Blanks v. the State

SECOND DIVISION
ANDREWS, P. J.,
MILLER and BRANCH, JJ.
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
November 3, 2015
In the Court of Appeals of Georgia
A15A1064. BLANKS v. THE STATE.
BRANCH, Judge.
After a dispatcher informed an officer that a black Chevrolet Sonoma pickup
truck had been seen speeding southbound on Peachtree Parkway but failed to relate
other details from the 911 call, the officer performed a traffic stop without personally
witnessing any traffic violations; the traffic stop ultimately led to Christopher
Blanks’s arrest for driving under the influence. Following a bench trial based on
stipulated evidence, Blanks was convicted of driving under the influence. On appeal,
he contends the trial court erred by denying his motion to suppress evidence obtained
during his traffic stop. We affirm.
On review of a ruling on a motion to suppress, the trial judge’s findings of fact
should not be disturbed if there is any evidence to support them; determinations of
fact and credibility must be accepted unless clearly erroneous; and the evidence must
be construed in favor of the trial court’s findings and judgment. Tate v. State, 264 Ga.
53, 54 (1) (440 SE2d 646) (1994); Jackson v. State, 258 Ga. App. 806, 807-808 (2)
(575 SE2d 713) (2002). “In all cases, [appellate courts] independently apply the law
to the facts.” Drake v. State, 296 Ga. 286, 288 (2) (766 SE2d 447) (2014) (citation
omitted).
In its order denying Blanks’s motion to suppress, the trial court found as a
matter of fact that an anonymous person called 911 to report that he had observed a
black GMC Sonoma truck driving southbound on Peachtree Parkway in Peachtree
City in an erratic fashion, including accelerating up to speeds of 60 miles per hour
and slowing down and weaving from side to side on the roadway. The tape recording
of the 911 call supports these findings. The recording shows that the caller was on the
call for almost five minutes. During that time, the caller reported that he was
following a black Chevrolet Sonoma pickup truck on Peachtree Parkway that could
not stay within the lines, was “all over the road,” and at one point was traveling 60
mph in a 40 mph zone. The caller reported the events as they were happening,
including identifying the cross streets and a middle school that the truck was passing,
thereby indicating the truck’s location and direction of travel. At several intervals, the
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911 operator confirmed with the caller that the caller still had the truck in sight. The
caller reported that the truck appeared to have a male driver and a female passenger.
About 4:00 minutes into the call, the caller reported that the truck was approaching
a cross street called “Crosstown” and that he saw an officer making a u-turn. The
caller then had to turn and reported that the truck was proceeding through the
intersection and continuing on Peachtree Parkway.
The trial court found that the dispatcher issued an alert, received by Officer
DiGrazia of the Peachtree City Police Department, that a black Sonoma was being
operated southbound and was speeding, and that DiGrazia saw a truck fitting the
description and conducted a traffic stop. Officer DiGrazia’s testimony and her video
recording of the traffic stop support this finding. DiGrazia testified that at 2:57 a.m.
when there was very little traffic, she received the dispatcher’s call to lookout for a
southbound black Sonoma that was traveling southbound on Peachtree Parkway
coming in her direction and that the truck was speeding. DiGrazia was located a short
distance south from the intersection between Peachtree Parkway and Crosstown
facing southbound on Peachtree Parkway. Within minutes, DiGrazia subsequently
saw a black Sonoma being driven by Blanks, she followed briefly to verify the type
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of truck, then activated her blue lights and conducted a traffic stop in an apartment
complex parking lot into which Blanks had turned.
It is not disputed that when DiGrazia spoke to Blanks, she could smell an odor
of alcohol coming from his person. When she asked Blanks if he had anything to
drink, Blanks responded, “No.” Blanks agreed to perform field sobriety tests and to
provide a roadside sample of his breath which tested positive for alcohol. Based on
the results of both tests, DiGrazia arrested Blanks for driving under the influence to
the degree that he was less safe.
The trial court held that, based on the information known to DiGrazia,
DiGrazia had reasonable articulable suspicion to stop Blanks for the offense of
speeding and that she was not required to question the dispatcher about the source of
the information or wait until she observed criminal activity. The court concluded that
the traffic stop was proper and that the officer had probable cause to arrest Blanks;
thus, the court denied the motion to suppress.
The parties later agreed to submit the transcript of the hearing on the motion
to suppress as the evidence against Blanks, together with a stipulation that Blanks
was eventually tested and determined to have a blood alcohol level between .137 and
.140. Blanks was convicted of driving under the influence, less safe.
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1. Although Blanks contends the trial court erred by denying his motion to
suppress on the ground that the officer lacked articulable suspicion to stop him, he
does not challenge the court’s findings of fact in the order on the motion to suppress,
and, as shown above, they are supported by the record. Rather, Blanks asserts that
because the dispatcher relayed only part of the information obtained from the 911
caller to DiGrazia—that is, that a black Sonoma was being operated southbound and
was speeding —the information known to DiGrazia provided an insufficient basis for
her to perform a traffic stop. He notes that DiGrazia did not have the license tag
number of the vehicle, a description of the driver, or any indication of wrongdoing
other than speeding.
