State v. Gibbons , 248 Ga. App. 859 ( 2001 )

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 person. 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.

Q. 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.

A. 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. No, not really.

Q. Do you mind if I search your pockets?

A. No.

Q. You don’t mind? What you got here? A pager?

[After this statement, trooper places hand inside right pocket and removes a pager.]

A. Yeah. Uh-huh.

Q. What you got in this pocket? Turn for me.

[Trooper places hand in left pocket.]

Q. You don’t have a hypodermic in there or nothing do you?

[Trooper removes plastic pill vial.]

Q. What’s in the vial here?

A. Nothing. Nothing, now.

Q. Cocaine residue? Is that what it is?

[Trooper handcuffs Stinemetz and places him in the back of his patrol car.]

After placing Stinemetz in the patrol car, the state trooper questioned Gibbons about their trip and how they knew each other. Gibbons’ answers agreed substantially with what Stinemetz had said. The trooper then arrested Gibbons for possession of the substance in the vial found in Stinemetz’s left pants pocket. The trooper then performed an inventory of Stinemetz’s car and found a package of cocaine in the trunk.

In a preliminary hearing held three months after the appellants’ arrest, the trooper’s testimony about his encounter with the appellants varied from both the videotape and his later testimony in the motion to suppress hearing. The trooper initially claimed that Stinemetz could not produce a valid driver’s license, but later admitted in the motion to suppress hearing that he had. He also testified in the preliminary hearing that he asked for Stinemetz’s consent to search the car and his person after questioning Gibbons about their itinerary and getting a “completely different” story. The videotape shows the trooper never asked for consent to search the car, that he did not question Gibbons before asking for consent to search Stinemetz’s pockets, and that the appellants’ stories were substantially similar. In the preliminary hearing, the trooper claimed that he asked to search Stinemetz for officer “safety,” but when asked what made him believe he was in jeopardy, the officer replied, “I don’t know. I don’t know the answer to that. Just twenty years of law enforcement you sometimes get an uneasy feeling about certain people.” In the later motion to suppress hearing, the officer claimed that he asked to search because he saw bulges in Stinemetz’s pockets and he “didn’t know if it was a knife or a gun.”

The trial court found that by asking questions unrelated to the seat belt violation, the trooper exceeded the authorized scope of the original stop. Therefore, the trial court found that the trooper’s detention of appellants was impermissible because he had no reasonable articulable suspicion for starting the new investigation. Because the evidence was seized during the unlawful detention, the trial court granted the motion to suppress.

An officer who questions and detains a suspect for reasons other than those connected with the original purpose of the stop exceeds the scope of permissible investigation unless he has “reasonable suspicion” of other criminal activity. Simmons v. State, 223 Ga. App. 781, 782 (2) (479 SE2d 123) (1996). This reasonable suspicion must be based on more than a subjective, general suspicion or hunch. Holden v. State, 241 Ga. App. 524, 525 (527 SE2d 237) (1999). The detention must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the detention, and the trooper must have some basis from which the court can determine that the detention was neither arbitrary nor harassing. Id.

In this case, the trooper admitted that he held Stinemetz’s driver’s license while asking questions that were not related to the seat belt violation.¹ According to the trooper, Stinemetz was “not free to go” while he asked these questions. The tape shows that when Stinemetz, who was obviously puzzled by the trooper’s detailed quizzing about his whereabouts, asked what he had done wrong, the trooper reminded him about the seat belt violation and then launched into his unrelated investigation once again.

The trial court did not err by concluding that the detention was unauthorized. Simmons v. State, supra, 223 Ga. App. at 782; Smith v. State, 216 Ga. App. 453, 454-455 (2) (454 SE2d 635) (1995). Because Stinemetz’s consent to search his person was the product of this illegal detention, it was not valid. VonLinsowe v. State, 213 Ga. App. 619, 622 (2) (445 SE2d 371) (1994). As the cocaine residue in the bottle and the cocaine in the trunk were located as a result of the illegal search of Stinemetz’s person, the trial court did not err by granting the motion to suppress this evidence.

Judgment affirmed.

Blackburn, C. J., concurs. Pope, P. J., Johnson, P. J., Smith, P. J., Ruffin, Miller, Ellington and Phipps, JJ., concur and concur specially. Andrews, P. J., Eldridge and Mikell, JJ., dissent.

1 There is no evidence that the trooper asked these questions while performing a license or vehicle registration check.