THE STATE v. BIBBINS
A04A1305
Court of Appeals of Georgia
December 1, 2004
Reconsideration Denied December 16, 2004
271 Ga. App. 90 | 609 SE2d 362
ELDRIDGE, Judge.
In construing the present
Under these circumstances, I cannot agree with the majority‘s determination that the City of Atlanta‘s remaining interest was subject to taxation by Clayton County. Therefore, I must respectfully dissent.
DECIDED DECEMBER 1, 2004 —
RECONSIDERATION DENIED DECEMBER 16, 2004 —
Smith, Gambrell & Russell, Edward K. Smith, for appellant.
Hancock & Palmer, Jack R. Hancock, Brian R. Dempsey, for appellee.
A04A1305. THE STATE v. BIBBINS.
(609 SE2d 362)
ELDRIDGE, Judge.
The State appeals from an order granting Stephen Ralph Bibbins’ motion to suppress drugs found pursuant to an alleged consent search conducted during the course of a valid traffic stop. The trial court did not make a factual finding about whether consent was actually obtained. Instead, the court determined that the detaining
While traveling on Interstate 75 on June 5, 2003, Special Agent Alex Bauch of the Griffin-Spalding Narcotics Task Force stopped a truck driven by Bibbins after the truck crossed the fog line. Bauch approached the vehicle, obtained Bibbins’ driver‘s license, noted that Bibbins had a Florida address, and informed him that he had been stopped for crossing the fog line. Bauch then ran Bibbins’ license information through the police computer and discovered no problems. He returned to Bibbins’ truck and, just before writing a citation for failure to maintain lane, stated, “Do you mind if I ask you a question?” When Bibbins responded, “Sure,” Bauch told him that Spalding County had a problem with “people driving through with large amounts of drugs, marijuana, and guns, and currency related to the drug trade.” Bauch then asked Bibbins whether he could search Bibbins’ vehicle for contraband. At that point, Bauch was still holding Bibbins’ license in preparation for writing out a traffic ticket. Based upon Bibbins’ reply, a search was conducted and approximately four pounds of marijuana was discovered. The officer then arrested Bibbins and cited him for the drug possession and the lane violation.
Held:
By this appeal, we are squarely presented with the opportunity to address an issue that — as the transcript of the motion to suppress hearing amply demonstrates — has caused considerable consternation in law enforcement circles, as well as with bench and bar, i.e., whether asking for consent to search for drugs during the course of a brief, ongoing traffic stop can, in and of itself, be a Fourth Amendment violation so as to make a valid detention “illegal,” thereby rendering any consent to search the product of such illegal detention. This Court welcomes the chance to consider this issue, since the confusion that can be generated by the application of Fourth Amendment legal principles in the “real world” has not gone unnoticed. We who parent wisdom through written opinion also recognize that “[m]ore wisdom is latent in things as they are than in all the words men use.”1 So, a pragmatic deliberation encompassing the views of other jurisdictions on this issue is warranted and due.
1. In the field, even when officers have no basis for suspecting a person, they may approach and request consent to search for drugs.2 This is a “first tier” encounter, and the request to search, itself, does
What an anomalous result. Approaching a person to request consent to search causes him to stop for at least the time needed to hear the request and respond, which delay could be called a “detention,” though it is not. Yet the same request asked of someone already lawfully detained causes no undue delay, but is considered by the dissent to create an unlawful “detention.” If a request to search does not turn a first tier encounter into an invalid detention, the same request does not turn a second tier encounter into an invalid detention. After all, a refusal is an authorized result in both instances. Rather, “police questioning, by itself, is unlikely to result in a Fourth Amendment violation.”4 Indeed,
a police officer‘s questioning, even on a subject unrelated to the purpose of the stop, is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure. . . . [T]he issue regarding unrelated questions concerns not the content of the questions, but their impact on the duration of the stop. . . . Therefore, only unrelated questions which unreasonably prolong the detention are unlawful; detention, not questioning, is the evil at which Terry‘s prohibition is aimed.5
In State v. Gibbons,6 this Court considered a Terry detention in which an officer instituted a valid traffic stop for a seat belt violation, but he performed no act necessary to discharge the duties that he had incurred by virtue of the traffic stop: he did not conduct a license check, vehicle check, or insurance check; and he did not make any inquiry relating to the traffic violation for which the stop was made. Nor did he ever indicate that the detainee would be cited for a seat