“The Fourth Amendment permits brief investigative stops—such as the traffic
stop in this case—when a law enforcement officer has ‘a particularized and objective
basis for suspecting the particular person stopped of criminal activity.’” Navarette v.
California, _ U. S. _ (II) (134 SCt 1683, 188 LE2d 680) (2014), quoting United
States v. Cortez, 449 U. S. 411, 417-418 (II) (A) (101 SCt 690, 66 LE2d 621) (1981).
The officer’s knowledge is based on the totality of the circumstances:
The “reasonable suspicion” necessary to justify such a stop is dependent
upon both the content of information possessed by police and its degree
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of reliability. The standard takes into account the totality of the
circumstances—the whole picture. Although a mere hunch does not
create reasonable suspicion, the level of suspicion the standard requires
is considerably less than proof of wrongdoing by a preponderance of the
evidence, and obviously less than is necessary for probable cause.
Naverette, _ U. S. at _ (II) (citation and punctuation omitted).
(a) We first agree with the State that the question whether DiGrazia had
articulable suspicion to perform the stop should be resolved based on all the
information known to both DiGrazia and the dispatcher. “Probable cause [and
articulable suspicion] may rest upon the collective knowledge of the police when
there is some degree of communication between them, rather than solely on the
information possessed by the officer who actually makes the arrest.” Goodman v.
State, 255 Ga. 226, 229 (13) (336 SE2d 757) (1985) (citation omitted); State v.
Maddox, 252 Ga. App. 414, 416 (556 SE2d 501) (2001) (“Police officers are
authorized to use information received by radio dispatch as part of their basis for
articulable suspicion to conduct a stop.”) (footnote omitted); Buffington v. State, 228
Ga. App. 810, 811 (492 SE2d 762) (1997). Thus, we are authorized to consider the
additional details regarding Blanks’s driving that the caller provided during the 911
call but that were not related to DiGrazia.
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(b) Next, despite the fact that the information was provided by an anonymous
caller, the totality of the circumstances provided sufficient articulable suspicion for
DiGrazio to stop Blanks. The use of anonymous tips as part of the basis for
reasonable suspicion depends on whether there are sufficient indicia of reliability to
those tips:
Unlike a tip from a known informant whose reputation can be assessed
and who can be held responsible if her allegations turn out to be
fabricated, an anonymous tip alone seldom demonstrates the informant’s
basis of knowledge or veracity. As we have recognized, however, there
are situations in which an anonymous tip, suitably corroborated, exhibits
sufficient indicia of reliability to provide reasonable suspicion to make
the investigatory stop.
Florida v. J. L., 529 U. S. 266, 270 (II) (120 SCt 1375, 146 LEd2d 254) (2000)
(citation and punctuation omitted).
In Navarette, a dispatcher broadcast that a 911 caller had reported that a
southbound silver Ford 150 with a certain license tag number had run the caller off
the roadway and was last seen about five minutes earlier. Navarette, __ U. S. at __.
An officer responded to the broadcast and pulled the truck over, a second officer
arrived on the scene, and both officers smelled marijuana as they approached the
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truck. Id. The officers saw 30 pounds of marijuana in the truck bed and therefore
arrested the driver and passenger. Id.In addressing the denial of the defendants’ motion to suppress the evidence, the
Supreme Court analyzed whether the 911 call had sufficient indicia of reliability to
support the traffic stop. The Supreme Court first found that the fact that the tipster
reported that she had been run off the road by a specific vehicle showed that she
“claimed eyewitness knowledge of the alleged dangerous driving,” which supports
the tip’s reliability and implies that the car was being driven dangerously. Navarette,
__ U. S. at __ (II) (B).The court also found that the caller’s nearly contemporaneous
call following the incident suggested reliability, id. at __ (II) (B), and that the caller’s
use of the 911 emergency system indicated veracity because 911 calls are recorded,
phone numbers are captured, and the caller’s location can often be determined,
significantly reducing anonymity. Thus, the court concluded, there were some indicia
of reliability surrounding the anonymous tip. Id.The court also explained that “[e]ven a reliable tip will justify an investigative
stop only if it creates reasonable suspicion that ‘criminal activity may be afoot.’”
Navarette, _ U. S. at _ (II) (C) quoting Terry v. Ohio, 392 U. S. 1, 30 (V) (88 SCt
1868, 20 LE2d 889) (1968). The court noted that “[t]he 911 caller in this case
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reported more than a minor traffic infraction and more than a conclusory allegation
of drunk or reckless driving. Instead, she alleged a specific and dangerous result of
the driver’s conduct: running another car off the highway.” Id. The court concluded
that the 911 caller’s report of being run off the roadway, “viewed from the standpoint
of an objectively reasonable police officer, amounts to reasonable suspicion of drunk
driving.” Id. (citation and punctuation omitted). The court noted, however, that
“[u]nconfirmed reports of driving without a seatbelt or slightly over the speed limit,
. . . are so tenuously connected to drunk driving that a stop on those grounds alone
would be constitutionally suspect.” Id.Here, the 911 call contained several similar indicia of reliability. First, the
caller was reporting the information live while mostly keeping the black Sonoma in
sight. Thus, his report was that of an eye witness and was made contemporaneously
with the events that he was observing. The caller also provided live updates on the
vehicle’s location and provided additional detail, when asked by the dispatcher, about
how the vehicle was being operated during the time that the caller was on the phone.
