activ- ” ity.’ Thus, we considered whether stopping a vehicle awith drive- out tag because such cars might be stolen was authorized under our law and concluded that it was not. Id. at 879-881. Extending that analysis to the present circumstances, we find that a stopping car with a drive-out tag solely ascertain whether the driver was com- with our vehicle plying registration laws is also not authorized. See at 888-890 (Pope, id. concurring The specially). officer this case also “had no ‘particularized objective and basis for suspecting ” of criminal activity.’ [Bius] Id. at 880 He had a mere hunch that the driver and owner of a car with a drive-out not tag might be com- plying registration Therefore, vehicle laws. the traffic stop authorized, was not and the trial court erred the motion as it concerned the items seized search of Bius’s car. this of the trial Accordingly, court’s order must be and remanded to the trial court with direction to reversed motion to on these items. concurrence, joined
In Berry, both-Presiding Judge Pope’s special 888-890, con- four other id. at Ruffin’s judges, „ 883-888, currence, two other id. at called for over- joined by judges, 727) (1994). (440 State, Burtts v. SE2d ruling App. overruled, a clear of this court wanted Burtts our Although Therefore, did not overrule it. we now opinions Berry explicitly accomplish Berry what we overrule Burtts implied expressly which stop solely other cases would authorize a traffic being operated vehicle was with a dealer’s drive-out
3. Bius attacks the affidavit
the search warrant
her residence on the
the confidential
informant’s
theory
reliabil-
ity was not established and the information he provided was stale.
disagree.
We
When
an
determining whether
affidavit
sufficiently
cause,
establishes
we use the
of the
“Totality
circum-
(103
Gates,
stances’
enunciated in Illinois v.
facts, the information previously supplied by informant and the use to which the information was put, provided were in the explicitly affidavit. The third type, elapsed time since the information was supplied, was not provided. however, It is not necessary, that all three types provided information be in every long case so as the magistrate has sufficient information to make independent analy- sis of the informant’s reliability. Pitts v. 797) (1994). Further, the issue of staleness is incorpo-
rated
the broad overview of the
totality
circumstances
test.
Luck,
State v.
The affidavit recites that the informant saw Bius steal mail from post mailboxes, office that she stolen mail at kept home, that-she large quantities mail, of cards, credit bags, mail blank check paper, and stolen identification cards at her home recently as 18-24, July as and that she had been mail stealing for about two years. Further, the informant provided to the officers unopened mail that he took from Bius’s home while he was there to purchase from her in a drugs buy. controlled The who sent this person mail informed the officers that she had mailed the letter and that it never
638 the had investi- further related that officer The affidavit
arrived. gated forgery. identity complaints of fraud numerous provided the in the affidavit Therefore, we find that information prob- concluding provide for a substantial basis was sufficient issuing warrant. Galvan v. existed for the search able cause App. 608, that some of the information 4. Because we have determined illegal search, as the of an we must was result the affidavit obtained remaining in the affidavit whether the information also determine the search Examin to authorize issuance of warrant. was sufficient (1) (a) (361 (Kelly entire the affidavit 659) merely (1987)), Bius note relates that SE2d stopped we by police pos found to a in Gwinnett and was officer keys, personal more than U. S. Postal Service numerous sess approximately and credit cards the names of different checks people, Security in the name of and credit and Social card cards rely upon person. affidavit, however, does not this infor another searching Instead, Bius’s home. the information mation as basis for discussed above in Division formed rant. issuing the basis the war support contains When an affidavit of a search warrant part unlawfully obtained, valid- information which is ity depends of a and search on whether warrant information, itself, untainted considered establishes lawfully probable to issue. If the cause warrant cause and would obtained information amounts justified apart warrant, of from the issuance pursuant information, seized tainted evidence warrant admissible. Rothfuss manner,
863, 864 Considered in that we authorizing warrant the search find that affidavit independent information, of Bius’s home contained sufficient provide probable car, from the search of cause to derived search Consequently, although Bius’s trial court erred home. from the search the motion to the evidence derived car, concerns this error was harmless as it the search Bius’s home. deny
Accordingly, affirm the court’s decision to we trial during the evidence seized the search Bius’s motion suppress the we the denial the motion to evi- home, and reverse the case to the search of her car and remand dence seized suppress the with direction to evidence seized trial court search. *5 direction. in with part reversed in and part
Judgment affirmed Miller, Ellington J., J, Johnson, Eldridge, Andrews, Ruffin, P. P. Blackburn, C. J, JJ, specially. P. concurs Pope, concur. Phipps, in Mikell, J, part. and dissent J, part concur in Smith, concurring specially. Judge, Presiding Pope, write separately but opinion in the fully I concur agreed, already Court have of this judges of twelve that ten out stress tags dealer required law Georgia arising in before even situations the Fourth violation of date, it was a that expiration their show Berry it carried a dealer because solely a car stop Amendment (2001). The reason- App. v. 248 Ga. State, 211 v. Burtts sound, overruling it requires Berry in — 727) (1994) already has not if that case App. by Berry. been overruled require modified to 40-2-8 was time that OCGA