It must also be understood that the duration of a traffic stop is not synonymous with its “scope,” and for several years now, this has been a gray area. The issue of the “scope” of a search and seizure was first articulated in Terry, itself, where it was held that a search and seizure must be “reasonably related in scope to the circumstances which justified the interference in the first place“;10 to that end, a traffic detention “must be temporary and last no longer than is necessary to effectuate the purpose of the stop.”11 A simplistic interpretation of the term “purpose” might propel the conclusion that it refers to only the specific traffic offense that inspired the pull-over, and thus, any action or inquiry unrelated to that specific traffic offense is impermissible. But to accept this interpretation would be to deny the realities of a traffic stop, which has as its “purpose” the enforcement of traffic laws for highway public safety,12 and in which law enforcement has never been restricted simply to writing out a ticket and ending the encounter. Instead, an officer‘s duties relative to any traffic detention have always included a computerized check of license, registration, vehicle identification number (VIN), and identification, regardless of the specific violation involved. “The foremost method of enforcing traffic and vehicle safety regulations, it must be
[Defendant] argues . . . that the very asking of the first question about drugs and firearms, without a reasonable suspicion that he possessed either, transformed the legal stop into an illegal stop, making his consent automatically invalid. In Robinette, [supra,] the police asked the suspect the same question, immediately followed by a request to search, just as in this case. The [United States Supreme] Court in Robinette did not expressly decide whether the asking of this question and asking permission to search violated the Fourth Amendment. However, we have difficulty in reconciling its conclusion — that Robinette‘s consent to search, if voluntary based on all the circumstances, is valid — with [defendant‘s] proposition that the consent is invalid solely because the officers could not legally ask to search in the first place.22
This Court‘s long-held position on this issue is illustrated as follows:
This holding and the numerous cases which reflect it have never been overruled and are binding authority on this Court.
Truly, from the sheer volume of cases cited, both supra and by the dissent, it bears recognition that the disarray generated through the practical application of complex Fourth Amendment issues is extensive. Conflict exists. Yet, it is not only incorrect but a deep oversimplification to say, as the dissent has, that the Eighth, Ninth, and Tenth Circuits “have held that an officer may not ask questions during a traffic stop that are unrelated to the purpose of the original stop.” Such a blanket statement ignores the struggle these circuits have had with this issue, a struggle that mirrors our own. Like here, there is a “split in authority” within the circuits themselves. Scratch the surface of any of the cases cited by the dissent, and additional cases revisiting the issue for an alternate result will be revealed. For example, the dissent‘s multiple cites to the Tenth Circuit case, United States v. Holt,24 for the proposition that questioning, itself, may be a Fourth Amendment violation ignores that circuit‘s more recent foray into this arena, United States v. Oliver.25 Oliver went to great lengths to distinguish Holt, asserting that Holt had not meant to go as far as some might have it; that Holt stood only for “reasonableness” in any detention and that, “[q]uestioning in itself does not constitute a search or seizure.”26 Indeed, Oliver reaffirmed the Tenth Circuit‘s prior statement in United States v. Walker:27
[O]ur determination that the defendant was unlawfully detained might be different if the questioning by the officer did not delay the stop beyond the measure of time necessary to issue a citation. For example, this case would be changed significantly if the officer asked the same questions while awaiting the results of an NCIC license or registration inquiry.28
The point is that the mixed messages reflected in the case law demonstrate the slippery slope of confusion created when Fourth Amendment search and seizure law is used to control perceived police abuses against which the Fourth Amendment was never designed to protect. That police questioning occurs during a traffic seizure does not make the questioning a Fourth Amendment issue; the seizure is. And the dissent‘s justification that this issue is “far from settled” in other jurisdictions is hardly a rationale to leave it so in this one.29
Today, this Court takes a step toward clarity, as have the courts from many other jurisdictions. We reaffirm the long-standing precepts addressed above, recognizing that the “scope” of a traffic detention has never been limited to the isolated traffic offense that led to the pull-over, but is broad enough to encompass identified, legitimate law enforcement goals relating to highway public safety, as long as the pursuit of those goals does not unreasonably prolong the duration of a valid, ongoing stop.30
2. In a hearing on a motion to suppress, the focus on the unreasonable prolongation of the duration of an ongoing, valid traffic investigation — decided on a case-by-case basis — precludes a deliberate delay in issuing a citation while conducting a lengthy “fishing expedition,” as occurred in the Gibbons case. In assessing whether a valid, ongoing traffic investigation is too long in duration
