Moss v. the State

FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J., and BOGGS, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
September 23, 2015
In the Court of Appeals of Georgia
A15A0904. MOSS v. THE STATE. BO-035
BOGGS, Judge.
After being stopped at a traffic safety checkpoint, Kyle Moss was charged by
accusation with two counts of driving under the influence of alcohol. Moss was found
guilty in a bench trial on stipulated facts, and he appeals, asserting as his sole
enumeration of error the denial of his motion to suppress. He contends that the State
failed to establish that the checkpoint had a valid purpose when viewed at the
programmatic level, in accordance with the Georgia Supreme Court’s recent decisions
in Williams v. State, 293 Ga. 883 (750 SE2d 355) (2013), and Brown v. State, 293 Ga.
787 (750 SE2d 148) (2013).1 In denying Moss’ motion to suppress, the trial court
1
The checkpoint at which Moss was stopped took place on April 19, 2013.
Williams and Brown were decided on October 21, 2013, and the hearing on Moss’
motion to suppress occurred on December 18, 2013.
explicitly found that “[a]t the programmatic level, the testimony indicated that the
purpose for the checkpoints is to check licenses, the drivers’ conditions, and vehicle
registration.” Because this finding was supported by some evidence, we affirm.
In Williams and Brown, supra, both decided on the same day, our Supreme
Court held that “the State must show that the law enforcement agency’s checkpoint
program had an appropriate primary purpose other than ordinary crime control – a
purpose examined at that programmatic level, rather than by trying to determine the
motives of the supervisor who implemented and the officers who conducted the
particular checkpoint at issue. [Cit.]” Brown, supra, 293 Ga. at 798-799 (2) (f); see
also Williams, supra, 293 Ga. at 886-887 (2). With regard to “the primary purpose of
the [law enforcement] agency’s overall checkpoint program[,]” the State must show
that “at that programmatic level . . . the agency has not authorized vehicle checkpoints
primarily for general crime control but rather for an appropriately limited purpose like
traffic safety.” (Citations, punctuation, and footnote omitted.) Brown, supra, 293 Ga.
at 798-799 (2) (e). Brown also notes the appropriate standard of review: if the trial
court’s factual determination was supported by some evidence and therefore not
clearly erroneous, the court’s order on the motion to suppress should be affirmed. Id.
2
at 788; see also Williams, supra, 293 Ga. at 889 (2) (a) (“We must defer to that
finding if there is any evidence in the record to support it.” [Cit.]”)
It is not in dispute that the Cobb County Police Department has a detailed
written policy governing permissible purposes for checkpoints. The policy was
discussed at considerable length at the hearing by counsel, the trial court, and the
witnesses, and Moss’ counsel referred to it by its section number. Moreover, Brown,
supra, 293 Ga. at 788 (1) (a), and that case’s earlier appearance before this court,
State v. Brown, 315 Ga. App. 154, 159 (726 SE2d 654) (2012), also addressed a Cobb
County police roadblock and quoted extensively from the text of the provision in
question. Brown was cited repeatedly in the hearing by the parties and the trial court.
But the State failed to identify or introduce a copy of the written policy into evidence
at the hearing on the motion to suppress, and it is not part of the record before us.2
But even in the absence of a copy of the written policy, as our Supreme Court
noted in Williams, supra:
2
In its brief, the State asserts the contents of the policy, citing Brown. In some
circumstances, “this Court may take judicial notice of the records of other cases
before this Court, in the interest of doing substantial justice and as a means of judicial
economy,” Davis v. State, 287 Ga. 414, 415 n.1 (696 SE2d 644) (2010). But under
both current and former law, a court must explicitly do so. See OCGA § 24-2-201;
Graves v. State, 269 Ga. 772, 775 (4) (a) (504 SE2d 679) (1998), overruled on other
grounds, Jones v. State, 272 Ga. 900, 903(2) n.13 (537 SE2d 80) (2000).
