Howard v. State , 265 Ga. App. 835 ( 2004 )

Andrews, Presiding Judge.

Hershel Daniel Howard was found guilty in a bench trial of driving under the influence of alcohol and driving with an open container of alcohol. His sole claim on appeal is that the trial court should have granted his motion to suppress the evidence supporting the guilty verdicts because the police officer who stopped the vehicle he was driving did so without any reasonable basis under the Fourth Amendment. Because we find the officer had a reasonable basis to make an investigatory stop of the vehicle, the trial court correctly denied the motion to suppress. Accordingly, we affirm the judgment of conviction.

The evidence produced at the hearing on the motion to suppress showed the following: Two uniformed police officers drove their marked patrol cars to a house to serve a domestic violence arrest warrant on a male suspect who lived at the house. They drove down a short driveway to the house and parked the patrol cars. The house was located on a dirt road where only six other residences were located. The officers did not know what the suspect looked like and did not know what kind of vehicle he drove, although they did have some “information about a pickup and a trailer.” After being unable to find the suspect or anyone else at the house, one of the officers testified that he saw a pickup truck driven by a man stop on the road directly in front of the driveway to the house. The officer said the driver “looked up and saw us and kind of took off, which raised my suspicion a little bit.” Asked, “Who did you think was in the truck?” the officer replied: “Well, I didn’t know. My first thought was it was the person I was looking for at the house.”

When the driver of the truck took off, the officer followed in his patrol car, ran the tag on the truck and determined it was not registered to the suspect, then stopped the truck to see if the driver was the suspect he was looking for. The officer testified that, in his five years of experience in serving arrest warrants, it was not uncommon that persons who know they are wanted to drive someone else’s vehicle. The driver of the truck was not the suspect, however, but Howard, who identified himself as the suspect’s brother-in-law. Howard told the officer he was aware of the arrest warrant and that he drove to the house to make sure his brother-in-law had been arrested. During this conversation, the officer noticed a strong odor of alcohol coming from the truck, and in response to the officer’s question, Howard admitted he had been drinking. Howard also admitted he was drinking a beer in the truck just before the officer stopped him, and the officer saw a case of beer in the back seat of the truck. The officer asked Howard to step out of the truck to perform field sobriety tests, and when Howard failed to pass the tests, the officer arrested him on DUI and open container charges.

The issue in this case is whether the officer had a reasonable basis to make an investigatory stop of Howard’s truck. The Fourth Amendment protection against “unreasonable searches and seizures” extends to brief investigatory stops of persons and vehicles that fall short of having the probable cause necessary for a traditional arrest. Vansant v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994); Terry v. Ohio, 392 U. S. 1, 9 (88 SC 1868, 20 LE2d 889) (1968); United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981). In such cases, the Fourth Amendment requires that the detaining officer have a reasonable suspicion of criminal activity. Vansant, 264 Ga. at 320. In deciding if reasonable suspicion existed, a reviewing court must look at the “totality of the circumstances” to determine whether the detaining officer had a “particularized and objective basis” for suspecting criminal activity. Id.; Cortez, 449 U. S. at 417-418. “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” (Citations and punctuation omitted.) United States v. Arvizu, 534 U. S. 266, 273 (122 SC 744, 151 LE2d 740) (2002).

Here, it was reasonable for the officer to infer, based on his training, experience, and common sense, that the man driving the truck who stopped, looked at him while he was at the house attempting to serve the warrant, and then “took off,” could be the man he was trying to find and arrest. That the officer also had some indication the suspect might be driving a truck, and the house was located on a sparsely populated dirt road not likely to be heavily traveled by nonresidents, made the officer’s inference even more reasonable. Under the totality of the circumstances, the officer had a particularized and objective basis for suspecting that the driver of the truck was the suspect trying to elude arrest. Although the officer’s investigation revealed that the driver was not the suspect, “[a] determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.” Arvizu, 534 U. S. at 277.

It was reasonable under the Fourth Amendment for the officer to stop the truck to identify the driver. After making a valid stop to check the driver’s identity, the officer’s detection of the strong odor of alcohol made it reasonable for him to continue the detention to ask Howard if he had been drinking. Bell v. State, 248 Ga. App. 254, 256-257 (546 SE2d 34) (2001).

Contrary to Howard’s contention, the decision in State v. Mallard, 246 Ga. App. 357 (541 SE2d 46) (2000), does not require a finding that the investigative stop of the vehicle for the sole purpose of identifying the driver violated the Fourth Amendment. The facts in Mallard distinguish it from the present case and show that there is no broad rule against stopping a car to identify the driver. In Mallard, police officers who were preparing to execute a search warrant for marijuana on a known suspect’s residence received information that two unidentified persons had just left the residence in a car prior to execution of the warrant. Id. at 357-358. An officer stopped the car for the sole purpose of determining if the known owner of the residence about to be searched was in the car. Id. After determining that the owner of the residence was not in the car, the officer continued the detention by asking the occupants if they had any marijuana, and both occupants produced marijuana. Id. Because the detaining officer had no information that the two occupants of the car were involved in any wrongdoing, we found that stopping and questioning the occupants solely to see who was in the car violated the Fourth Amendment, and we upheld suppression of the marijuana. Id. at 360-361, 365. In so holding, however, we noted that an investigative stop would have been justified under the circumstances if “there were some objective manifestations that the occupant in the vehicle leaving the search location was engaged in criminal activity.” Id. at 361.

The Fourth Amendment does not prohibit a police officer from stopping a car for the sole purpose of identifying the driver where the officer has reasonable suspicion that the driver is a person attempting to elude arrest. Because the officer in this case had such reasonable suspicion, the stop was valid, and the trial court correctly denied the motion to suppress.

Judgment affirmed.

Johnson, P. J., Blackburn, P. J., Eldridge and Mikell, JJ., concur. Barnes and Adams, JJ., dissent.