Sevilla-Carcamo v. the State , 335 Ga. App. 788 ( 2016 )

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and PETERSON, JJ.
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
February 23, 2016
In the Court of Appeals of Georgia
A15A2351. SEVILLA-CARCAMO v. THE STATE.
DILLARD, Judge.
Katia Sevilla-Carcamo appeals the trial court’s denial of her motion to suppress
evidence. On appeal, Sevilla-Carcamo contends that the trial court erred when it
concluded that (1) the officer had reasonable articulable suspicion to stop her vehicle
based on her failure to use a turn signal; (2) in the alternative, the “good faith”
exception, or a reasonable mistake of law, gave rise to a reasonable articulable
suspicion justifying a stop of her vehicle; and (3) a third party validly consented to
a search of the vehicle after she refused to consent. For the reasons set forth infra, we
affirm.
At the outset, we note that the Supreme Court of Georgia has reiterated three
fundamental principles to follow in reviewing a ruling upon a motion to suppress.1
First, the trial judge sits as the trier of fact at a hearing on a motion to suppress.2 And
because the trial judge hears the evidence, the judge’s 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].”3 Second, the trial judge’s
decision with regard to questions of fact and credibility “must be accepted unless
clearly erroneous.”4 Finally, we (as the reviewing court) must construe the evidence
“most favorably to the upholding of the trial court’s findings and judgment.”5
So viewed, the record reflects that on the day in question, an officer with the
Gwinnett County Police Department received a tip from a Drug Enforcement
Administration (“DEA”) agent that a white Acura SUV driven by Sevilla-Carcamo
1
See Miller v. State, 288 Ga. 286, 286 (1) (702 SE2d 888) (2010).
2
Id.3
Id. As to this first principle, our Supreme Court has further instructed that,
“[t]o properly follow [it], we must focus on the facts found by the trial court in its
order.” Id. at 287 (1) (emphasis omitted).
4
Miller, 288 Ga. at 286 (1).
5
Id.
2
may contain illegal contraband. The officer then conveyed this information to a
second Gwinnett County officer, who then followed the vehicle for some time,
looking for justification to initiate a traffic stop.
As the officer followed behind, Sevilla-Carcamo came to an on-ramp for I-85
South and proceeded onto the interstate by merging across a dashed lane line into
southbound traffic without utilizing a turn signal. According to the officer,
southbound traffic was very heavy at the time, and the lane beside the merge lane
contained many vehicles when Sevilla-Carcamo merged without the use of a signal.
Additionally, at some point prior to the imminent traffic stop, Sevilla-Carcamo’s
vehicle traveled, in total, two lanes to the left of the merge lane. Thus, due to Sevilla-
Carcamo’s failure to utilize a turn signal while changing lanes, the officer initiated
a traffic stop, at which point the officer who initially received the DEA tip also
arrived on scene.
When the initiating officer approached Sevilla-Carcamo, he requested her
driver’s license, but she informed him that she did not have one. Sevilla-Carcamo also
told the officer that she was en route to pick up a friend’s child from a local
elementary school, but the officer observed that the school was located eight to ten
miles north of the direction she was traveling (which was southbound). At that point,
3
the officer placed Sevilla-Carcamo under arrest for driving without a valid driver’s
license.
After her arrest, the officers asked Sevilla-Carcamo for consent to search the
vehicle, which she declined to give. Then, in accordance with department policy, the
officers allowed Sevilla-Carcamo to contact someone to recover the vehicle rather
than have it impounded. Sevilla-Carcamo called her pastor and, 20 to 25 minutes
later, he arrived on the scene.
Both prior to and concurrent with the pastor’s arrival, a K-9 unit conducted two
open-air searches of Sevilla-Carcamo’s vehicle, but the dog did not alert to the
presence of any contraband. Nevertheless, before the pastor could leave with the
vehicle, the officers informed him that they suspected the presence of illegal
contraband and that he “would be responsible for whatever was in the car if he took
possession of the vehicle.” The pastor then asked to speak with Sevilla-Carcamo, who
was sitting handcuffed in the back of a patrol car.
The conversation that ensued between the pastor and Sevilla-Carcamo was
mostly in Spanish, which none of the officers could speak or understand; but at its
conclusion, the pastor informed the officers that Sevilla-Carcamo gave him
permission to take possession of the vehicle and that she told him that “there may be
4
drugs in the vehicle.” The pastor then requested that the officers search the vehicle.