Prior to the officers date, law enforcement expiration show their tags that dealer tags cars with dealer because they grounds that had argued stolen, and (1) be might of those cars knowledge had that some they expired. had tag whether the undated to check to see they wanted 817) (1989) (379 SE2d App. 190 Ga. See, e.g., Watson (check expiration). at 840 (stolen); 211 Ga. App. Burtts argu- held that the first Berry ten-judge majority expressly In and therefore scrutiny constitutional ment could not withstand also held that judges of those same Eight overruled Watson. test, and that failed the same reason, argument identical the second based, Indeed, Burtts was should also be overruled. therefore Burtts in on Watson. part, that, subjective on an officer’s
In this Court held based Watson stolen, the sim tags might that some cars with dealer be knowledge a dealer was an tag a car with driving fact that someone was ple in stopped may engaged persons manifestation “objective App. activity.” criminal aspect judges overruling In ten concurred Berry at 696-697. Ruffin in his by Judge As explained Watson. 248 Ga. at 880 drivers because concurrence, compliant stopping apparently are engaged that some of those drivers danger presented does at the time of the is not observable activity criminal test Del balancing States Court’s Supreme not survive the United LE2d Prouse, 440 S. 648 SC aware v. U. prac the intrusion of a law enforcement balancing
That test requires its pro Amendment interests tice on the individual’s Fourth That interests. Id. at 653-654. governmental motion of legitimate in his foot Ruffin plain by Judge is correct is made Berry decision — more that some cars are stolen it is documented although note 17 others, that in an effort to car argue prevent often than no one would theft, randomly stop anyone driving should be allowed to police cars. one of the most frequently flaw, and, moreover, it is
Burtts contains the identical based Burtts, just In the officer the car over to check pulled on Watson. That expired. to see if the dealer case held there might expired, suspi- undated dealer was articulable Prouse, cion 840. In Delaware v. illegal operation. Court declared unconstitutional random of individual Supreme stops *6 checking cars for the the driver’s license and the car’s purposes valid, see if registration they holding: were in those situations which there is at least articul- except suspicion able and reasonable that motorist is unlicensed or that an automobile is not registered, or that either subject vehicle or an is otherwise to seizure for vio- occupant law, stopping lation of an automobile and detaining driver in order check his driver’s license and the registra- tion are automobile unreasonable under the Fourth Amendment. (VII).
The same reasoning applies Burtts, and in to invalidate drivers have undated dealer in an stopping solely they tags effort to enforce registration something laws. Unless else about an (such faded) old, torn, undated dealer as that it looks or suggests alone, may expired, tag, standing dealer does not pro- Thus, vide an has suspicion expired. articulable Burtts overruled, 1, should specifically arising prior July cases 2000, the effective date of the made to OCGA 40-2-8 that changes § dates on require expiration tags. dealer
Mikell, Judge, concurring dissenting part. I from fully respectfully concur Divisions 3 and 4.1 dissent Division because I believe that of Burtts v. 727) (1994), valid for arising prior cases July 1, 2000, changes the effective date of the made OCGA 40-2- (b) (2) (B) (i). I to the extent agree Burtts July should not be followed for cases after 2000. arising I am authorized to state that Chief Blackburn and Presid- in this dissent. ing Judge join Smith 2002. March
Decided Lancaster, Harsh, for appel- M. Lucas O. Peevy, & Donn Peevy lant. E, Hobbs, General, Baker, Deputy Michael E. Attorney
Thurhert General, General, Attorney Assistant McLaughlin, David S. Attorney for appellee. COMPANY.
A01A2069. PONSE v. ATLANTA CASUALTY Judge. Barnes, Casualty Ponse suit Atlanta against Company
Ebodio faith, and to conse- alleging negligence, bad conscious indifference failing to settle within limits and to defend quences failing policy in an following action automobile accident. Ponse from the trial court’s motion for sum- appeals partial denial his mary judgment and to Atlanta summary judgment Casualty. Because we conclude that of fact exist on the issues in this questions case, we reverse.
The insurance here was first issued Atlanta policy Casualty *7 Raymond wife, Morales in Miriam listing Morales his Morales, as drivers. In the Moraleses added a 1987 Chevrolet Celebrity to the policy. 5,1994, September Ponse,
On while who is driving Celebrity, son-in-law, the Moraleses’ was involved an automobile accident by Crystal accident, with a car driven Wilson. At the time of the under driving Ponse the influence of alcohol and without a Ponse, license. Before suit filing against attorneys Wilson’s made two upon Casualty settlement demands Atlanta limits of policy $15,000, which were Atlanta fil- rejected by Casualty. day before suit, Wilson’s counsel sent a to Atlanta copy Casualty. the suit Casualty The cover letter informed Atlanta the suit was being day forwarded that to the State filing. Gwinnett Court for day, The suit was filed the next Casualty and Atlanta received its 25, 1996, on copy January day after it was filed. Neither Ponse nor Atlanta an answer Casualty complaint. filed The trial court entered a default Ponse in the amount subsequently $163,554.45. Casualty Ponse sued Atlanta to settle within failing limits and policy failing underlying to defend action. above, In addition to facts cited the record shows that Ponse 1, 1996, sought lawyer February advice from a on and he with him the service with which he was copies pleadings