State v. Larry Shaw

• Court: Court of Appeals of Georgia
• Decided: November 8, 2019
• Docket: A19A1655
• Status: Published

Opinion

FIFTH DIVISION MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules

November 8, 2019

In the Court of Appeals of Georgia A19A1655. THE STATE v. SHAW.

PER CURIAM.

The State appeals from the trial court’s grant of Larry Shaw’s motion to

suppress evidence obtained as a result of Shaw’s traffic stop. The trial court granted

the motion to suppress, finding that the law enforcement officer lacked reasonable

articulable suspicion to justify the stop of Shaw’s vehicle. For the reasons set forth

below, we affirm.

In a hearing on a motion to suppress, the trial court sits as the trier of fact and

its findings are analogous to a jury verdict. Watts v. State, 334 Ga. App. 770, 771

(780 SE2d 431) (2015). Accordingly, we defer to the trial court’s credibility

determinations and will not disturb its factual findings in the absence of clear error.

Id. And “[w]hen reviewing the grant or denial of a motion to suppress, an appellate court must construe the evidentiary record in the light most favorable to the trial

court’s factual findings and judgment.” Caffee v. State, 303 Ga. 557, 557 (814 SE2d

386) (2018). Additionally, as a general rule, an appellate court must limit its

“consideration of the disputed facts to those expressly found by the trial court.” Id.

(punctuation omitted). “An appellate court may, however, consider facts that

definitively can be ascertained exclusively by reference to evidence that is

uncontradicted and presents no questions of credibility, such as facts indisputably

discernible from a videotape.” Id. at 559 (1) (punctuation omitted). Finally, although

we defer to the trial court’s fact-finding, we owe no deference to the trial court’s legal

conclusions. Hughes v. State, 296 Ga. 744, 750 (2) (770 SE2d 636) (2015). Instead,

we independently apply the law to the facts as found by the trial court. Id.

So viewed, the record shows that Shaw was arrested for driving under the

influence after he was stopped for an alleged traffic violation. On July 27, 2018, a

police officer was “pacing traffic” to provide safety to officers working on an

accident up ahead. The officer activated his patrol car’s blue lights and weaved from

left to right over all three lanes of the road. Most cars stayed behind him. Three cars

passed him, one using the right shoulder, one using the left lane, and one using the

right lane. A fourth vehicle, Shaw’s, passed the officer on the right about ten seconds

2 after the third car and within view of the third car. As the police officer drifted back

towards the far right lane, he came very close to the fourth car. The officer then

initiated a traffic stop on the fourth car. The officer told the driver, Shaw, that he had

stopped the car because Shaw had not obeyed the officer’s traffic directive to stay

behind the patrol car. Shaw responded that he passed the officer “because everyone

else was doing it.”

After he was arrested and charged with driving under the influence, Shaw

moved to suppress all evidence obtained as a result of the traffic stop. At the hearing

on Shaw’s motion, the officer testified and the State presented a video recording of

the incident from the officer’s dash camera. The trial court granted the motion to

suppress, finding that there was no reasonable articulable suspicion to justify the stop.

The State now appeals from that order.

“For a traffic stop to be valid, an officer must identify specific and articulable

facts that provide a reasonable suspicion that the individual being stopped is engaged

in criminal activity.” Jones v. State, 291 Ga. 35, 38 (2) (727 SE2d 456) (2012).

“Indeed, an investigatory stop must be justified by some objective manifestation that

the person stopped is, or is about to be, engaged in criminal activity.” State v.

Mincher, 313 Ga. App. 875, 877 (723 SE2d 300) (2012) (punctuation omitted).

3 “Although an officer’s honest belief that a traffic violation has actually been

committed in his presence may ultimately prove to be incorrect, such a

mistaken-but-honest belief may nevertheless demonstrate the existence of at least an

articulable suspicion and reasonable grounds for the stop.” Worsham v. State, 251 Ga.

App. 774, 775 (554 SE2d 805) (2001). “The question to be decided is whether the

officer’s motives and actions at the time and under all the circumstances, including

the nature of the officer’s mistake, if any, were reasonable and not arbitrary or

harassing.” Id.

1. The State argues that the officer had a reasonable articulable suspicion that

Shaw illegally failed to obey an authorized person directing traffic, in violation of

OCGA § 40-6-2, which provides that “no person shall fail or refuse to comply with

any lawful order or direction of any police officer . . . with authority to direct, control,

or regulate traffic.” We disagree.

The officer testified that he was pacing traffic in order to slow it down and that

he kept cars behind him by weaving from left to right over all three lanes of the road

with the patrol car’s lights on. However, it is undisputed that the officer let three cars

pass his patrol car without initiating traffic stops. Only after Shaw’s car, the fourth

car, passed the patrol car did the officer initiate a traffic stop.

4 After hearing the officer’s testimony and reviewing the video of the traffic stop,

the trial court found that the officer’s manner of slowing down traffic, by slowly

driving from left to right over three lanes with his lights on, did not constitute a clear

police order to stay behind the officer’s vehicle. Additionally, the trial court

determined that the officer’s traffic directive was ambiguous because the officer

allowed three cars to pass him. After independent review of the video, we discern no

clear error with these factual findings. See Watts, 334 Ga. App. at 771; Caffee, 303

Ga. at 557. Because the officer did not give a clear directive that cars must not pass

him and even allowed three cars to pass him without stopping them, Shaw did not

violate any clear directive by passing the patrol car. Additionally, there was no

objective basis for the officer to reasonably believe that Shaw violated any such

directive. See Mincher, 313 Ga. App. at 877-878 (affirming the trial court’s grant of

a motion to suppress evidence obtained as a result of a traffic stop because the

conduct that was alleged as the basis for the stop was not illegal and there was no

objective basis to suspect that the defendant was or was about to be engaged in any

criminal activity).