But before doing so, one of the officers once again confirmed with Sevilla-Carcamo
that she wished for the pastor to take possession of the vehicle, to which she
responded in the affirmative.
Having received the pastor’s permission to search the vehicle, the officers then
proceeded with the search and located in the center console a large white purse
containing a kilogram of cocaine. Sevilla-Carcamo was thereafter indicted for
trafficking cocaine.6 She filed a motion to suppress the evidence discovered in her
vehicle by law enforcement, which the trial court denied. Sevilla-Carcamo then filed
an application for interlocutory appeal, which we granted. This appeal follows.
As set forth supra, Sevilla-Carcamo contends that (1) the officer lacked
reasonable articulable suspicion to stop her vehicle based on a failure to use a turn
signal; (2) the trial court erred in concluding that the “good faith” exception, or a
reasonable mistake of law, gave rise to a reasonable articulable suspicion justifying
a stop of her vehicle even if the failure to use a turn signal did not; and (3) her
pastor’s consent to search the vehicle was invalid when she had previously refused
consent to search. We will address each of these enumerations of error in turn.
6
See OCGA § 16-13-31 (a).
5
1. First, Sevilla-Carcamo argues that the officer lacked reasonable articulable
suspicion to justify a stop of her vehicle based upon a failure to use a turn signal.
Specifically, she contends that this is so because OCGA § 40-6-123 “contemplates
instances in which a turn on a roadway can be made with reasonable safety and
without the use of a turn signal.” We disagree.
OCGA § 40-6-123 provides that no person shall, inter alia, “change lanes or
move right or left upon a roadway unless and until such movement can be made with
reasonable safety”7 and that “[n]o person shall so turn any vehicle without giving an
appropriate and timely signal in the manner provided in this Code section.”8 This
statutory provision further directs that “[a] signal of intention to . . . change lanes
when required shall be given continuously for a time sufficient to alert the driver of
a vehicle proceeding from the rear in the same direction or a driver of a vehicle
approaching from the opposite direction.”9
Sevilla-Carcamo argues that it was not necessary for her to utilize a turn signal
while merging onto I-85 because drivers traveling southbound had “already been
7
OCGA § 40-6-123 (a).
8
Id.
9
OCGA § 40-6-123 (b).
6
notified by a conspicuous merge sign with arrows indicating . . . that vehicles will be
merging into their lane of travel, thus obviating the need for southbound merge lane
drivers to signal” and because, at the relevant on-ramp, “merge lane drivers have no
legal option but to share the same lane [in which] they are already traveling.” But we
agree with the trial court that because, during a period of heavy traffic, Sevilla-
Carcamo failed to use a turn signal when she crossed over a dashed lane line10 into
the lane in which the on-ramp would have eventually fully merged, the officer indeed
had probable cause to initiate a traffic stop for violating OCGA § 40-6-123.11
10
Cf. OCGA § 40-6-46 (a) (“[N]o-passing zones shall be clearly marked by a
solid barrier line placed on the right-hand element of a combination stripe along the
center or lane line or by a solid double yellow line.”); OCGA § 40-6-46 (b) (“Where
signs or markings are in place to define a no-passing zone . . . , no driver shall at any
time drive on the left side of the roadway within such no-passing zone or on the left
side of any pavement striping designed to mark such no-passing zone throughout its
length.”).
11
See Morgan v. State, 309 Ga. App. 740, 745-46 (710 SE2d 922) (2011)
(holding that the trial court was “authorized to find that the evidence placed vehicles
in close spatial and temporal proximity to the Hyundai when it made its turn such that
the officer had probable cause to believe that the driver of the Hyundai had violated
OCGA § 40-6-123 by turning without signaling”); Salinas-Valdez v. State, 276 Ga.
App. 732, 732-33 (1) (624 SE2d 278) (2005) (holding that deputy had a “sufficiently
specific basis to justify the initial stop” when driver changed lanes without signaling
in “medium heavy to heavy” traffic); Johnson v. State, 249 Ga. App. 29, 30 (546
SE2d 922) (2001) (holding that stop of vehicle was authorized when officer observed
driver abruptly change lanes without signaling three times when “three or four” other
cars were on the roadway). Cf. State v. Goodman, 220 Ga. App. 169, 171 (2) (469
7
2. Given our holding in Division 1 supra, we need not address Sevilla-
Carcamo’s second enumeration of error, which is that the trial court erred in finding,
in the alternative, that the officer had a good-faith basis to stop her vehicle
notwithstanding any mistake of law. However, it is worth noting that this Court has
previously held, in the context of a traffic stop for a suspected violation of OCGA §
40-6-123 (a), that “[i]f an officer in good faith believes that an unlawful act has been
committed, his actions are not rendered improper by a later determination that the
conduct observed was not a crime.”12
3. Finally, Sevilla-Carcamo contends that her pastor’s consent to a search of
the vehicle was invalid because she had previously refused to permit a search. Yet
again, we disagree.