In the case before us, the evidence is that the brief, nine-minute traffic detention had not been concluded at the time the officer requested consent to search. During the ongoing detention, the record shows that the officer conducted a license and insurance check; that the checks were diligently pursued; that the officer was holding Bibbins’ license in preparation for writing out a traffic citation; that the request for consent to search was made immediately after the license was checked and just before the ticket was written and thus the request, itself, did not cause unreasonable delay; that the search allegedly agreed to by Bibbins postponed the issuance of the lane
3. Having concluded that the officer‘s request to search Bibbins’ car for contraband did not render the otherwise valid traffic stop an illegal detention, another issue remains: whether Bibbins voluntarily consented to the search of his car. The analysis of this issue should not be confused with the analysis discussed above. The question of whether the duration of an ongoing, valid traffic detention and investigation is “reasonable” involves a separate inquiry. If the answer is no, an illegal detention results. At that point, it matters not whether the stop was “ongoing” or “concluded,” the issue remains the same: whether the subsequent consent was the product of the prior illegality or sufficiently attenuated therefrom.37
If, however, as in this case, the duration of the ongoing detention and investigation was reasonable, the question is whether objective factors demonstrate that the detainee‘s consent was voluntary. In that regard, the circumstances surrounding a traffic stop do not in and of themselves prevent a detainee from voluntarily consenting to a search of his vehicle. As the United States Supreme Court explained in its examination of the issue of voluntary consent during a traffic stop,
There is no reason to believe, under circumstances such as are present here, that the response to a policeman‘s question
is presumptively coerced; and there is, therefore, no reason to reject the traditional test for determining the voluntariness of a person‘s response.38
This traditional test looks to the totality of the circumstances, including factors such as the youth of the accused, his lack of education, his lack of intelligence, the length of detention, whether there was an advisement of constitutional rights, the repeated and prolonged nature of any questioning, the use of physical punishment, and the psychological impact of all these factors on the accused; certainly, no single factor is controlling.39 Further, advisement of the right to refuse is a consideration, but it is not determinative.40 Altogether, the role of filtering the wheat from the chaff in relation to the voluntariness of any consent belongs to the trial court. The appellate courts cannot judicially legislate against the potential for coercive police conduct in attaining voluntary consent anymore than we can ignore the legality of a search carried out after consent has been voluntarily given.
The problem of reconciling the recognized legitimacy of consent searches with the requirement that they be free from any aspect of official coercion cannot be resolved by any infallible touchstone. To approve such searches without the most careful scrutiny would sanction the possibility of official coercion; to place artificial restrictions upon such searches would jeopardize their basic validity.41
We leave the role where it belongs. In the case before us, the trial court declined to make a factual determination as to whether consent was given and, if so, whether such consent was voluntary. We remand this case to the court below for this determination, with a right to seek an appeal through established channels, depending upon the result.42
Judgment reversed and case remanded with direction. Andrews, P. J., Johnson, P. J., Miller and Ellington, JJ., concur. Ruffin, P. J., and Adams, J., dissent.
RUFFIN, Presiding Judge, dissenting.
Because the majority‘s opinion effectively overrules established
This case revolves around Stephen Ralph Bibbins’ alleged consent to the search of his vehicle during a traffic stop. Recently, our Supreme Court set forth a framework for analyzing the validity of such consent. First addressing the limits of a traffic stop, the Court in Daniel v. State noted that
[t]he officer‘s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention.45
A traffic stop usually should last no longer than necessary to complete the purpose of the stop, and its scope ” ‘must be carefully tailored to its underlying justification.’ ”46 Thus, under Daniel, the initial question is whether the police inquiry exceeded the permissible limits of a valid traffic stop. If the inquiry fell within those limits, the detention was lawful, and we address whether consent made during the lawful detention was voluntary.47 But, if the police inquiry exceeded the stop‘s legal limits, we must analyze the constitutionality of the expanded encounter and determine whether it violated the Fourth Amendment.
