Bius v. State

563 S.E.2d 527, 254 Ga. App. 634, 2002 Fulton County D. Rep. 1206, 2002 Ga. App. LEXIS 439
CourtCourt of Appeals of Georgia
DecidedMarch 29, 2002
DocketA01A2045
StatusPublished
Cited by15 cases

This text of 563 S.E.2d 527 (Bius v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bius v. State, 563 S.E.2d 527, 254 Ga. App. 634, 2002 Fulton County D. Rep. 1206, 2002 Ga. App. LEXIS 439 (Ga. Ct. App. 2002).

Opinions

Barnes, Judge.

After the grant of her interlocutory appeal, Sherri Samantha Bius appeals the denial of her motion to suppress, challenging the searches of her vehicle and her residence. Following the execution of the warrant at her home, Bius was indicted on more than 30 counts [635]*635of criminal activity, including allegations of financial identity fraud, forgery, and theft by receiving stolen property.

She contends the trial court erred by denying her motion to suppress the evidence seized in both searches because the evidence seized during the search of her car resulted from an unlawful traffic stop and detention, and the evidence seized during the search of her home was the result of an unauthorized search warrant. The warrant was unauthorized, she argues, because the information in the affidavit supporting the search warrant was stale, the confidential informant’s reliability was not established, and the warrant relied in part on evidence illegally seized from her car. Although we find that the traffic stop was not authorized and must reverse the denial of that part of Bius’s motion to suppress, we find no error regarding the warrant authorizing the search of Bius’s house. Therefore, we affirm that portion of the denial of Bius’s motion to suppress.

1. The rules applicable to an appellate court’s review of a trial court’s decision on a motion to suppress were announced in Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994):

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. 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 the 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.

(Citations and punctuation omitted; emphasis in original.)

Further, when

determining whether probable cause supported issuance of a search warrant, a “totality of the circumstances” test is employed. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of [the] reviewing court is simply to ensure that the magistrate had [636]*636a substantial basis for concluding that probable cause existed.

(Citations and punctuation omitted.) Sims v. State, 207 Ga. App. 353, 354 (427 SE2d 842) (1993).

2. Bius first contends that the trial court erred by denying her motion to suppress evidence seized after the traffic stop in Gwinnett County because the officer stopped her only because he recognized he had stopped her 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 to investigate the reason for the stop. See Smith v. State, 216 Ga. App. 453, 455 (2) (454 SE2d 635) (1995). Because we find that the stop was unlawful, we need not address the second prong of Bius’s attack.

The officer testified that he stopped Bius because her car was displaying a drive-out tag and he wanted to see if she had owned the car for less than 30 days. He further testified that it was his common practice to pull over vehicles that had drive-out tags without dates on them. At the time of the stop, Georgia law had not been changed to require that the expiration date be displayed on the drive-out tag. See OCGA § 40-2-8 (b) (2) (B) (i), effective July 1, 2000. The officer did not testify, however, that anything about the appearance of the drive-out tag led him to believe that Bius was violating the vehicle registration laws. Compare Chiasson v. State, 250 Ga. App. 63, 64 (1) (549 SE2d 503) (2001) (officer authorized to stop car to investigate whether a car with a faded or weathered drive-out tag was in compliance with vehicle registration laws).

In Berry v. State, 248 Ga. App. 874, 880 (3) (547 SE2d 664) (2001), this court held that “the critical issue to the validity of a traffic stop is whether the officer had ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” Thus, we considered whether stopping a vehicle with a 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 stopping a car with a drive-out tag solely to ascertain whether the driver was complying with our vehicle registration laws is also not authorized. See id. at 888-890 (Pope, P. J., concurring specially). The officer in this case also “had no ‘particularized and objective basis for suspecting [Bius] of criminal activity.’ ” Id. at 880 (3). He had a mere hunch that the driver and owner of a car with a drive-out tag might not be complying with the vehicle registration laws. Therefore, the traffic stop was not authorized, and the trial court erred by denying the motion to suppress as it concerned the items seized during the search of Bius’s car. Accordingly, this part of the trial court’s order must be [637]*637reversed and remanded to the trial court with direction to grant the motion to suppress on these items.

In Berry, both-Presiding Judge Pope’s special concurrence, joined by four other judges, id. at 888-890, and Judge Ruffin’s special concurrence, joined by two other judges, id. at 883-888, called for over- „ ruling Burtts v. State, 211 Ga. App. 840 (440 SE2d 727) (1994). Although a clear majority of this court wanted Burtts overruled, our opinions in Berry did not explicitly overrule it. Therefore, we now accomplish what we implied in Berry and expressly overrule Burtts and any other cases which would authorize a traffic stop solely because a vehicle was being operated with a dealer’s drive-out tag.

3. Bius attacks the affidavit supporting the search warrant for her residence on the theory that the confidential informant’s reliability was not established and the information he provided was stale. We disagree. When determining whether an affidavit sufficiently establishes probable cause, we use the “Totality of the circumstances’ analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by [our Supreme C]ourt in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984).” Gary v. State, 262 Ga. 573, 577 (422 SE2d 426) (1992). To determine an informant’s reliability, a magistrate should be furnished with three facts: (1) the type of information previously supplied by the informant, (2) the use to which the information was put, and (3) the elapsed time since the information was furnished. Mitchell v. State, 239 Ga. App.

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Bius v. State
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Cite This Page — Counsel Stack

Bluebook (online)
563 S.E.2d 527, 254 Ga. App. 634, 2002 Fulton County D. Rep. 1206, 2002 Ga. App. LEXIS 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bius-v-state-gactapp-2002.