SE2d 327) (1996) (holding that driver’s legal u-turn at intersection from
left-turn-only lane without signaling did not justify traffic stop for making improper
left turn).
12
Parker v. State, 307 Ga. App. 61, 62 (1) (704 SE2d 438) (2010) (punctuation
omitted); see also Heien v. North Carolina, __ U.S. __, __ (II) (135 SCt 530, 190
LE2d 475) (2014) (holding that “reasonable suspicion can rest on a mistaken
understanding of the scope of a legal prohibition”).
8
It is well established that a valid consent to search “eliminates the need for
either probable cause or a search warrant.”13 And in United States v. Matlock,14 the
Supreme Court of the United States explained that “when the prosecution seeks to
justify a warrantless search by proof of voluntary consent, it is not limited to proof
that consent was given by the defendant, but may show that permission to search was
obtained from a third party who possessed common authority over or other sufficient
relationship to the premises or effects to be inspected.”15 Nevertheless, at least insofar
as consent to search a residence is concerned, in Georgia v. Randolph,16 the Supreme
Court of the United States somewhat limited its earlier holding in Matlock to specify
that “a physically present co-occupant’s stated refusal to permit entry prevails,
rendering the warrantless search unreasonable and invalid as to him.”17
13
Hardin v. State, 277 Ga. 242, 244 (3) (587 SE2d 684) (2003) (punctuation
omitted); accord Dean v. State, 250 Ga. 77, 80 (295 SE2d 306) (1982); see also
United States v. Matlock, 415 U.S. 164, 165-66 (94 SCt 988, 39 LE2d 242) (1974)
(noting that “the search of property, without warrant and without probable cause, but
with proper consent voluntarily given, is valid under the Fourth Amendment”).
14
415 U.S. 164 (94 SCt 988, 39 LE2d 242) (1974).
15
Id. at 171 (II).
16
547 U.S. 103 (126 SCt 1515, 164 LE2d 208) (2005).
17
Id. at 106.
9
Importantly, in limiting a co-tenant’s ability to consent to the search of a
residence, the Supreme Court of the United States focused on “societal expectations”
and noted that because a “co-tenant wishing to open the door to a third party has no
recognized authority in law or social practice to prevail over a present and objecting
co-tenant, his disputed invitation, without more, gives a police officer no better claim
to reasonableness in entering than the officer would have in the absence of any
consent at all.”18 Thus, the cooperative occupant’s invitation “adds nothing to the
government’s side to counter the force of an objecting individual’s claim to security
against the government’s intrusion into his dwelling place.”19 And the home, of
course, is “entitled to special protection as the center of the private lives of our
people.”20 Indeed, as the Supreme Court of the United States so eloquently noted in
18
Id. at 114 (II) (D).
19
Id. at 115 (II) (D).
20
Id. (punctuation omitted); see also Wilson v. Layne, 526 U.S. 603, 610 (II)
(119 SCt 1692, 143 LE2d 818) (1999) (“The Fourth Amendment embodies th[e]
centuries-old principle of respect for the privacy of the home[.]”); Welsh v.
Wisconsin, 466 U.S. 740, 748 (II) (104 SCt 2091, 80 LE2d 732) (1984) (“It is
axiomatic that the physical entry of the home is the chief evil against which the
wording of the Fourth Amendment is directed.” (punctuation omitted)); Miller v.
United States, 357 U.S. 301, 307 (78 SCt 1190, 2 LE2d 1332) (1958) (“The poorest
man may in his cottage bid defiance to all the forces of the Crown. It may be frail; its
roof may shake; the wind may blow through it; the storm may enter; the rain may
10
Kyllo v. United States,21 at the “very core of the Fourth Amendment stands the right
of a man to retreat into his own home and there be free from unreasonable
governmental intrusion.”22
On the other hand, it is likewise well established that the expectation of privacy
with respect to one’s automobile is “significantly less than that relating to one’s home
or office.”23 Indeed, automobiles, unlike homes, are “subjected to pervasive and
continuing governmental regulation and controls, including periodic inspection and
enter; but the King of England cannot enter—all his force dares not cross the
threshold of the ruined tenement!” (punctuation omitted)).
