Oftentimes police officers stop Defendants based on License plate recognition equipment, errors in believing a traffic violation has ocurred and other unsavory excuses. The case law looks at the various ways that police officers have pulled people over and many times that is upheld. There are also many times where the court says the stop was invalid and grants the motion to suppress. I have included cases in thia blog that go both ways.
O.C.G.A. § 40-6-391(a)(1) [the so-called “less safe” DUI] provides:
(A)
(a) A person shall not drive or be in actual physical control of any moving vehicle while:
(1)
(1) Under the influence of alcohol to the extent that it is less safe for the person to drive[.]
In seeking to prove a “less safe” DUI, the State may or may not have a chemical sobriety test result to support this count. A conviction for this type of DUI offense can be based entirely upon circumstantial evidence about a “moving vehicle.” See Jenkins v. State, 223 Ga. App. 446, 478 S.E.2d 143 (1996), where defendant was passed out in another person's private driveway, behind the steering wheel of a parked car. Also see Hutto v. State, 259 Ga. App. 238, 576 S.E.2d 616 (2003), police officer noticed defendant sitting on a motorcycle parked at midnight close to the edge of the highway and approached the defendant because the officer believed this to be a “traffic hazard.” Conviction for DUI and operating an unregistered vehicle affirmed. Also see State v. Underwood, 257 Ga. App. 893, 572 S.E.2d 394 (2002) for a good description of what the word “stopped” means. In that case, the officer approached Underwood's already stopped car. Under this “first tier” of police citizen encounter, as set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), no articulable suspicion is needed to justify police inquiry. The court similarly held that evidence obtained after the police officer spoke with the defendant through an open window of defendant's truck was not the result of an unlawful search or seizure where the police officer merely approached defendant's stationary vehicle to find out what was going on. Because he was already parked outside an ex-girlfriend's house, the police encounter did not begin as a "second tier" Terry stop. There was no evidence that the officer was threatening or coercive or that defendant was "seized" by any show of authority or physical force.
A police officer must have sufficient probable cause to conduct an arrest for driving under the influence of intoxicants (DUI).1 For an officer to have sufficient probable cause to conduct a valid arrest for DUI, such officer must have knowledge or reasonably trustworthy information that the defendant was in actual physical control of a moving vehicle, while under the influence of any drug, to a degree rendering the defendant incapable of driving safely.2 Probable cause to make an arrest for DUI exists where a defendant smells of alcohol, appears flushed, and has open cans containing beer in the car.3
Evidence that shows only that a defendant had alcohol in the defendant's body while driving provides insufficient probable cause to arrest for DUI.4 Thus, if the evidence shows only that a driver is intoxicated but does not show that such has impaired the driver, the evidence is insufficient to show probable cause for a DUI arrest.5 Similarly, a positive alco-sensor result shows only the presence of alcohol, not that the driver is intoxicated and that it is less safe for the individual to drive, for purposes of determining whether there was probable cause for an arrest.6 Impaired driving ability, as required for probable cause to arrest a driver for DUI, depends solely upon an individual's response to alcohol, and because individual responses to alcohol vary, the presence of alcohol in a defendant's body, by itself, does not support an inference that the defendant was an impaired driver.7
Illustrations:
A police officer's observations during an attempt to conduct a horizontal gaze nystagmus test regarding a defendant's inability to keep his eyes open, and two signs from the test indicating intoxication, provided adequate probable cause to arrest for DUI.8 In addition, a police officer had probable cause to detain a defendant at the scene of an accident and to arrest him for driving under the influence less safe, where the officer observed only a single set of skid marks on the roadway, which indicated that the defendant had over corrected to avoid an oncoming vehicle, the officer smelled alcohol on the defendant's person, and the defendant admitted that he had consumed alcoholic beverages.9
Practice Tip:
Where the underlying facts on a motion to suppress in a prosecution for DUI to the extent that it was less safe to drive support conflicting inferences as to whether the defendant was an impaired driver, the court of appeals applies a clearly erroneous standard of review and defers to the trial court's finding on the issue.10
CUMULATIVE SUPPLEMENT
Cases:
Evidence was sufficient to support finding that police officer had reasonable suspicion for traffic stop of defendant for illegal turn, where police officer testified that he specifically remembered other cars following closely behind defendant when defendant abruptly turned without a signal. U.S.C.A. Const.Amend. 4;West'sGa.Code Ann. § 40–6–123. Scandrett v. State, 293 Ga. 602, 748 S.E.2d 861 (2013).
