*1 MсMurray, J., Case No. A96A0750. J., P. and Ruffin, concur. April 29, 1996.
Decided Joyner, appellants. Gordon L. for Higdon
Chambless, Carson, & Richardson, Thomas F. Swift, Christopher Currie, appellees. Hiers, McGhee & Balch, D. A96A0460. THE STATE v. WRIGHT. Presiding Judge.
Birdsong, appeal by This is an the State of the order of the trial court granting appellee Wright’s Russell P. motion to dismiss.
Appellee was issued a traffic citation for DUI. The trial court, cit- ing 492), granted Golden, appel- grounds lee’s motion to dismiss on the particularized susрicion justify officers had no the initial who was driving his vehicle; rather, motor the court concluded the initial “merely was conducted to make sure that no criminal violations had place.” taken Investigator Lowry County Department of the Houston Sheriff’s patrol dispatch regard- his unit when he monitored a call from
ing placed a lookout “cutting on a vehicle which had been obsеrved doughnuts Dispatch provided reported behind a church.” location description of the vehicle and two uniformed officers in another patrol Lowry proceeded unit were sent patrol to the church. As in matching unit reported residence, toward his a vehicle passed coming vehicle him. The vehicle was from and was approximately only yards Lowry from the сhurch. turned his unit attempting subject around and was to catch the vehicle when the caught up Lowry. Lowry other unit then observed the sus- pect definitely “weaving”; “swung vehicle the vehicle over” and made yet subject another turn. When the driver of turned, “he actually right made it so wide that he went off the side of the road.” Lowry trailing patrol going advised attempt unit that he was light. to proceeded patrol the vehicle and then activated his blue The vehicle stopped. trailing to an intersection and The officers in the ensuing investigative car handled the detention which appellee’s Lowry culminated in DUI citation. When commenced to suspect any follow the vehicle, he did not it was involved in kind of activity general description criminal out.” “other than it fit the of the loоk- personally investigate the incident and did not citations. dispatched initially had been uniformed officers green being dispatcher blue informed church after parking pickup lot was in the church’s back cab cover truck doughnuts.” “spinning lot when The truck was not scene; however, circular tracks were observed at the arrived *2 dispatched driving. vehicle then The where the truck had bеen Lowry stating a vehicle he was call from received a giving question in and the of the vehicle that matched them Lowry caught up dispatched and The with his location. vehicle approxi- subject line the vehicle “cross the center divider “erratically mately “an turn” or swerve” four times” and make erratic signal”; adjoining using the vehicle “cut onto road without “a turn up taking The officers the he the other lane.” fol- curb because ended pull- turned, “decided to do our vehicle lowed the as it and dispatched then activated its flasher over at that time.” The lights Lowry light. stopped Appellee also activated and his blue investigative vehicle, and detention commenced. The exited his apprehending stopped, why being appellee if knew hе was officer asked appellee responded thought driving for the he he was doing the at church. apprehending church, the at the he believed a When officer was driving appellee there; however, “reckless had occurred” crime of relating charged driving not The or other crime thereto. with reckless appellee apprehending a ticket for reckless officer issue appellee driving, he admitted had because before he was Mirandized already “probable had been at the church the officer appellee driving DUI”; further, the did not see cause for the officer arresting the The officer a church. also elected to failing failing signal a lane, turn, maintain his for to or citation for although making turn, incidents for a wide the latter two were report. citation these recorded in his He did not issue a for offenses giving probable examples were rise to cause incidents point adding charges DUI, the he saw no in further the arresting supervisor, shift DUI citation. The who also in officer’s basically dispatched patrol unit, testified and confirmed testi- mony catching officer. He further testified that after wеaving. up pursued that the vehicle was The saw weaving kept vehicle was under observation and was observed over couple and, a of more when it turned without centerline times giving signal, his unit then in and “initiated the called (Emphasis pulled supplied.) Appellee at that time.” his vehicle over flashing lights. supervisor response in The shift was con- units’ appellee’s driving under the indicated he wаs cerned because conduct having beverages, problems with his influence of alcoholic could be help. Appellee’s driving steering, might in conduct con- be need of uniform rules of the road. technical violations of the stituted investigation church, observed, before made shortly somebody had been there revealed evidence unsafe lot. officers and was mаnner Held: rulings appeal does not a trial court’s on dis- “This involve credibility suppression hearing,
puted be facts and at a which must accepted by reviewing clearly erroneous, [cit.], court unless as ‘(t)his judice Rather, not in court’s case sub conflict. responsibility reviewing the trial court’s decision on a motion suppress is to was a substantial basis for deci- ensure there (Cit.)’ [Cit.]” McFarland, sion. 314). supra, misplaced; Golden,
2. The trial court’s
reliance
is
distinguishable.