21
533 U.S. 27 (121 SCt 2038, 150 LEd2d 94) (2001)
22
Id. at 31 (II) (Scalia, J.) (punctuation and citation omitted).
23
South Dakota v. Opperman, 428 U.S. 364, 367 (2) (96 SCt 3092, 49 LE2d
1000) (1976); see also State v. Scott, 159 Ga. App. 869, 871 (2) (285 SE2d 599)
(1981) (“[A] person has less expectation of privacy with respect with one’s
automobile than one’s home or office.”); Cuevas v. State, 151 Ga. App. 605, 608 (1)
(A) (260 SE2d 737) (1979) (“Less stringent requirements govern search of motor
vehicles because the expectation of privacy in one’s auto is significantly less than in
one’s home.”).
11
licensing requirements.”24 And the expectation of privacy as to automobiles is further
diminished by “the obviously public nature of automobile travel.”25
Here, Sevilla-Carcamo agreed to entrust her vehicle to her pastor for
safekeeping, thus creating a bailment.26 And in doing so, she “assumed the risk that
24
Opperman, 428 U.S. at 368 (2); accord California v. Carney, 471 U.S. 386,
392 (2) (105 SCt 2066, 85 LE2d 406) (1985); United States v. Albers, 136 F3d 670,
673 (9th Cir. 1998); see also Somesso v. State, 288 Ga. App. 291, 293-94 (2) (a) (653
SE2d 855) (2007) (“These reduced privacy expectations derive from the pervasive
regulation of vehicles capable of traveling on public highways.”).
25
Opperman, 428 U.S. at 368 (2); see Cardwell v. Lewis, 417 U.S. 583, 590 (II)
(94 SCt 2464, 41 LE2d 325) (1974) (“One has a lesser expectation of privacy in a
motor vehicle because its function is transportation and it seldom serves as one’s
residence or as the repository of personal effects. A car has little capacity for escaping
public scrutiny. It travels public thoroughfares where its occupants and its contents
are in plain view.”); Bain v. State, 258 Ga. App. 440, 443 (1) (b) (574 SE2d 590)
(2002) (“Because of the ready mobility of an automobile and the fact that the
expectation of privacy with respect to one’s automobile is significantly less than that
with respect to one’s home or office, the United States Supreme Court has long
recognized an exception to the warrant requirement for searching an automobile, if
based upon probable cause.”); Stanford v. State, 251 Ga. App. 87, 89 (1) (553 SE2d
622) (2001) (“The ready mobility of an automobile and the fact that the expectation
of privacy with respect to one’s automobile [is] significantly less than that relating
to one’s home or office justify a warrantless search, if based upon probable cause.”);
see also Carney, 471 U.S. at 392-94 (2) (holding that vehicle-exception to warrant
requirement applied to mobile home); Albers, 136 F3d at 673 (holding that vehicle-
exception to warrant requirement applied to houseboat).
26
See Wilder v. State, 290 Ga. 13, 17 (3) & n.4 (717 SE2d 457) (2011) (noting
that, “given the undisputed evidence that [defendant] left the briefcase with [a third
party] for safekeeping and that [the third party] kept the briefcase at his request, it
12
[the pastor] would allow someone else to look inside.”27 Thus, the pastor at that point
possessed authority to consent to a search of the SUV because there is no evidence
that Sevilla-Carcamo in any way limited her pastor’s use of the vehicle or ability to
appear[ed] that a bailment was created,” but declining to address the applicability of
the third-party consent doctrine when the third party has assumed the role of bailee).
See generally WAYNE R. LAFAVE, 4 SEARCH & SEIZURE § 8.6 (a) (5th ed.) (collecting
cases and discussing consent to search by bailees).
