State v. Holler , 224 Ga. App. 66 ( 1996 )

Beasley, Chief Judge,

concurring specially.

I concur in Division 1. As to Division 2, the trial court must be upheld because it made a fact determination which is supported by defendant’s evidence, although it is contrary to the State’s evidence. Its resolution of the conflict is not clearly erroneous, so we are bound to accept it. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

The trial court apparently did not accept the officer’s version of the circumstances existing at the time the defendant made the U-turn. The court measured the officer’s stop of defendant against the traffic law which prohibits a driver from turning a vehicle “so as to proceed in the opposite direction: . . . [w]here such turn cannot be made in safety and without interfering with other traffic.” OCGA § 40-6-121 (3). The court rejected the officer’s testimony about the conditions then present and his judgment that the conditions were unsafe for a U-turn or interfered with other traffic. The trial court also rejected, or regarded as inconsequential, the officer’s testimony that defendant stated when stopped that he had made an improper turn and had been advised by his wife not to make it. The court gave credence instead to defendant’s version, which was based on his wife’s testimony.

Decided December 17, 1996. Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellant. William C. Head, for appellee.

This we must accept, as the factfinder determines credibility. Tate, supra. It matters not whether the stop was pretextual or for the reason articulated by the officer. Even if for the latter, it was unsupported by indicia or symptoms of unsafety or traffic interference, when viewed in the context of the facts found by the trial court. The case does not reach the question of pretext, so I do not join in the discussion of the meaning of Whren v. United States, 517 U. S._ (116 SC 1769, 135 LE2d 89) (1996).

Based on the facts, the trial court concluded that the officer “lacked articulable suspicion to stop Defendant.” This was the application of the correct standard, as an investigating traffic stop must be based on information (including personal observation), supporting a “reasonable suspicion that [the person stopped] was engaged in criminal activity” Alabama v. White, 496 U. S. 325, 331 (110 SC 2412, 110 LE2d 301) (1990).