The State v. Lewis. , 811 S.E.2d 436 ( 2018 )

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, 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 21, 2018
In the Court of Appeals of Georgia
A17A1692. THE STATE v. LEWIS.
MCMILLIAN, Judge.
The State appeals the trial court’s grant of Brent Lewis’ motion to suppress
evidence obtained after his car was impounded during a traffic stop. The State argues
on appeal that the trial court erred in granting the motion to suppress because the
officer had reasonable articulable suspicion for the traffic stop based on information
provided by two police databases showing that Lewis had no insurance on the car.
Although the database search results may have provided the officer with reasonable
articulable suspicion to initiate a stop of Lewis’ vehicle, we affirm the trial court’s
grant of the motion to suppress because after Lewis provided valid proof of his
insurance coverage, the officer lacked probable cause to issue a traffic citation for
driving without insurance and, thus, lacked any basis to impound and inventory
Lewis’ car.
In reviewing the grant or denial of a motion to suppress, we apply three
fundamental principles as outlined by our Supreme Court:
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 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 omitted.) Miller v. State, 288 Ga. 286, 286 (1) (702 SE2d 888) (2010).
However, “where the evidence is uncontroverted and no question regarding the
credibility of witnesses is presented, the trial court’s application of the law to
undisputed facts is subject to de novo appellate review.” (Citations and punctuation
omitted.) Williams v. State, 327 Ga. App. 239, 239-40 (758 SE2d 141) (2014).
The evidence from the hearing on Lewis’ motion to suppress shows that on
November 4, 2016, an officer with the City of Atlanta Police Department was running
vehicle tags at the intersection of McDaniel and Whitehall Streets in Fulton County,
Georgia. In performing this operation, the officer checked vehicle license tags using
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the Georgia Criminal Information Center (“GCIC”) database to confirm with the
Georgia Department of Driver’s Services (“Driver’s Services”) whether a vehicle had
insurance coverage. The GCIC search reflected that a 1998 white Honda Civic, driven
by Lewis, was not covered by insurance. To verify the results of the GCIC search, the
officer used a second system, the Atlanta Criminal Information Center (ACIC)
database, which also reflected that the Honda had no insurance coverage. The officer
testified that his stop of Lewis’ vehicle was based solely on the database information
that the car had no insurance.
When the officer approached the vehicle to explain the reason for the stop,
Lewis responded that he had insurance. The officer testified that Lewis handed him
a piece of paper that appeared to be a warning from an insurance company stating the
vehicle was uninsured. Lewis testified, however, that he showed the officer an e-mail
and an insurance company app on his cell phone demonstrating that he had insurance,
but the officer told him he could not accept that information. The officer stated that
he was not sure if Lewis showed him an app on his phone because Lewis was very
nervous and “was trying to do a bunch of things at the same time.” The officer also
allowed Lewis to call his insurance company for proof, but the stop took place at
around 10:30 to 11 p.m. at night and Lewis was unable to reach his insurer at that
3
hour. Based on his observation that Lewis seemed “extremely nervous,” the officer
called for backup because he was patrolling alone. After the other police unit arrived,
the officer ran the tag through ACIC again to confirm that it showed no insurance. He
then informed Lewis that he was going to issue a citation and impound the vehicle,1
leading to an inventory search that found evidence upon which further charges were
based.2 Lewis subsequently filed a motion to suppress that evidence under OCGA §
17-5-30.
At the motion hearing, Lewis presented a copy of his insurance card, his policy
declaration page, and a printout of his premium payment history, which showed that
the car was insured as of October 28, 2016, and at the time of the traffic stop
approximately one week later, on November 4. Additionally, at the trial judge’s
request, Lewis showed the judge a screenshot of his insurance card from his phone,
which he said he showed the officer that night.
Based on this evidence, the trial court granted Lewis’s motion to suppress,
finding
1
The citation was for “no insurance” under OCGA § 40-6-10.
2
Lewis was later indicted on charges of possession of marijuana with intent to
distribute, possession of a firearm or a knife during the commission of a felony, no
insurance, and possession of a firearm by a first offender probationer.
4
from a totality of circumstances, after having had the opportunity to
observe the witnesses testify, and consideration of the evidence
presented, that Defendant did present the officer with proof of valid
vehicle insurance. As Defendant testified, he had only purchased vehicle
insurance a few days before the traffic stop. Therefore, it stands to
reason that Defendant had not received a physical insurance card but
would have had the insurance information available for review on his
cellphone application. It further stands to reason, as testified to by
Defendant, that having just purchased vehicle insurance, Defendant
would have provided that information to [the officer] in a traffic stop for
no vehicle insurance.
The trial court found that because the officer had proof of valid vehicle
insurance at the outset of the traffic stop and he had no other articulable reason for
the stop, Lewis was entitled to suppression of the evidence seized.
It is well settled that under the Fourth Amendment that
[a]n investigatory stop must be justified by some objective manifestation
that the person stopped is, or is about to be, engaged in criminal activity.
That determination can only be made after considering the totality of the
circumstances or the whole picture. Based upon that whole picture, the
detaining officers must have a particularized and objective basis for
suspecting the particular person stopped of criminal activity.
Investigative stops of vehicles based solely on unparticularized
suspicion or hunch are invalid.
5
State v. Dixson, 280 Ga. App. 260, 261 (633 SE2d 636) (2006). “The state bears the
burden of presenting evidence that demonstrates a reasonable suspicion of criminal
activity.” Id.
