Van Alstine v. State

Blackburn, Presiding Judge.

Following a bench trial and the subsequent denial of his motion for new trial, James Edward Van Alstine appeals his conviction for trafficking in methamphetamine, contending that the trial court erred by denying his motion to suppress. Because we hold that the trial court correctly concluded that the drug was properly seized, we affirm.

When reviewing a trial court’s order denying a motion to suppress evidence, we are guided by three principles:

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.

(Citations, punctuation and emphasis omitted.) Tate v. State.¹

So construed, the evidence shows that deputies were searching for a fugitive wanted on several warrants. While assisting these deputies, an informant saw a truck and its driver and told the deputies that the driver of a truck was the fugitive they were seeking. Based on this information, the first investigating deputy approached the truck to conduct a Terry stop. The truck’s driver stepped out, identifying himself as James Van Alstine (the fugitive’s brother) and gave the deputy his driver’s license. Although this appeared to be correct, the first deputy decided to have a second deputy (more familiar with the fugitive) come over to confirm the driver’s identity.

The second deputy asked the driver to confirm his identity. Wdien the driver repeated to the second deputy that he was the fugitive’s brother, the deputy “at that point... saw a knife in his pocket.” The deputy described the knife as follows: “It was a clip knife. It had a little clip on it where they stick it on the side of their pocket to hold it.”

The second deputy then asked the driver if he had any knives or guns on his person, to which the driver answered no. Concerned about this fabrication and about his own safety, the second deputy asked the driver to remove all items from his pockets. When the driver nervously attempted to hide something in his waistband rather than comply, the deputy pushed him against the truck and ordered him not to move. The driver attempted to flee and was caught and forced to the ground, where the deputies found suspected methamphetamine under him when he rolled over. This resulted in the driver’s arrest and the search of his truck, which contained trafficking amounts of methamphetamine.

Based on this evidence, the trial court denied Van Alstine’s motion to suppress the methamphetamine, finding that his stop and search were proper under Terry. Van Alstine now challenges this ruling, contending that: (1) the first deputy had no right to detain him after he told him that he was not the fugitive sought by police, and (2) the second deputy had no grounds to search him. Viewing the evidence in the light most favorable to the trial court’s denial of Van Alstine’s motion to suppress, as we must, these contentions are erroneous.

1. Van Alstine contends that, after he showed his driver’s license to the first deputy and told him he was not the fugitive, the first deputy no longer had any reason to detain him. The trial court found that, at the time the first deputy asked for the second deputy’s assistance in determining whether Van Alstine was the fugitive, the deputies “weren’t sure that [the fugitive] was not there and apparently didn’t trust the people they were talking to and continued to stabilize the premises.” The first deputy’s testimony supports the trial court’s finding, as he stated that he turned Van Alstine over to the second deputy because he “had more knowledge of who we were looking for.” Because this testimony supports the trial court’s finding, we must accept it, just as we would be required to accept the factual finding of a jury. Tate, supra.

Van Alstine would have us scrutinize the record to reach a different conclusion. But any arguments to the contrary based on portions of the record less favorable to the trial court’s ruling have no bearing on this case at the appellate level and cannot change the result. Therefore, the testimony that it may have been apparent to those other than the first deputy that Van Alstine was not the fugitive does not alter the outcome here and, indeed, pursuant to our appellate standard of review, cannot appropriately be considered in reaching our conclusion.

2. Van Alstine also contends that the methamphetamine he was found carrying must be suppressed because the second deputy had no right to search him. Specifically, Van Alstine argues that the second deputy only saw a clip attached to his pocket, and that it was unreasonable for the second deputy to fear that he was carrying a weapon. Again, following our standard of review, this contention lacks merit.

Viewed in the light most favorable to the trial court’s ruling, the transcript shows that the second deputy expressly testified, “I saw a knife in his pocket.” Immediately thereafter, the second deputy explained that he recognized it as a clip knife with “a little clip on it where they stick it on the side of their pocket to hold it.” Based on this testimony, the trial court, after judging the second deputy’s credibility and considering the type of knife under consideration, expressly found that the deputy “saw the knife.” As there was certainly some evidence to support this finding, we must accept it.

Van Alstine’s arguments based on countervailing evidence does not alter the result here. Although he argues vociferously that the second deputy could not have recognized that he had a clip knife in his pocket based on his observation of the attached clip, the trial court found otherwise.

Because we are required to affirm the trial court’s fact findings “if there is any evidence to support [them],” (punctuation omitted) Tate, supra at 54 (1), we affirm the trial court’s findings as to (a) the first deputy’s desire to confirm his preliminary conclusion by having the second deputy briefly continue the interrogation of the driver and (b) the second deputy’s seeing the knife and attempting to protect himself. We therefore affirm the trial court’s ruling denying the motion to suppress.

Judgment affirmed.

Andrews, P. J., Eldridge and Adams, JJ., concur. Ruffin, P. J., Barnes and Mikell, JJ., dissent.

1 Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).