And for the same reasons explained in Navarette, the caller’s hope to remain
anonymous when making a 911 call has been undermined by modern technology and
regulation. We conclude that the 911 call in this case contained sufficient indicia of
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reliability to allow consideration of the information contained in the call when
determining whether DiGrazia had articulable suspicion to stop the vehicle.
Next, as in Navarette, the 911 call raised a reasonable inference that the vehicle
was being operated by someone under the influence of drugs or alcohol. At 3:00 a.m.,
the driver was swerving “all over the road,” could not “keep it between the lines,” and
at one point was traveling approximately 60 miles per hour in a 40 mile per hour
zone. The caller’s information, therefore, provided a reasonable officer with sufficient
information that “a crime was afoot,” namely, that a person on the road at 3:00 a.m.
was incapable of operating their vehicle properly, thus raising a reasonable inference
of drunk driving. Navarette, _ U. S. at _ (II) (C).
(c) Finally, to the extent that Blanks contends that DiGrazia did not have
enough descriptive information to stop the correct automobile, the trial court’s
implicit finding that DiGrazia stopped the truck that was the subject of the 911 call
is supported by the record and not clearly erroneous. The 911 caller gave the make,
model, and color of the vehicle, he followed the truck for almost five minutes on
Peachtree Parkway all the way to the intersection with Crosstown; DiGrazia was
parked just south of Crosstown on Peachtree Parkway; only minutes after hearing the
initial dispatch to be on the lookout for the black Chevrolet Sonoma, DiGrazia saw
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a truck fitting that description, traveling in the direction given by the caller; and it
was 3:00 a.m. and there were very few other vehicles on the road.
In sum, the trial court did not err by concluding that DiGrazia had articulable
suspicion to perform the traffic stop. See State v. Durr, 274 Ga. App. 438, 439 (1)
(618 SE2d 117) (2005) (even “weaving within a lane may be justification for a traffic
stop because it could indicate that the driver is under the influence of alcohol”)
(citations omitted); Veal v. State, 273 Ga. App. 47, 49 (614 SE2d 143) (2005)
(driving 30 mph below speed limit and weaving within a lane provided articulable
suspicion of driving under the influence of alcohol).
2. Blanks also challenges the trial court’s determination that following the
roadside tests for driving under the influence, DiGrazia had probable cause to arrest.
Sufficient probable cause to conduct a DUI arrest only requires that an
officer have knowledge or reasonably trustworthy information that a
suspect was actually in physical control of a moving vehicle, while
under the influence of alcohol to a degree which renders him incapable
of driving safely.
Trotter v. State, 256 Ga. App. 330, 331-332 (1) (568 SE2d 571) (2002) (footnotes
omitted). “The test of probable cause requires merely a probability—less than a
certainty but more than a mere suspicion or possibility.” Firsanov v. State, 270 Ga.
11873, 875 (3) (513 SE2d 184) (1999) (citation and punctuation omitted). And “[i]t is
not necessary for the officer to actually see the suspect driving for there to be
probable cause to make a DUI arrest.” Trotter, 256 Ga. App. at 332 (footnote
omitted).
Here, after the traffic stop, DiGrazia detected the odor of alcohol coming from
Blanks’s person, and one of the field sobriety tests (the Horizontal Gaze Nystagmus
Test) and the portable breath test both indicated that Blanks was under the influence
of alcohol. Also, as already explained, probable cause may rest on the collective
knowledge of the investigating officers as long as there is some degree of
communication between them. Thus, the facts that Blanks was swerving, unable to
maintain his lane, and speeding may also be considered. We therefore conclude that
the totality of the above circumstances provided DiGrazia with sufficient probable
cause to arrest Blanks for driving under the influence of alcohol to the degree that he
was less safe. See Harkleroad v. State, 317 Ga. App. 509, 512 (1) (c) (732 SE2d 278)
(2012) (defendant’s speeding, bloodshot eyes, odor of alcohol and failing the HGN
test gave officer probable cause to arrest defendant for DUI); see also Cann-Hanson
v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996) (“the results of the field
sobriety tests constitute[ ] admissible evidence of probable cause to support [an]
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arrest”); compare Bostic v. State, 332 Ga. App. 604, 605 (774 SE2d 175) (2015)
(driver’s admission that he had consumed one beer, his watery eyes, and a positive
alco-sensor test, together with the fact that no erratic driving was observed, without
more, did not constitute probable cause to arrest for DUI).
Judgment affirmed. Andrews, P. J., and Miller, J., concur.
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