State v. Gibbons

547 S.E.2d 679, 248 Ga. App. 859, 2001 Fulton County D. Rep. 1288, 2001 Ga. App. LEXIS 422
CourtCourt of Appeals of Georgia
DecidedMarch 30, 2001
DocketA00A1885
StatusPublished
Cited by47 cases

This text of 547 S.E.2d 679 (State v. Gibbons) 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
State v. Gibbons, 547 S.E.2d 679, 248 Ga. App. 859, 2001 Fulton County D. Rep. 1288, 2001 Ga. App. LEXIS 422 (Ga. Ct. App. 2001).

Opinions

Barnes, Judge.

Pursuant to OCGA § 5-7-1 (a) (4), the State appeals the trial court’s grant of a motion to suppress filed by Michael Stinemetz and Vincent Gibbons. The State contends the trial court erred by finding that the state trooper impermissibly expanded the scope of the traffic investigation and also erred by failing to find that the trooper had a reasonable suspicion to request Stinemetz’s consent to search his [860]*860person. We disagree and affirm.

1. In reviewing a trial court’s decision on a motion to suppress, an appellate court’s responsibility is to ensure that there was a substantial basis for the decision. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). Our Supreme Court has established three guiding principles for reviewing such rulings:

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 it. 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.

(Citation and punctuation omitted; emphasis in original.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). Further,

[determining the credibility of witnesses and the weight to be given their testimony is a . . . power that lies solely with the trier of fact. The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony.

Id. at 56 (3).

2. Construed most favorably toward upholding the trial court’s findings and judgment, the evidence shows that a Georgia State Trooper pulled over Stinemetz and Gibbons for a seat belt violation. The traffic stop was recorded by a videocamera in the trooper’s cruiser, and the trial court viewed this videotape during the motion to suppress hearing. This tape shows that the state trooper immediately asked Stinemetz “twenty questions” that were unrelated to the reason he pulled him over. A transcript of their encounter follows:

Q. How ya doing? May I see your driver’s license please? I stopped you because you didn’t have your seat belt on, but I see you got it on now.
A. [Unintelligible.] . . . better put it on.
Q. Y’all didn’t have ‘em on did you? Where are y’all heading to?
A. Huh?
Q. Where y’all heading to?
A. Back to Nashville.
[861]*861Q. Where you been?
A. We went down to Atlanta to visit some friends. They had a Memorial Day party down there.
Q. Step back. [Unintelligible.] ... I can’t hardly hear you.
[Stinemetz complies by getting out of the car, and he and the officer stand in front of the patrol car directly in front of the videocamera.]
A. Yeah, they had a Memorial Day party with some friends. Were down there visiting, today.
Q. Where you work at?
A. Upchurch Construction.
[Stinemetz tucks his shirt in and places his left hand in his left pocket in a natural, habitual manner.]
Q. Take your hand out of your pocket for me. You work where now?
A. Upchurch Construction.
Q. What do you do for them?
A. Drive a dump truck.
Q. Do you have a commercial driver’s license?
A. Yes.
Q. Whose car?
A. Mine, well, it’s in my Mom’s, but it’s just mine.
Q. Who is this gentleman you have with you?
A. Uh, he’s just a friend of mine. We went down to visit some friends today.
Q. What’s his name?
A. Mario.
Q. What’s his last name?
A. Don’t know his last name. [Unintelligible.]
Q. How long you known him?
A. About a year, probably.
Q. Where y’all go to school at?
A. Well, we went to Hunter’s Lane.
Q. What’s that?
A. High school. I mean I been out for awhile. I known his cousin. I just known him about a year.
Q. Whose, where did you go to in Atlanta?
A. North, North Town apartments.
Q. How long y’all been down there?
A. Just a couple of hours. Down there visiting some friends. Did I do something wrong or something?
Q. Well, you’re not wearing your seat belt. Georgia’s got a seat belt law.
[862]*862A. Yeah. [Unintelligible.] ... he had his on. [Unintelligible.] ... we saw you [Unintelligible.] . . . so I put it on.
Q. That’s what you did wrong. But, on the seat belt violation, that’s the reason I stopped you.
A. Okay.
Q. Do you have business with these people in the other car? Do /all know them?
A. No, uh, uh. I think the cop had them pulled over when we pulled up here.
Q. How long were /all in Atlanta?
A. Just a couple of hours.
Q. Whose friends are they?
A. His friends, his cousin’s friends.
Q. Did his cousin go too?
A. No. Uh-uh.
Q. Do you have anything in your pockets?
A. No, uh-uh.
Q. Do you mind if I search your pockets?
A. Uh. . .
Q. Do you have a knife or a gun or anything?
[Stinemetz reaches for pockets in searching, responsive manner, and officer prevents him from placing hands in his pockets.]
Q. Do you mind if I search your pocket?
[Trooper places hand on outside of Stinemetz’s pocket and feels outside of it.]
A. Well, I mean . . .
Q. It’s for my safety and yours too. Do you have anything in your pockets?
A.

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Bluebook (online)
547 S.E.2d 679, 248 Ga. App. 859, 2001 Fulton County D. Rep. 1288, 2001 Ga. App. LEXIS 422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gibbons-gactapp-2001.