Extending an encounter beyond the initial stop is not always unconstitutional.48 As found in Daniel,
lengthening the detention for further questioning beyond that related to the initial stop is permissible in two circumstances. First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has
occurred or is occurring. Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter.49
Once again, if the extended encounter was permissible under the Fourth Amendment, we immediately consider whether the consent was voluntary.50 If the encounter constituted an illegal second detention, however, we then determine “whether the consent was given voluntarily (under the totality of the circumstances test) and whether that consent was sufficiently attenuated from the unlawful seizure so that it was not the product thereof.”51
The Daniel framework — which binds this Court — thus presents three questions for analysis: (1) Did the police inquiry extend beyond the limits of the original traffic stop? (2) If so, was the extended encounter legal under the Fourth Amendment? and (3) If consent resulted during an illegal detention, was it both voluntary and sufficiently attenuated from the unlawful detention that it was not the product thereof? I will discuss each question in turn.
i. Although the majority does not address the Daniel framework, the basis of its opinion appears to involve the first question. According to the majority, Special Agent Bauch‘s request for consent to search Bibbins’ truck did not extend the original traffic stop. I strongly disagree.
As we found in State v. Gibbons, a case in which three members of the current majority joined, and the author of the current majority dissented, “[a]n officer who questions and detains a suspect for reasons other than those connected with the original purpose of the stop exceeds the scope of permissible investigation unless he has ‘reasonable suspicion’ of other criminal activity.”52 Gibbons is not alone in this pronouncement. We adhered to such principle before Gibbons, and we have followed it since.53
Moreover, I can find no reasonable distinction between this situation and several of our prior decisions. In Habib v. State,54 for example, an officer stopped a car for a seat belt violation. While speaking with the car occupants, he noticed that both the driver and passenger had dry mouths, which the officer believed to be consistent with marijuana use. The officer obtained permission to search the passenger, and the search revealed the odor of marijuana. The passenger admitted to smoking marijuana the previous day, and the officer at that point ” ‘felt like’ both men had been smoking.”55 The officer then obtained consent to search the driver, which produced no contraband, and consent to search the car, which revealed marijuana in the back seat. During this encounter, the two men were not free to leave, and the officer held the driver‘s license.
The trial court granted the driver‘s motion to suppress, determining that the officer lacked articulable reasonable suspicion to expand the traffic stop and launch a drug probe. It concluded that the officer proceeded on a ” ‘mere hunch’ ” based on the car occupants’ dry mouths. We affirmed the trial court‘s decision, finding that the officer impermissibly exceeded the scope of the stop by conducting a drug investigation without reasonable suspicion.56
Similarly, in Smith v. State,57 an officer stopped a motorist for a suspected drunk driving violation. The officer questioned the driver about his manner of driving, but the driver had no odor of alcohol on his breath, and the officer did not administer any field sobriety tests. Instead, the officer requested consent to search the driver‘s truck. When the driver refused, the officer asked whether the driver had
The trial court denied the driver‘s motion to suppress, and we reversed.58 We concluded that, without reasonable articulable suspicion, the officer asked the driver questions “that did not relate to his suspicion that [the driver] was driving under the influence and that did not relate to any traffic violations, but instead probed into [the driver‘s] possession of contraband, specifically narcotics, and culminated in the officer‘s request to search [the] truck.”59 We found that such probe illegally exceeded the permissible scope of a DUI investigation.60 Thus, because the officer discovered the marijuana during an illegal detention, it should have been suppressed.61
Under established Georgia precedent, Special Agent Bauch exceeded the permissible limits of the initial traffic stop when he delayed the conclusion of that stop, commenced an unrelated drug inquiry, and asked consent to search Bibbins’ car.62 To find otherwise effectively overrules extensive case law.63
In its opinion, the majority asserts that Bauch‘s request for consent to search did not unreasonably prolong — and thus did not impermissibly extend — the traffic stop. In several recent cases, we have indicated that “only unrelated questions which unreasonably prolong the detention are unlawful.”64 I question whether such language properly follows the mandate that an investigative stop last no longer than necessary and have a scope carefully tailored to its underlying justification.65 Clearly, scope and duration are not synonymous. And I cannot agree with the majority‘s suggestion that a drug inquiry conducted during a routine traffic stop in which the officer has found “no problems” somehow relates to issues of traffic safety and enforcement.66
This is not a situation in which an officer asked for consent to search while writing a traffic ticket, thus obtaining consent without prolonging the detention.67 On the contrary, Bauch‘s actions unreasonably delayed the progression and conclusion of the stop.68 Regardless of the delay‘s length, it extended the detention beyond that necessary to effectuate the stop‘s purpose.69 This is the simple and single moment of analytical significance. Even the majority‘s author has noted previously that a prolonged detention results when “[an] officer — without an apparent valid purpose since no investigation was being conducted into the traffic violation authorizing the stop — retained the detainee‘s identification materials.”70
