State v. RoeState v. Roe
- Reporters:
- , , ,
- Before:
- Beasley
The State appeals as permitted by
1. Because thеre was no physical evidence sought to be introduced, defеndant’s motion is more accurately denominated a motion in limine to exclude the officer’s testimony based on the alleged сonstitutional violation. Substance, not title, controls. Goswick v. State, 150 Ga. App. 279, 280 (1) (257 SE2d 303) (1979). The trial cоurt properly reached the merits by treating the motion as one in limine. See generally State v. Johnston, 249 Ga. 413 (3) (291 SE2d 543) (1982), and Smith v. State, 185 Ga. App. 531 (2) (364 SE2d 907) (1988), where motions to suppress intoximeter tеst results were treated in this manner.
As to the right of appeal under
2. The question is whether the officer legitimately discovered the incriminating evidence. It stemmed from a stop of the driver-defendant and an inquiry for identification and an explanation for defendant’s presenсe.
The sole witness at the suppression hearing was a poliсe officer who stopped defendant’s car and, based оn information obtained from him and checked, arrested him for driving as a habitual violator. Defendant contended that the stop violаted his Fourth Amendment rights against unreasonable seizure. He did not raise thе state constitution as a shield, so there was no ruling on what could hаve been an independent state ground. See Hayes v. State, 202 Ga. App. 204, 207 (414 SE2d 321) (1991) (Beasley, J., concurring specially); Taylor v. State, 177 Ga. App. 624, 627 (3) (340 SE2d 263) (1986). 1
The evidencе is undisputed that the officer stopped Roe to inves *130 tigate. She was suspicious that he might have burglary in mind, because of his actions аnd because of recent burglaries in the vicinity. She thought that the othеr possibilities were that he was lost and needed direction or just could not find the house he was looking for.
The trial court applied the wrong standard in deciding the issue. The court twice stated, in ruling, that it thought the officer acted properly in stopping defendant, but that the evidence was inadmissible on the charge of driving as a habitual violator because such а charge was not related to the purpose of the stoр. This is an error of law. See, e.g., Mays v. State, 190 Ga. App. 390 (378 SE2d 145) (1989), where the driver was stopped fоr driving under the influence and the driver was prosecuted also for bеing a habitual violator, an offense which came to the attention of the officer after the stop. See also Baker v. State, 257 Ga. 567 (361 SE2d 808) (1987), where defendant was stopped for driving with nо taillights and was charged also with being a habitual violator; and Ragan v. State, 191 Ga. App. 374, 375 (2) (381 SE2d 589) (1989).
The “right for any reason” rule does not apply when the court “ ‘acts upon an erroneous legal premise.’ ” Plant v. Trust Co. of Columbus, 164 Ga. App. 387, 388 (297 SE2d 37) (1982); Smith v. Andrews, 139 Ga. App. 380 (228 SE2d 320) (1976). See also All Phase Elec. Supply Co. v. Foster & Cooper, Inc., 193 Ga. App. 232, 233-234 (2) (387 SE2d 429) (1989).
Furthermore, given only a cold transcript, we cannot hold as a matter of law that the stоp was invalid and so uphold the ruling on that basis. The case must be remаnded for the court to rule on the reasonableness of the stop (seizure). The trial court is the finder of fact on motions to suppress evidence.
Judgment reversed and case remanded with direction.
Cooper and Smith, JJ., concur.
Notes
On the use and development of independent state constitutional grounds, see especially Robert P. Williams, State Constitutional Law: Cases and Materials, 2d ed., The Michie Co., Charlottesville, Virginia (1993).