Lead Opinion
Following a stipulated bench trial, Arthur Phillips was convicted of DUI per se (OCGA § 40-6-391 (a) (5)).
[There are] three fundamental principles which must be followed when conducting an appellate review of a trial court’s ruling on a motion to suppress. 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 them. 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. These principles apply equally whether the trial court ruled in favor of the State or the defendant.
The trial court’s application of the law to undisputed facts is subject to de novo review. See State v. Palmer,
So viewed, the evidence presented at the motion to suppress hearing shows that on the night of August 2, 2012, the arresting officer, a Georgia State Trooper, was patrolling Forest Hill Road in Bibb County The trooper came up behind Phillips’s vehicle and followed Phillips through a series of curves before they approached a stop sign at the intersection of Wesleyan Drive. As Phillips approached the stop sign, he applied the brakes on his vehicle and crossed over the right fog line.
In its order denying Phillips’s motion to suppress, the trial court made the following factual findings:
Mr. Phillips approached the stop sign at the intersection with Wesleyan Drive, [the trooper] observed Mr. Phillips cross the fog line. In his “DPS Incident Report” [the trooper] stated that he “observed a car that traveled into the edge of the grass.” In his testimony at the hearing, he clarified that Mr. Phillips did not reach the grass but in his observation it appeared that the right side of Mr. Phillips’ right tire crossed beyond the right side of the fog line. He then initiated a traffic stop . . . based upon the failure of Mr. Phillips to maintain his lane[.]
Moreover, with regard to the videotape of the stop from the trooper’s dashboard camera, the trial court specifically found:
In this case, the video clearly shows Mr. Phillips’s vehicle going to the right before the stop sign. The tires, at a minimum, reach the fog line, but the clarity of the video does not enable the [c]ourt to make an independent determination as to how far the tires crossed onto and/or over the fog line. The video does not prove or disprove [the trooper’s]*233 description of what he perceived while observing Mr. Phillips on the night of August 2, 2012, and the [c]ourt finds the testimony of [the trooper] to be credible as to what he perceived.
In his sole enumeration of error, Phillips argues that the trooper had no particularized and objective basis for suspecting that Phillips had committed a crime and, therefore, the stop was not justified. We disagree.
There is no violation of the Fourth Amendment protection against unreasonable searches and seizures where a police officer stops a person to investigate the officer’s reasonable suspicion “that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez,
In this case, the issue of whether Phillips crossed the fog line is clearly disputed. The trooper testified that Phillips crossed the fog line as he approached a stop sign, and Phillips claims that he did not. Moreover, our own review of the video shows that it is dark and confirms that the video does not conclusively prove or disprove either the officer’s or Phillips’s testimony Because the video is inconclusive, we must review this evidence in the light most favorable to the trial court’s findings and judgment. Hughes, supra,
Here, some evidence supports the trial court’s findings that the officer’s testimony was credible and that Phillips crossed the fog line — a violation of OCGA §§ 40-6-1 and 40-6-48. Accordingly, the trial court did not clearly err in finding that the officer had reasonable suspicion to initiate the traffic stop based on that traffic violation. See OCGA § 40-6-48 (1); Camacho, supra,
Judgment affirmed.
Notes
Phillips was acquitted of DUI less safe (OCGA § 40-6-391 (a) (1)), and the trial court dismissed a third charge of failure to maintain lane (OCGA § 40-6-48).
Dissenting Opinion
dissenting.
The video recording is not inconclusive. It clearly contradicts the officer’s hearing testimony. I therefore respectfully dissent.
At the hearing, the officer testified that he initiated the stop “when [Phillips] crossed over [the] fog line and up to the edge of the grass[.]” He further testified that he would not stop a car for merely “drifting within a curve.” The video recording, however, shows that Phillips was stopped immediately after his tire touched — but did not cross — the fog line. It most certainly does not show that Phillips drove “up to the edge of the grass.”
It is true that the stop occurred at night. But the fog line is vividly illuminated by reflected light from the patrol car’s headlights. And the contrasting black image of Phillips’s tire is likewise clearly visible.
The majority correctly notes that our standard of review requires us to accept the trial court’s findings on disputed facts and the credibility of witnesses, unless they are clearly erroneous. But we review de novo the trial court’s application of the law to undisputed facts. “And significantly, to the extent that the controlling facts are disputed because they are plainly discernable from the patrol car-mounted video recording, as they are in this case, we review those facts de novo.” State v. Mosley,
To initiate a stop, “an officer must have specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” State v. Simmons,
It is not necessary to reach the question whether the stop could have been justified on the basis that Phillips merely drifted in his lane or that his tire merely touched the fog line. Phillips contends that this
Given the conflict between the officer’s testimony and the video recording, the state’s burden should be to show that it was reasonable for the officer to believe that Phillips had crossed the fog line even though Phillips had not done so. The state should be required to show that despite the undisputed evidence that Phillips did not cross the fog line, the officer nevertheless initiated the stop in good faith. See Valentine v. State,
The issues of whether the arresting officer acted reasonably and initiated the stop in good faith “[give] rise to factual questions and issues of credibility that would be more properly decided by the trial court in this case.” Williams v. State,