27
Frazier v. Cupp, 394 U.S. 731,740 (III) (89 SCt 1420, 22 LE2d 684) (1969);
see Pupo v. State, 187 Ga. App. 765, 767 (5) (371 SE2d 219) (1988) (“[The
appellant’s] status as driver of the vehicle afforded him sufficient authority over it to
enable him to consent to the search, particularly in the absence of any objection by
[the passenger, to whom the vehicle was registered].”); see also Fears v. State, 152
Ga. App. 817, 819 (1) (264 SE2d 284) (1979) (“After committing a violent crime,
appellant left his bag in a house belonging to another and over which he had no
authority or proprietary interests, and no reasonable expectation of privacy generally;
the owner knew of or suspected the crime . . . and discovered the weapon. She had a
right to have it removed from her house and had the right to permit the police to open
the bag to get it out. Moreover, when he left his bag in his sister’s house, appellant
did not give her any instructions as to what to do with it and cannot object to her
permitting its contents to be removed. Appellant’s relinquishment of all control over
the bag in the house of another was tantamount to an abandonment.” (citation
omitted)); United States v. Basinski, 226 F3d 829, 834 (II) (A) (7th Cir. 2000)
(Manion, J.) (“Thus, [when] a defendant allows a third party to exercise actual or
apparent authority over the defendant’s property, he is considered to have assumed
the risk that the third party might permit access to others, including governmental
agents.”); Johnson v. State, 519 So2d 713, 714-15 (Ct. App. Fla. 1988) (holding that
defendant who left suitcase with bailee without any effort to secure the privacy of his
effects “reasonably assume[d] that the bailee would open the suitcase and/or authorize
the police to do so”).
13
consent.28 And despite the fact that Sevilla-Carcamo had previously refused consent
to a search of the vehicle, we decline her invitation to extend the Supreme Court of
28
See United States v. Eldridge, 302 F2d 463, 466 (1962) (holding that bailee
of vehicle gave valid consent to search when he was “clothed with rightful possession
and control and could do in respect to the automobile whatever was reasonable and
not inconsistent with its entrustment to him,” and noting that “[n]o restriction was
imposed on him except to return with the car by a certain hour” and that defendant
“reserved no exclusive right of privacy in respect to the trunk [that contained stolen
property] when he delivered the key”); Hamilton v. State of NC, 260 FSupp 632, 635
(E.D. NC 1966) (applying the holding in United States v. Eldridge to determine that
bailee gave valid consent to search of automobile); see also Basinski, 226 F3d at 834
(II) (A) (“The key to third party consent is actual or apparent authority over the area
to be searched”). Cf. Seldon v. State, 824 A2d 999, 1012 (I) (Md. Ct. App. 2003)
(holding that mechanic could not consent to a search of portions of vehicle over
which he had authority to access for repairs after repairs had been completed); State
v. Kurokawa-Lasciak, 278 P3d 38, 44 (Or. Ct. App. 2012) (holding that third party
lacked authority to validly consent to search when defendant gave the third party
explicit instructions that imposed strict limits on access to the vehicle, such that
limitations “did not encompass consenting to a search”). We note that after receiving
the pastor’s valid consent to search, the officers’ search of the purse located within
the automobile and ultimately found to contain the illegal contraband was also
reasonable. See Florida v. Jimeo, 500 U.S. 248, 251 (111 SCt 1801, 114 LE2d 297)
(1991) (holding that suspect’s Fourth Amendment right was not violated when, after
consenting to search of his car, officer opened folded, brown paper bag on floorboard
and found kilogram of cocaine therein, and noting that suspect had not placed any
explicit limitation on scope of search, making it objectively reasonable for officer to
conclude that general consent included consent to search closed containers which
might contain drugs).
14
the United States’s narrow holding in Randolph29 given the well-established
differential treatment of residences and automobiles under the Fourth Amendment.30
Accordingly, for all of the foregoing reasons, we affirm the trial court’s denial
of Sevilla-Carcamo’s motion to suppress evidence.
Judgment affirmed. Ellington, P. J., and Peterson, J., concur.
29
See generally 547 U.S. at 106-23 (I)-(III); id. at 127 (Breyer, J., concurring)
(“Given the case-specific nature of the Court’s holding . . . I join the Court’s holding
and its opinion.”).
30
See State v. Copeland, 399 SW3d 159, 166-67 (II) (B) (2) (Crim. Ct. App.
Tex. 2013) (holding that driver gave valid consent to search vehicle despite
passenger–owner’s refusal, and declining to extend the holding in Randolph when “it
does not appear that the Supreme Court intended for Randolph to apply to vehicles
because the social expectations for occupants of vehicles are unlike co-tenants in
residences; people have a lessened expectation of privacy in vehicles as compared to
residences; and Randolph was intended to narrowly apply only to the present,
objecting co-tenant in a residence”); see also Welch v. State, 93 SW3d 50, 53-57 (III)
(Crim. Ct. App. Tex. 2002) (holding that passenger gave valid consent to search
vehicle when driver, in giving vehicle over to passenger, assumed the risk that
passenger would consent to a search; and allowed passenger to have “mutual access
and control over the vehicle for most purposes,” whether or not a complete bailment
existed, by failing to give any express limitations).
15