Although the State bears the burden of proof,71 it presented no
2. The question thus becomes whether this prolonged encounter was constitutionally permissible. The State does not claim that Bauch had reasonable articulable suspicion to extend the stop. Instead, it contends that the stop became a consensual encounter during which Bibbins agreed to additional questioning, as well as the search of his truck. We must consider, therefore, whether the initial detention de-escalated into a consensual police-citizen encounter not implicating the Fourth Amendment.73
A consensual police-citizen encounter “has been defined as simply the voluntary cooperation of a private citizen in response to non-coercive questioning by a law enforcement official.”74 And an encounter constitutes “voluntary cooperation” if, given all of the surrounding circumstances, a reasonable person would have believed that he was free to leave.75 In other words, no seizure occurs as long as a citizen feels free to disregard an officer‘s questions and walk away.76
Although distinguishing a consensual encounter from a seizure is “necessarily imprecise,’ ”77 our Supreme Court has found that ” ‘an encounter initiated by a traffic stop may not be deemed consensual unless the driver‘s documents have been returned to him.’ ”78 We have similarly concluded that no reasonable person would feel free to leave a traffic stop before receiving his or her copy of the traffic citation.79
The record shows that Special Agent Bauch sought and obtained the alleged consent before returning Bibbins’ license or writing Bibbins a traffic citation. As a matter of law, therefore, Bibbins was not free to leave, and the traffic stop had not become a consensual encounter. Consequently, the continued detention, which extended
3. The final relevant question involves the validity of Bibbins’ alleged consent. As found by the Supreme Court, “[e]ven where the driver and vehicle occupants have been illegally detained, the driver or owner of the vehicle may nonetheless voluntarily consent to a search of the vehicle.”81 Once again, the State bears the burden of proving such consent to be voluntary, and this burden is particularly heavy when the consent follows an illegal detention.82 Furthermore, if
an individual is illegally seized, searched or arrested, any consent obtained thereafter must be analyzed to determine both whether the consent was given voluntarily (under the totality of the circumstances test) and whether that consent was sufficiently attenuated from the unlawful seizure so that it was not the product thereof.83
The trial court did not specifically address the issue of consent. But even if Bibbins voluntarily agreed to the vehicle search, I believe that, as a matter of law, the illegal detention tainted the consent because the record reflects that the purpose of the continued detention was to request such consent. Under similar circumstances, we have held consent to search to be a product of the illegal detention in violation of the Fourth Amendment.84 Precedent controls and takes note of similarities as well as sameness.
4. Having applied the analytical framework set forth in Daniel, I conclude that the trial court properly granted Bibbins’ motion to suppress. The State cannot establish that Bibbins validly consented to the search of his truck. The majority‘s effort to find otherwise eviscerates significant case law and undercuts the Fourth Amendment. As a result, the bench, bar, and law enforcement personnel are left without guidance as to what officers can and cannot do during a traffic stop, a condition which the majority claims to correct.
I am authorized to state that Judge Adams joins in this dissent.
ADAMS, Judge, dissenting.
I concur fully in Presiding Judge Ruffin‘s dissent but write separately to note that (1) there is a split in the federal circuits regarding the main question presented; (2) federal circuit court opinions on this matter are not controlling on this Court; (3) the United States Supreme Court has limited the scope of permissible investigation in the related area of roadblock cases, to not include ordinary criminal wrongdoing such as illegal drug activities; (4) the result suggested by the dissents is not anomalous; and (5) the posture of this case on appeal and the record before us raises questions.
1. The primary question debated in this case is whether an officer may, during the course of a traffic stop, question the driver and request consent to search, on a subject unrelated to the purpose of the stop, without articulable suspicion of other illegal activity, such as drugs. The majority relies in part on the Eleventh Circuit case of United States v. Purcell, 236 F3d 1274, 1279-1280 (11th Cir. 2001), for the proposition that the only constitutional concern raised by such questioning is “not the content of the questions, but their impact on the duration of the stop.” What the majority fails to note is that the Eleventh Circuit‘s comments that it recites were only meant to describe the Fifth Circuit‘s reasoning on the matter. In fact, in Purcell the Eleventh Circuit did not establish or adopt any particular guideline or test to determine when the scope of the stop has been exceeded. Id. Instead, the Eleventh Circuit Court simply “recognized that there are two possible tests for when a police investigation exceeds the scope of a routine traffic stop.” United States v. Boyce, 351 F3d 1102, 1111 (11th Cir. 2003). Indeed, the federal circuits are split on this very question.