Police officer had probable cause to arrest defendant for driving under the influence of drugs (DUI) after officer learned that defendant appeared to have caused an accident, that he was taking medication that made him sleepy, that his eyes were bloodshot and watery and his speech slurred, and that the horizontal gaze nystagmus (HGN) test performed by officer on defendant indicated that defendant was impaired. U.S.C.A. Const.Amend. 4; West's Ga.Code Ann. § 16–13–26(1)(D). Holland v. State, 763 S.E.2d 894 (Ga. Ct. App. 2014).
Police officer had probable cause to arrest defendant for driving under the influence of alcohol where officer observed defendant driving his vehicle immediately before he observed defendant's bloodshot eyes, alcoholic odor, unsteadiness, confusion, and slurred speech, even though he did not see defendant drive in an unsafe manner. U.S.C.A. Const.Amend. 4; West's Ga.Code Ann. § 40–6–391(a)(1). State v. Criswell, 759 S.E.2d 255 (Ga. Ct. App. 2014).
Officers had probable cause to arrest defendant for driving under the influence (DUI), and the same evidence gave officers probable cause upon which to request from defendant a chemical test under the implied consent statute; at the time defendant was arrested, the officers had observed that an odor of alcohol emanated from defendant's vehicle and possibly her breath, defendant had watery, bloodshot eyes, she admitted to having consumed a "mixed drink," and her performance on all three field sobriety evaluations indicated she was impaired. State v. Gauthier, 756 S.E.2d 705 (Ga. Ct. App. 2014).
Illegality of traffic stop due to lack of probable cause for installation and monitoring of global positioning system (GPS) tracking device that was attached to defendant's vehicle was not cured by the fact that the officer who conducted the traffic stop testified that, while he was following and preparing to stop the truck on the basis of be-on-the-lookout (BOLO) alert from officers who were monitoring the GPS signal, he observed that one of the truck's brake lights was not operating and that it was improperly displaying an expired, paper drive-out tag, where officer had been told to follow the truck and admitted that, without such instructions, he would probably would not have had any contact with the truck or its occupants, and he followed the truck for several miles while waiting for backup officers to arrive without explaining why this would have been necessary if he was simply making a routine traffic stop based upon a minor, non-moving violation. U.S.C.A. Const.Amend. 4.Hamlett v. State, 753 S.E.2d 118 (Ga. Ct. App. 2013).
Description of car in police dispatch forming basis for automobile stop was fatally general, where only specific information was make and model of car, while remaining information was so general as to be essentially useless; car's color was described as "silver or dark," there was no information about approximate year of manufacture or condition of car, only facts known about occupants were their race and gender, no street or direction of travel was communicated, vehicle was said to have been associated with armed robberies at least three hours old, and defendant's vehicle was stopped approximately three miles from crime scene. (Per McFadden, J., with two judges concurring in result.) U.S.C.A. Const.Amend. 4. Allen v. State, 751 S.E.2d 915 (Ga. Ct. App. 2013).
Police officers had reasonable suspicion of criminal activity sufficient to justify investigatory stop of vehicle in which one of four codefendants later convicted of kidnapping for ransom was a passenger; police had discerned, through telephone surveillance, than an abducted individual was being held against his will at a particular residence, warrant had been issued to search that residence, police maintained direct observation of the residence and saw persons exiting the residence and leaving in vehicles including the one in which codefendant was riding, and police followed the vehicles at close range prior to effecting the stop. U.S.C.A. Const.Amend. 4. Deleon-Alvarez v. State, 751 S.E.2d 497 (Ga. Ct. App. 2013).