Here, the State is correct that the officer could rely on the database search
results, and the information indicating that Lewis was driving without insurance
supplied the objective manifestation that Lewis was committing the crime of driving
without insurance.3 Thus, the officer had reasonable articulable suspicion to initiate
the traffic stop. But that does not end the inquiry here because in the course of the
traffic stop, the officer determined to issue a citation and impound the vehicle.
In Georgia, an officer may either physically arrest an offender for a traffic
violation or issue a traffic citation, Edwards v. State, 224 Ga. App. 332, 334 (3) (a)
(480 SE2d 246) (1997); OCGA §§ 17-4-20 (a), 17-4-23 (a). Although not a physical
arrest, the issuance of a traffic citation constitutes a non-custodial arrest,4 and before
taking either action, the officer must have probable cause to believe that an offense
3
The offense of driving without insurance constitutes a misdemeanor and, if
convicted of the offense, a defendant faces a fine of between $200.00 and $1,000.00
and/or imprisonment for not more than 12 months. OCGA § 40-6-10 (b).
4
See Baker v. State, 202 Ga. App. 73, 74 (1) (413 SE2d 251) (1991) (traffic
citation is a non-custodial arrest); State v. Lamb, 202 Ga. App. 69, 71 (413 SE2d 511)
(1991) (Carley, P.J., concurring specially) (same).
6
has been committed. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (III) (121
SCt 1536, 149 LE2d 549) (2001) (probable cause requirement “applies to all arrests”)
(citations and punctuation omitted); Dunaway v. New York, 442 U.S. 200, 208 (99
SCt 2248, 60 LE2d 824) (1979) (same); Jones v. State, 291 Ga. 35, 37 (1) (727 SE2d
456) (2012) (“[A]rrests... can be supported only by probable cause.”) (citation and
punctuation omitted). Probable cause is a higher standard than that of reasonable
articulable suspicion. See Myers v. State, 333 Ga. App. 755, 758 (777 SE2d 44)
(2015). Probable cause to arrest requires “[f]acts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent person, or one of
reasonable caution, in believing, in the circumstances shown, that the suspect has
committed, is committing, or is about to commit an offense.” (Citation and
punctuation omitted). Hughes v. State, 296 Ga. 744, 748 (2) (770 SE2d 636) (2015).
See also Glenn v. State, 302 Ga. 276, 281 (III) (806 SE2d 564) (2017) (probable
cause requires “more than a mere suspicion or possibility.”) (citation and punctuation
omitted).
Here, the trial court found that Lewis showed the officer his insurance app,
which demonstrated Lewis had obtained insurance for the car seven days before the
stop. We cannot say that these findings are clearly erroneous based on the record.
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Lewis testified that he showed the officer his phone app and email confirming his
insurance coverage, and the documentation presented at the hearing showed that he
obtained that insurance on October 28, 2016. The officer did not dispute Lewis’
testimony; rather, he simply did not remember seeing the app. Moreover, the officer
conceded that in his experience sometimes cars with insurance showed up as having
no insurance in the police databases. Additionally, Lewis showed the trial judge a
screenshot of what he showed the officer during the stop. The trial judge relied
heavily on this evidence in granting the motion, both at the hearing and in his written
order. The appellate record contains no copy of this screenshot; therefore, we must
assume that screenshot supported the trial court’s findings. Cuyler v. Capital One
Bank (USA), N.A., 304 Ga. App. 687, 688 (1) (698 SE2d 14) (2010) (“In the absence
of the relevant information,” we apply “a presumption in favor of the regularity of
court proceedings[.]”) (citation and punctuation omitted).
Applying the appropriate standard of review, we must accept the trial court’s
finding that Lewis provided the officer with valid proof of insurance at the outset of
the traffic stop. Thus, we find that even though the officer had reasonable articulable
suspicion to initiate the traffic stop, once Lewis provided proof of insurance in a
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manner acceptable under OCGA § 40-6-10,5 the officer did not have probable cause
to arrest Lewis or issue him a citation. Without probable cause to issue the citation,
the officer had no basis for impounding Lewis’s vehicle. Accordingly, the trial court
properly granted the motion to suppress.6 Compare Davis v. State, 331 Ga. App. 171
(769 SE2d 183) (2015) (affirming denial of motion to suppress evidence seized
during inventory search where proof of insurance presented by defendant showed that
his insurance had expired and in officer’s call to insurance company, representative
stated that the policy for that particular vehicle could not be located).
Judgment affirmed. Barnes, P. J., and Mercier, J., concur.
5
OCGA § 40-6-10 (a) (1) (1.2) provides that “[t]he proof or evidence of
required minimum insurance coverage required by this subsection may be produced
in either paper or electronic format. Acceptable electronic formats include a display
of electronic images on a mobile electronic device.”
6
Moreover, to the extent that the officer claims to have acted based on a good
faith belief that Lewis was driving without insurance, our Supreme Court has found
that there is no good-faith exception under OCGA § 17-5-30. Gary v. State, 262 Ga.
573, 575-76 (422 SE2d 426) (1992). See also Harvey v. State, 266 Ga. 671, 672 (469
SE2d 176) (1996) (OCGA § 17-5-30 “authorizes no exception to Georgia’s
exclusionary rule when evidence has been seized unlawfully[.]”); Abercrombie v.
State, 343 Ga. App. 774, 791 (2) (b) (808 SE2d 245) (2017) (“Gary remains good law
and, as a result, is binding precedent on this Court.”).
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