3
[t]he Constitution . . . does not mandate that a law enforcement agency
delineate its checkpoint program in writing (although a written policy
certainly provides clearer guidance to the agency’s officers and stronger
proof for reviewing courts). We therefore must also consider whether
the State offered any other evidence that the primary purpose of the
BCSO’s vehicle roadblock program was properly limited, such as
testimony about restrictions being imposed through verbal orders or
training or records showing that checkpoints have been done only for an
appropriate purpose.
(Emphasis supplied.) 293 Ga. at 892 (3) (b). See also id. at 893 (3) (b) n. 5 (State may
show that a “checkpoint program has an appropriate purpose other than general crime
control.)”
In Williams, no such testimony or records were offered into evidence.3 Here,
however, the State introduced additional testimony and documents to show that the
primary purpose of the county’s checkpoint program was properly limited on a
programmatic level. A two-page document titled “Cobb County Police Department/
Uniform Division/ Traffic Services Unit/ Safety Checkpoint Log” was identified and
3
In Williams, the “two-sentence vehicle roadblock policy . . . authorize[d]
‘general roadblocks which serve legitimate law enforcement purposes,’ without
limitation,” id. at 892 (3) (b), and no testimony or other evidence was presented that
the programmatic policy “excluded checkpoints for purposes of general crime
control.” Id.
4
introduced into evidence. This document includes pre-printed checklists for numerous
details of checkpoint planning and operation, including “Site Selection
(Method/Reason)” with a series of boxes to be checked as applicable including
“Crash Analysis Report,” “Sobriety Checkpoint,” and “Other (Describe in
Summary).” The “Other” box was checked and the summary reads: “Checkpoint
established to ensure driver’s were complying with all applicable driver’s license and
insurance requirements. Any other violations of law discovered during this encounter
was investigated and handled by the officers. [Sic.]” The road sergeant who
implemented the checkpoint testified that he completed the forms in the course of
supervising the checkpoint. He acknowledged the county policy governing
checkpoints and specifically section 5.19 of the police department manual, but added
that it had “been a while” since he had read it.
Asked about the primary purpose of the checkpoint, the sergeant testified that
in the absence of specialty training, the county’s road officers’ “primary, sole purpose
in doing a checkpoint would be just to check for, like I say, license, insurance. In fact,
we don’t have any – we don’t do specialized checkpoints.” He reiterated on cross-
examination that “[t]hat’s the main purpose we do checkpoints for as road officers”
and that “[o]ur sole purpose . . . is to set it up and do driver’s license and insurance.”
5
He also testified that he had no “input in or authority over the policy.” The sergeant’s
testimony that the sole purpose for which road officers were authorized to set up a
checkpoint was driver’s licenses and insurance necessary excludes other purposes,
including those of general crime control.
The State therefore did present some evidence supporting the trial court’s
conclusion. The log itself is an official record at the programmatic level, “showing
that checkpoints have been done only for an appropriate purpose.” Williams, supra,
293 Ga. at 892 (3) (b). Compare Armentrout v. State, 332 Ga. App. 370, 374 (1) (772
SE2d 817) (2015) (“there was no testimony nor any written evidence admitted
regarding the . . . checkpoint policy or program as a whole.”) The sergeant’s
testimony regarding the limitation of road officers’ purposes for checkpoints, taken
in conjunction with the log and the limitations shown there, authorized the trial court
to conclude that at the programmatic level, the Cobb County Police Department
authorizes checkpoints for the purpose of checking licenses and insurance, and not
for general crime control. While we agree with our Supreme Court that “a written
policy certainly provides clearer guidance to the agency’s officers and stronger proof
for reviewing courts,” Williams, supra, 293 Ga. at 892 (2) (b), the evidence was
sufficient to support the trial court’s ruling.
6
Judgment affirmed. Doyle, C. J. and Phipps, P. J., concur.
7