2. The State also argues that the officer had reasonable articulable suspicion to

stop Shaw for “any alleged traffic violation that the police officer observed in his

5 presence.” The State contends that the officer could have cited Shaw for violating

OCGA §§ 40-6-390, 40-6-74, and 40-6-48 based on the video and the officer’s

testimony. We disagree.

“[T]he stop of a vehicle is ... authorized merely if the officer observed a traffic

offense.” State v. Zeth, 320 Ga. App. 140, 141 (739 SE2d 443) (punctuation omitted);

see also Worsham, 251 Ga. App. at 775-776 (even assuming that an officer’s

mistaken belief that Georgia’s motor vehicle registration law had been violated was

not reasonable, he was nonetheless authorized to initiate the traffic stop after

observing the defendant violate another traffic law by failing to maintain his lane).

“So long as the stop was based upon conduct the officer observed, not on a mere

‘hunch,’ and it was not pretextual, arbitrary, or harassing, an officer may act on a

legitimate concern for public safety in stopping a driver.” State v. Calhoun, 255 Ga.

App. 753, 755 (566 SE2d 447) (2002). Furthermore, even if an “officer’s honest

belief that a traffic violation has actually been committed in his presence may

ultimately prove to be incorrect, such a mistaken-but-honest belief may nevertheless

demonstrate the existence of at least an articulable suspicion and reasonable grounds

for the stop.” Worsham, 251 Ga. App. at 775.

6 We address each of the violations alleged by the State in turn. OCGA § 40-6-

390 provides that “[a]ny person who drives any vehicle in reckless disregard for the

safety of persons or property commits the offense of reckless driving.” Here, the

video shows that the patrol car drifted towards Shaw’s car, as Shaw drove past the

patrol car in the far right lane. The trial court found that “rather than [Shaw] almost

striking the officer’s vehicle, it was the officer who came close to [Shaw’s] vehicle

when he drove back across the lanes.” The court further found that Shaw “safely

passed the officer on the right.” Based on independent review of the video, we discern

no clear error with these factual findings. See Watts, 334 Ga. App. at 771. Shaw did

not drive in a reckless manner and did not violate OCGA § 40-60-390. Accordingly,

this alleged violation cannot provide a valid basis for Shaw’s traffic stop. See Zeth,

320 Ga. App. at 141.

7 As to OCGA § 40-6-74 (a),1 this statute concerns a driver’s failure to yield to

emergency vehicles. “To violate the statute, an individual must obstruct the roadway,

thereby preventing an emergency vehicle from proceeding upon its route in pursuit

of a fleeing suspect or other emergency.” Jackson v. State, 223 Ga. App. 27, 28 (1)

(477 SE2d 28) (1996). Here, the video shows that Shaw passed the patrol car in the

far right lane, leaving two other empty lanes open for the patrol car to proceed

forward unobstructed. Therefore, Shaw did not obstruct the roadway and did not fail

to yield the right-of-way to the officer. Accordingly, this alleged violation cannot

provide a valid basis for the traffic stop of Shaw’s car. See Zeth, 320 Ga. App. at 141.

Finally, OCGA § 40-6-48 (1) requires a vehicle to “be driven as nearly as

practicable entirely within a single lane and [that it] not be moved from such lane

until the driver has first ascertained that such movement can be made with safety.”

1 Notably, at the suppression hearing, the State distanced itself from relying on a violation of OCGA § 40-6-74 as a basis for a valid traffic stop. The State explained that OCGA § 40-6-74, which deals with a failure to yield, was not applicable to this case because, here, Shaw was charged with a different statute, which deals with a failure to obey an authorized person directing traffic. Generally, we do not address arguments made for the first time on appeal. See Fides v. State, 237 Ga. App. 607, 607 (1) (516 SE2d 101) (1999) (“This Court is a court for the correction of legal errors and has no jurisdiction to address issues that are raised for the first time on appeal. . . . Also, [a party] may not abandon an issue in the trial court and on appeal raise questions on which the trial court has not ruled.” (punctuation and citation omitted)).

8 Here, it appears that Shaw may have driven on the road’s far right white line.

However, as the trial court noted, it is not clear that Shaw’s car went over the line

and, even if he did drive over the white line, he appeared to do so to avoid the

officer’s patrol car, which was drifting into Shaw’s lane. Because it is not entirely

clear that Shaw violated OCGA § 40-6-48 (1) by failing to maintain his lane, we must

review this evidence in the light most favorable to the trial court’s findings and

judgment. See State v. Dykes, 345 Ga. App. 721, 723 (1) (477 SE2d 106) (2019).

Thus, we defer to the trial court’s finding that there was no reasonable articulable

suspicion to justify the stop of Shaw’s vehicle, including for failure to maintain a

lane.

Construing the evidence most favorably to uphold the trial court’s ruling, we

conclude that the trial court did not err in finding that the traffic stop was

unreasonable and not based on the officer’s observation of a traffic offense.

Accordingly, we affirm the trial court’s grant of Shaw’s motion to suppress.

Judgment affirmed. Division Per Curiam. All Judges concur.