The Eighth, Ninth, and Tenth Circuit Courts have held that an officer may not ask questions during a traffic stop that are unrelated
2. Moreover, a federal circuit court‘s opinion on this issue is not binding on this Court, but merely persuasive authority.88
3. The majority also appears to reason that questions about drug trafficking on our nation‘s roads are properly within the legitimate scope of all traffic stops. But as shown above, the federal circuit courts are split on this issue and the United States Supreme Court has not spoken.89 Furthermore, in an instructive and possibly analogous case, the United States Supreme Court has held that roadblock/checkpoints contravene the Fourth Amendment if they are established for the primary purpose of detecting evidence of ordinary criminal wrongdoing, such as illegal drug activities. City of Indianapolis v. Edmond,
4. The majority contends that a restriction during a traffic stop on an officer‘s ability to request consent to search for drugs produces an anomalous result. The majority relies heavily on the idea that police questioning, in and of itself, does not constitute a seizure for Fourth Amendment purposes, see Florida v. Bostick, 501 U. S. 429, 434 (111 SC 2382, 115 LE2d 389) (1991), and on the argument that what is allowed at a first-tier stop cannot be improper at a second-tier stop.
But, as our own Court has noted, at a first-tier stop officers may “ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.” (Citation and punctuation omitted; emphasis supplied.) Akins v. State, 266 Ga. App. 214, 215 (596 SE2d 719) (2004). This distinguishes a first-tier stop from a second-tier stop, which, as is well established, is a temporary detention that constitutes a seizure within the meaning of the Fourth Amendment. Whren v. United States, 517 U. S. 806, 809-810 (116 SC 1769, 135 LE2d 89) (1996). Similarly, as the United States Supreme Court has made clear, “[s]o long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.” (Citations and punctuation omitted.) Florida v. Bostick, 501 U. S. at 434. In other words, although questioning alone is not a seizure, at a second-tier stop, the person is already seized. The tier system is based on the idea that more and more justification is required for police actions as the level of detention increases. Accordingly, it is not anomalous that during a traffic stop, police are required to have articulable suspicion to question a person about a nontraffic topic.
I can tell you what I can do. I can just make the decision and give y‘all discretionary appeal and let you take it up there and straighten it out. . . .
Defense counsel suggested that the court rule in such a way so as to avoid having an interlocutory appeal. The court apparently agreed, and it decided to grant the motion to suppress so as to allow a direct appeal. Defense counsel commented, “... it‘s an adversarial system but we‘re together wanting to know what the answers are type thing [sic].”
On appeal, the only “stipulation” of facts before this Court is an attachment to both the State‘s and the defense‘s brief in which both counsel agree that the “Statement of Facts” section of their briefs shall constitute the “facts that would be adduced at trial.” This Court may not consider documents attached to appellate briefs. High Voltage Vending v. Odom, 266 Ga. App. 537, 538 (597 SE2d 428) (2004). “Nevertheless, where ‘facts . . . necessary for disposition are stated in a brief, and the State concedes such statement is substantially correct, we are permitted to reach a decision upon the agreed upon facts.’ ” (Citation and punctuation omitted.) Williams v. State, 253 Ga. App. 10 (557 SE2d 473) (2001). Oddly, however, the one thing that is not stipulated is what the defendant said in response to the question of whether he would agree to a search. The parties agree that Bibbins‘s answer to the request for consent to search is inaudible on the video tape. Ultimately, Bibbins‘s answer proved irrelevant based on the law in Daniel v. State, 277 Ga. 840 (2) (a) (597 SE2d 116) (2004).
We caution the bench and bar that appeals may not be manufactured by the parties. The trial court should give full consideration of the merits of issues raised below based on the law and the facts as presented to it. It makes this Court‘s job much more tedious and difficult if it is required to sort out questions of whether proper procedure has been followed.
RECONSIDERATION DENIED DECEMBER 16, 2004 —
William T. McBroom, District Attorney, Thomas J. Ison, Jr., Assistant District Attorney, for appellant.
Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Ronald J. Ellington, for appellee.