State v. Rheinlander , 286 Ga. App. 625 ( 2007 )

SMITH, Presiding Judge.

The State appeals the grant of Robb Rheinlander’s motion to suppress evidence of Rheinlander’s refusal to take a breath test in connection with charges of driving under the influence of alcohol. It contends that the trial court erred in finding that the arresting officer lacked sufficient reasonable and articulable suspicion to make an initial investigative stop of Rheinlander. We agree and therefore reverse.

“When the evidence is uncontroverted and no issues of witness credibility are presented, we review de novo the trial court’s application of the law to undisputed facts. [Cit.]” State v. Hammang, 249 Ga. App. 811 (549 SE2d 440) (2001). At the hearing on the motion to suppress, the officer who made the traffic stop was the only witness regarding the initial stop of Rheinlander.¹ At approximately 2:00 a.m., the officer was on patrol in a “slick top” patrol car, without a light bar on top but with two lights in the rear and flashing strobes in the brake lights. On North Druid Hills Road near Clairmont Road, the officer saw a traffic stop in progress in the far right turn lane and stopped to see if that officer needed assistance, pulling up in the through lane next to him and turning on his emergency equipment. As he was speaking with the second officer, the first officer looked in his rear-view mirror and saw a vehicle approaching his patrol car in his lane, from behind. While he watched, expecting that the vehicle would move over, it continued to approach, then “all of a sudden at the last minute he just changes lanes, kind of had me a little anxious.”

The first officer testified that the vehicle got within “5 to 10 feet” of the rear of his patrol car before suddenly changing lanes, although he could not say the exact distance, that it was close enough to alarm him and “got my adrenaline going,” and that it “almost hit me.” After the vehicle passed the police officers, it struck the yellow line, did not brake at first, then corrected and returned to the center of the lane. The officer decided to follow the vehicle, and it “continued to drift in his lane” until he engaged his emergency equipment and stopped it.

If the officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later legal determination that the defendant’s actions were not a crime according to a technical legal definition or distinction determined to exist in the penal statute. 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.

(Citations and punctuation omitted.) Hammang, supra, 249 Ga. App. at 811. Here, the trial court based its decision primarily on its assessment ofRheinlander’s perceptions of the ongoing traffic stop as he approached from behind in the dark, particularly what the trial court considered to be the reduced visibility of the “slick top” cruiser without a light bar.² The trial court concluded that Rheinlander did not “weave, speed, go through a red light, or commit any other traffic violation” after almost hitting the officer’s car, but the trial court never rejected any of the officer’s earlier testimony as untruthful or unbelievable, simply concluding that it “must be analyzed in the context of the total facts and circumstances.”

The trial court’s conclusion that Rheinlander could have had an innocent explanation for his last-minute swerve to avoid the “slick top” car goes to the question of his ultimate guilt or innocence. This is, however, not the dispositive question on a motion to suppress, in which the court must determine whether the police officer had an articulable suspicion that the defendant was involved in some illegal activity. The driver’s actions need not amount to a traffic violation, so long as the officer has a “reasonable, articulable suspicion that a traffic offense was being committed. [Cit.]” State v. Calhoun, 255 Ga. App. 753, 755 (566 SE2d 447) (2002). “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.” (Citations and punctuation omitted.) Id.

When approaching an emergency vehicle with its lights illuminated, drivers have the duty to change to a nonadjacent lane or to slow down and be prepared to stop. OCGA § 40-6-16 (a). By failing to change lanes and then approaching so closely as to have to swerve abruptly to avoid the officer’s car, the defendant appears to have violated this Code section, regardless of whether he kept control of his car or left his lane. He came so close to the patrol car that the police officer believed he “almost hit” him. We have held that testimony that a driver “almost hit” an officer standing by the side of the road is sufficient evidence to support a conviction for reckless driving. Graves v. State, 280 Ga. App. 420, 421 (634 SE2d 186) (2006). See also State v. Warren, 256 Ga. App. 185 (568 SE2d 120) (2002) (physical precedent only) (articulable suspicion when officer had to brake and pull over to avoid colliding with defendant merging into his lane).³

Here, the undisputed facts demonstrate that the officer had an articulable suspicion sufficient to stop the defendant to inquire further. “No purpose of deterrence would be served by suppressing the evidence found in this case, which was the product of a stop prompted by the officer’s legitimate concern for public safety.” (Citation and punctuation omitted.) Hammang, supra, 249 Ga. App. at 811. The trial court therefore appears to have had no legal basis to rule as it did, and we must reverse.

Judgment reversed.

Andrews, P. J., Johnson, P. J., Miller, Ellington and Adams, JJ., concur. Barnes, C. J., dissents.

1 The only other witness was a second officer who arrived on the scene after the stop and administered a field sobriety test.

2 In concentrating on whether the “slick top” patrol car could he seen by the defendant, however, the trial court ignores the undisputed presence of a standard patrol car with its lights illuminated, parked right beside the other patrol car.

3 The dissent cites the “right for any reason” rule with reference to a civil summary judgment. City of Gainesville v. Dodd, 275 Ga. 834 (573 SE2d 369) (2002). But that rule is not applicable here, both because the trial court erred in applying the law to undisputed facts and because, contrary to the dissent’s contention, the issue of Rheinlander’s near-miss of the officer’s patrol car was raised below and argued by counsel for both parties.