Police officer had reasonable, articulable suspicion of criminal activity sufficient to support traffic stop of tractor-trailer based on his observations that tractor-trailer had torn mud flap that looked like it might come off and potentially injure another motorist, and that decal displaying vehicle's Department of Transportation (DOT) numbers did not appear to comply with federal regulations requiring the marking to be legible during daylight hours from a distance of 50 feet while the vehicle was stationary, despite contention that such reasons were pretextual; officer had a good faith, reasonable belief at the time of the traffic stop that the tractor trailer violated the law. U.S.C.A. Const.Amend. 4; 49 C.F.R. § 390.21(c)(3); West's Ga.Code Ann. § 40–8–7(a). Valentine v. State, 748 S.E.2d 122 (Ga. Ct. App. 2013).
Police officer's initial interaction with defendant was not a first-tier encounter but, rather, immediately began as a second-tier encounter requiring reasonable, articulable suspicion of criminal activity; when officer first observed defendant's vehicle, it was parked, but a few moments later, as defendant pulled out of the parking space and began driving toward the parking lot exit, officer activated his patrol vehicle's blue lights, and, not surprisingly, defendant immediately stopped, and indeed, while testifying during the motion-to-suppress hearing, officer characterized his own actions as initiating "a stop" when defendant's vehicle attempted to drive past him. U.S.C.A. Const.Amend. 4. Dryer v. State, 747 S.E.2d 895 (Ga. Ct. App. 2013).
Police officer's belief that vehicle windows were illegally tinted provided officer with reasonable suspicion of criminal activity to justify traffic stop. U.S.C.A. Const.Amend. 4; West's Ga.Code Ann. § 40–8–73.1.State v. Price, 746 S.E.2d 258 (Ga. Ct. App. 2013).
Traffic stop of defendant's car was based upon a reasonable articulable suspicion of criminal activity; officer observed defendant's car drive by his post and he could not see into defendant's vehicle, even with his headlights turned on, due to the dark tint of defendant's windows, and based on this observation and his experience, the officer suspected that defendant's windows were excessively tinted in violation of the window-tinting statute, and he executed a traffic stop, officer tested vehicle's window tint using a handheld meter and discovered that windows were tinted to a light transmission of 30%, which officer could reasonably believe violated the statutory limit of less than 32%, plus or minus three percent.U.S.C.A. Const.Amend. 4; West'sGa.Code Ann. § 40–8–73.1(b)(2). Beville v. State, 745 S.E.2d 858 (Ga. Ct. App. 2013).
Drunk driving defendant's recorded utterance, "I'm really f–––ed," made while in the back of the patrol car waiting to be transported to jail, was within the res gestae of the arrest, and thus was admissible; it was unlikely that any rational juror's passion would have been unduly inflamed from the mere fact that defendant used a curse word during the course of an arrest. West's Ga.Code Ann. § 24–3–3. Johnson v. State, 744 S.E.2d 921 (Ga. Ct. App. 2013).
Police officer who observed defendant briefly visit a motel located in a high drug area did not have specific articulable facts sufficient to give rise to a reasonable suspicion of criminal activity, as necessary to support stop of defendant's automobile; officer did not observe defendant attempt to avoid police detection or act in an erratic manner, and did not see defendant engage in a drug transaction, talk to anyone who was a known drug dealer, or commit a traffic violation. U.S.C.A. Const.Amend. 4. Adkinson v. State, 743 S.E.2d 563 (Ga. Ct. App. 2013).
Alert from license plate recognition (LPR) system in police officer's vehicle, which showed that a wanted person could be driving vehicle that was actually being driven by defendant, provided officer with reasonable and articulable suspicion to stop the vehicle and request defendant's driver's license; officer personally observed the vehicle's tag to confirm that the LPR system alerted to the correct tag number before initiating the stop. U.S.C.A. Const.Amend. 4. Hill v. State, 743 S.E.2d 489 (Ga. Ct. App. 2013).