Golden,
In
Golden is
vehicle was not observed
committing
stop;
stopped
traffic violations before the
it was
distinguishable
confirm that no crime had been committed.
Also
Jorgensen
where the officer
solely
detained defendant
avoided roadblock.
on his intuition that
defendant
*3
suppression hearing testimony
investigаtor
3. The
of the
and
and
by
Appellee
stopped
officers
simultaneous
not refuted.
combined
Investigator Lowry
actions of
of
in the
officers
dispatched patrol unit.
“ Although
may
investigative stop
officer
an
conduct a brief
of a
justified by specific,
vehicle, such a
must be
articulable
suf-
give
suspicion
ficient to
rise to a reasonable
of criminal conduct.
Investigаtive stops
analogous
(Terry
Terry-stops,
of vehicles are
v.
(88
889) (1968)),
Ohio,
Additionally, from both the radio call received pro- apparently observation, a concerned citizen’s vehicles, based on description suspect incident, of the the location of the vided driving reported. type simultane- Almost and a ously Investigator *4 approximately departing a yards matched the vehicle “lookout” lot which 400 from patrol description. his loca- and informed them of called the unit He police following which the vehicle. “Information and that he was tion transmit by any accepted communication, means of another, to one suspicion grounds provide an articulable war- to create can ‘sufficient vehicle].’[Cit.]” stop [appellee’s ranting v. Walton cause to reasonable (2) (390 896); App. see also State State, SE2d 194 Ga. 312) (radio (265 report App. to investi- Thomason, 345 SE2d 153 Ga. 206 wheel).
gate person slumped patched steering Also, over the officers dis- possession to the church were of tire-track evidence that provided reliability report. an indicia of for the concerned citizen’s supra, App. McFarland, State, 197 Johnson (398 SE2d Based on information from the radio calls and their personal tracks, tire observation of the the officers in the unit forming, prior stop, would have a basis for to the an sus- articulable picion reported that the vehicle driver had committed the reckless (a) (2) generally §§ 40-6-390, offense. See OCGA 40-6-3 (422 (3); App. State, Chavous v. 205 Ga. SE2d suppression hearing transcript sup- contains no evidence to port finding simultaneously the law enforcement officials stopped appellee’s pretext. Further, vehicle on mere the trial court’s finding suspi- that the law enforcement officials had no articulable concerning appellee cion dence of record basis; is without substantial unrefuted evi-
provides ample evidence of articulable prior investigative stop. various traffic violations McFarland, supra. provides finding Also the record no substantial basis for the that the sole reason for the was to make sure that no criminal place. violations had taken (319 Appellee, citing App. (2) (282 State, Thomas v. 171 Ga. SE2d
511), 677), State, and Smith v. 20, 159 Ga. required suspi asserts that a officer is have pursuit following cion before he can commence or even the mere Specifically, appellee citizen. contends that the officers and investi gator lacked commenced follow ing stopping appellee, his vehicle and thus the even after he com mitted violations, observed traffic was tainted. “ ‘“ frequently opined, £[w]here This Court has no circumstances appear might give at all rise . . . detaining that vehicle and its violated, the law has been the act of occupants judged impermissible must be as an intru ” ’” (Citations rights emphasis sion of the citizen.’ omitted; supplied.) 60); Weaver v. 105, 208 Ga. 106-107 295); Holton, 435-436 Fowler Brooks v. App. 109, 111-112 cases, however, These focused on the intrusion caused the ultimate detention of the citi authority supporting appellee’s zen and are not contention. supra, supra, factually Thomas, Both Smith, also are distin- guishable. Thomas holds the they stopped transporting robbery perpetrators.
the car Smith, (2), supra speed- at 22 held that the acts of the defendant in ing ing suspected burglary “floorboarding” site, from and in and mak- policeman pointed
an evasive turn with the car it, after a
207
following
police
justify
car.” Neither
the
the
“would
affirmatively
articulable sus-
addresses whether
Smith
Thomas nor
police
picion
required
motor
can
a citizen-driven
before the
follow
is
“questions
support
contention;
as
vehicle, and do not
such
brought
merely
attention of the
record,
neither
lurk
having
upon,
been decided
are
to be considered as
court
ruled
not
nor
precedent.”