Police officers had reasonable suspicion of criminal activity necessary to stop defendant's vehicle; the vehicle had a drive-out tag that had been altered and was invalid, and officers received reliable information from 911 and police radio dispatches, which was shortly corroborated by officers' sighting of the car and its occupants matching the descriptions provided by witnesses of robbery, giving police reasonably trustworthy information sufficient to warrant a prudent person's belief that a suspect had committed an offense. U.S.C.A. Const.Amend. 4. Hinton v. State, 740 S.E.2d 394 (Ga. Ct. App. 2013).
Information from a person officer understood to be an off-duty officer that defendant had been driving erratically and could be intoxicated did not alone give the officer probable cause to arrest defendant for driving under the influence (DUI). U.S.C.A. Const.Amend. 4. Corey v. State, 739 S.E.2d 790 (Ga. Ct. App. 2013).
Probable cause to arrest for driving under the influence (DUI) per se exists where an officer has a reasonable basis to believe that: (1) the suspect has, within the previous three hours, been in physical control of a moving vehicle; and (2) the suspect's current blood alcohol concentration is greater than 0.08 grams. U.S.C.A. Const.Amend. 4. Durrance v. State, 738 S.E.2d 692 (Ga. Ct. App. 2013).
Information obtained using automated license plate scanning system, linking vehicle with an individual who was the subject of a failure-to-appear warrant, provided officer with reasonable suspicion that the individual could be found driving or riding in the vehicle, and, thus, authorized officer to initiate stop of vehicle. U.S.C.A. Const.Amend. 4. Rodriguez v. State, 738 S.E.2d 630 (Ga. Ct. App. 2013).
Defendant's encounter with police officer was a first-tier encounter that involved no coercion or detention and thus required no showing of reasonable suspicion of criminal activity; when officer asked defendant if he had a weapon and if he could retrieve it, defendant was not under arrest or detention, did not refuse to talk to officer, and did not attempt to walk away. U.S.C.A. Const.Amend. 4. Carter v. State, 737 S.E.2d 724 (Ga. Ct. App. 2013).
Officer with county sheriff's department had reasonable suspicion to conduct traffic stop of defendant's vehicle for failure to maintain lane; videotape taken from officer's patrol car showed that vehicle touched the center line of the road, drifted back, then touched the fog line on the right-hand side of the road, and officer testified that he saw vehicle cross the fog line before he turned on the camera. U.S.C.A. Const.Amend. 4; West's Ga.Code Ann. § 40–6–48(1). Acree v. State, 737 S.E.2d 103 (Ga. Ct. App. 2013).
When police officer makes traffic stop based on having clear view of vehicle's front-seat occupants not wearing their seat belts, officer is in same situation as police officer making stop pursuant to Terry v. Ohio, except that initial stop is based on probable cause, not just reasonable and articulable suspicion that individual is, or is about to be, engaged in criminal activity. U.S.C.A. Const.Amend. 4; West'sGa.Code Ann. § 40–8–76.1(b). Horne v. State, 733 S.E.2d 487 (Ga. Ct. App. 2012).
Officer had probable cause to stop defendant for violating statute requiring use of seat safety belt; although officer eventually got close enough to see that defendant was wearing portion of his seat belt, and had tucked shoulder strap under his arm, officer, before stop, had "clear and unobstructed view" of defendant whom he observed to be not wearing shoulder strap safety belt. U.S.C.A. Const.Amend. 4; West's Ga.Code Ann. § 40–8–76.1(b). Davis v. State, 733 S.E.2d 453 (Ga. Ct. App. 2012).
An officer's honest belief that a traffic violation has been committed in his presence, even if ultimately proven incorrect, may nevertheless demonstrate the existence of at least an articulable suspicion and reasonable grounds for the stop; in judging the officer's honest belief, a court should determine 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. U.S.C.A. Const.Amend. 4.Stinson v. State, 733 S.E.2d 390 (Ga. Ct. App. 2012).
The police can stop drivers who engage in erratic driving behavior, even if it is simply weaving within a lane. U.S.C.A. Const.Amend. 4. McRae v. Hogan, 732 S.E.2d 853 (Ga. Ct. App. 2012).
Police officers had reasonable suspicion of criminal activity necessary to stop defendant's vehicle; officers had been briefed on the controlled drug buy and surveillance conducted at the residence and had been provided with a physical description of defendant's car, and when officers observed defendant's vehicle approach them, they attempted to stop the vehicle, but defendant drove by them without stopping.U.S.C.A. Const.Amend. 4.Flemister v. State, 732 S.E.2d 810 (Ga. Ct. App. 2012).
Police officer did not have reasonable suspicion of criminal activity, namely, burglary, to justify vehicle stop, based on officer's belief that vehicle that postal carrier had made report about on previous day at residence was same make and color as one he observed in area where burglaries had reportedly been committed; officer did not see defendant or others in truck violate any laws or commit any illegal acts, there was no evidence that any officer had investigated postal carrier's report of truck at particular residence, and officer's information was limited to defendant's race and gender and that vehicle was same make and model as one he had observed in area where burglaries had been reported. U.S.C.A. Const.Amend. 4. State v. Wolf, 732 S.E.2d 782 (Ga. Ct. App. 2012).
Police officer's seizure of bag of cocaine that defendant had discarded during foot chase did not implicate defendant's right of protection against unreasonable searches and seizures regardless of whether officer had reasonable suspicion of criminal activity necessary to initiate stop. U.S.C.A. Const.Amend. 4. Barber v. State, 732 S.E.2d 125 (Ga. Ct. App. 2012).
A first-tier, consensual police-citizen encounter provides no Fourth Amendment protection, and, during such an encounter, an officer may approach a citizen, ask the citizen questions, and request identification without any basis or belief that the citizen is involved in criminal activity, as long as the officer does not detain the citizen or create the impression that the citizen may not leave. U.S.C.A. Const.Amend. 4.Barber v. State, 732 S.E.2d 125 (Ga. Ct. App. 2012).
Police officer had probable cause to initiate traffic stop of defendant, where defendant's car crossed over lane line without a signal, and third brake light was not working. U.S.C.A. Const.Amend. 4. White v. State, 732 S.E.2d 107 (Ga. Ct. App. 2012).
Police officer had an objective, reasonable suspicion of criminal activity that justified the stop of defendants vehicle, where a be-on-the-lookout for (BOLO) had been issued for his vehicle, the BOLO included a description of the vehicle, the last known road the driver had turned onto, and the last four digits of the vehicle's license plate, and the vehicle was stationary until the officer drove by, at which time the driver pulled out and drove away. U.S.C.A. Const.Amend. 4. Watt v. State, 732 S.E.2d 96 (Ga. Ct. App. 2012).
FOOTNOTES
Amin v. State, 283 Ga. App. 830, 643 S.E.2d 4 (2007).
Jaffray v. State, 306 Ga. App. 469, 702 S.E.2d 742 (2010), cert. denied, (Feb. 28, 2011);State v. Encinas, 302 Ga. App. 334, 691 S.E.2d 257 (2010).
Firsanov v. State, 270 Ga. 873, 513 S.E.2d 184 (1999).
State v. Damato, 302 Ga. App. 181, 690 S.E.2d 478 (2010).
State v. Encinas, 302 Ga. App. 334, 691 S.E.2d 257 (2010).
Handley v. State, 294 Ga. App. 236, 668 S.E.2d 855 (2008).
State v. Encinas, 302 Ga. App. 334, 691 S.E.2d 257 (2010); State v. Damato, 302 Ga. App. 181, 690 S.E.2d 478 (2010).
Wilson v. State, 308 Ga. App. 383, 708 S.E.2d 14 (2011), cert. denied, (June 27, 2011).