786,
788
Chives
so as
constitute
(449 SE2d
safeguard
provides a
Amendment
constitutional
The Fourth
against
seizures,
and unless
con-
unreasonable searches
following
would, under
motor
the
duct
a citizen-driven
totality
seizure, no
circumstances,
in an unreasonable
the
result
of
warranting
suppression
evidence
Fourth Amendment violation
pursuit
to constitute
absent articulable
occurs. Even
application
physi-
person,
of
the
there must be either the
seizure of
slight, or,
absent,
that is
submission
force,
cal
where
however
liberty.
subject’s
gen-
authority”
the
See
of
to restrain
officer’s“show
(1) (b)
(1) (a),
erally
(g)
1,
n.
D.,
v.Hodari
until units both their activated flasher point, discussed, at that as at least one or more of the above officers had committed appellee actually until various traffic offenses. It was not submitted authority person to the show of that a seizure of his occurred for purposes. Amendment Fourth Id. factors considered in supra operative Chеsternut, of this case. The result herein reached is consistent with Brisbane 294), Georgia Supreme Court, where having after interest in the maintenance com- balanced the State’s having outweighed munity peace security found it momentary indignity investigative detention, inconvenience “ practice preventative therapy by ‘the can concluded that rea- state man sonable road checks to ascertain whether and machine meet legislative [Cit.]” preven- A determination of fitness.’ most effective police merely following therapy prescription tive citizens who are of the traffic such is not vehicles; motor action unreason- meaning able within the Fourth Amendment when conducted supra, parameters. D., within Hodari Beasley,
Judgment Blackburn, J., J., rеversed. C. concurs. concurs *6 specially.
Beasley, Chief Judge, concurring specially.
I concur in reversal the trial court’s order but not all with opinion. that is contained in the suppress
1. Defendant filed a motion to result breath testimony test administered and a motion in limine to restrict about ground properly rights it, on the was he informed of his Georgia’s Implied under miss the the officer Consent He also filed a dis- Law. motion to altogether charge alleged, because,
intoxicated he stop lacked to him. The court only charge dismissed, acted on the latter motion and ordered the 492) (1993). relying on v. Golden, State grant suppress That case reviewed the to motion evidence. Although procedurally granted the trial court could have suppress unlawfully motion to the evidence it deemed obtained leaving try case, this it, State to the case without the conclusion legally that evidence was not obtained would not invalidate charge authority charge itself. I find no for a court to dismiss illegally by Wright, because of seized evidence. All of the cases cited suppress here, both the trial court and involve motions to evi- dence. Wright depends
As in or on, similar to the cases he could have supрress legality pre- filed a motion to evidence the by pickup cluded OCGA the lack of an to truck.
§ testimony A 17-5-30. motion limine to exclude on related ground procedurally the same would also be correct. See State (3) (291 543) (1982). Johnston, However, he so, did not do and his motions of this nature addressed another con- cern.
According suppress statute, to motion “shall . . . state showing the search and seizure v/ere unlawful.” The showing lay. movant must state facts wherein the unlawfulness 357) (1981). Mosier v. legality beyond “extended] of the the boundaries of defendant’s suppress,” compliance motion to which involved the officer’s with con- in that Implied not determinable Law, and thus was Consent 744) (1990). 181, 183 State, 197 Ga. text. Wilson Davis See also (1992). suppression the evidence Wright not entitled Thus, pursued by had not ground court, because the trial ruled on limine, he was not suppress motion in in his motion such entitled to charge ruled reason asserted for the dismissal of considering the procedural our even alone, without error on. On ruling, court’s order underlying of the reversal substance warranted. challenge the traffic merits of the 2. Even if the properly initiated that was us, it is unrefuted before objec- by Wright An all three officers. erratic tively behavior of criminal determined Wright present. issue is whether that the sole states single lack permitted an individual out and follow are articulable Assuming wrongdoing. of criminal preserved adequately presented review, I would majority’s agree answer to it. April 30, 1996.
Decided *7 Cynthia Adams, Solici- Turner, Solicitor, Assistant T. Robert E. appellant. tor, for appellee. Sammons, Jr., Sammons, G.
Sammons & Walter FORKNER. STORES, INC. v. A96A0477. WAL-MART Judge R. Banke. Harold (“Wal-Mart”) punitive appeals dam- Stores, Inc. Wal-Mart Tommy judgment ages O. entered on behalf awarded the default Forkner. impris- battery and false Forkner sued Wal-Mart for assault damages. punitive sought general com- Forkner’s and had onment wilfully alleged plaint indif- acted with conscious Wal-Mart consequences care. After Wal-Mart and an entire wаnt of ference to failed to file an answer or defensive being properly despite pleadings, judgment lia- on the issue of a default served, the trial court entered damages, bility. received Wal-Mart trial to determine Prior to the damages pending judgment hear- and also of notice of the default appearance, ing. Despite to make an notice, Wal-Mart failed this