Sellers v. the State

THIRD DIVISION
BARNES, P. J.,
BOGGS 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/

March 26, 2015

In the Court of Appeals of Georgia
A14A2197. SELLERS v. THE STATE.

BARNES, Presiding Judge.

Charles Dewey Sellers allegedly fled from the scene of a traffic stop, leading

the police on a high speed car chase in which he struck another vehicle, discarded

cocaine from his car window, and attempted to bribe a police officer following his

apprehension. After pleading guilty in state court to the traffic offense of following

too closely, Sellers was indicted in superior court on charges of trafficking in cocaine,

possession of cocaine with intent to distribute, abandonment of drugs in a public

place, bribery, and fleeing or attempting to elude a police officer. Sellers filed a

motion in autrefois convict and plea of former jeopardy (the “procedural double

jeopardy motion”), contending that all counts of the indictment returned in superior

court should be dismissed as a result of his guilty plea in state court. Sellers also filed

a motion to suppress the cocaine, contending, among other things, that the traffic stop
had been unreasonably prolonged and that the cocaine allegedly discarded from his

vehicle was the tainted fruit of his unlawful detention.

The superior court denied Sellers’s procedural double jeopardy motion, with

the exception of the charge for fleeing or attempting to elude a police officer, which

the court found was barred as a result of Sellers’s prior guilty plea in state court. The

superior court also denied Sellers’s motion to suppress. Sellers now appeals these

rulings.1 We affirm the superior court’s partial denial of the procedural double

jeopardy motion because Sellers failed to establish that the solicitor who handled his

guilty plea in state court actually knew of the other crimes arising out of the same

conduct as the traffic offense to which he pled guilty. We affirm the superior court’s

denial of the motion to suppress because the discarded cocaine was not tainted by any

alleged illegality in Sellers’s detention.

Construed in favor of the trial court’s rulings, the record shows that after

receiving information from a confidential informant that Sellers possessed a large

amount of cocaine, an investigator with the City of Brunswick Police Department and

1
A “timely filed plea of double jeopardy is directly appealable.” Malloy v.
State, 293 Ga. 350, 352 (1) (744 SE2d 778) (2013). Given Sellers’s right to directly
appeal the denial of his procedural double jeopardy motion, he was entitled to seek
appellate review of the denial of his motion to suppress pursuant to OCGA § 5-6-34
(d). See id.

2
other members of his narcotics enforcement team conducted surveillance of Sellers

over the course of several days on Jekyll Island. On June 6, 2013, the investigator

received additional information that Sellers might be involved in a large drug

transaction and might be leaving town that day. After observing Sellers driving away

from Jekyll Island around noon, the investigator radioed the make, model, and tag

number of Sellers’s vehicle to a trooper with the Georgia State Patrol who was

involved in the surveillance operation.

The state trooper identified and began to follow Sellers’s vehicle as it left

Jekyll Island and proceeded down a highway in Glynn County. Believing that the tint

on the windows of Sellers’s vehicle was darker than was legally permissible, the

trooper initiated a traffic stop. The trooper approached the stopped vehicle, asked to

see Sellers’s driver’s license, and tested the tint on the car windows using a tint meter.

Although the meter showed that the window tint was within the legal limit, the

trooper told Sellers that he would issue him a written warning for purposes of

“documentation.” The trooper also asked Sellers if he could search his vehicle, and

Sellers consented. The trooper then returned to his patrol car and radioed for

assistance from another officer in conducting the search.

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 Before the other officer arrived at the scene or the search had been conducted,

Sellers, who had not yet received his driver’s license back or the written warning,

drove off at a high rate of speed into heavy traffic. A police chase ensued in which

Sellers “followed really close to two or three . . . [other] cars” on the highway as he

attempted to evade the police. Sellers sideswiped another car but continued fleeing

from the responding officers. Ultimately, Sellers pulled off the road and surrendered

to the police.

After Sellers was taken into custody, officers searched his vehicle but did not

discover any illegal drugs inside of it. However, officers also searched the side of the

road along the route where the chase occurred and found a package containing

approximately 2.5 pounds of powder cocaine. The package was damaged, consistent

with having been thrown from a vehicle.

Sellers was transported to the Glynn County Police Department and advised of

his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694)

(1966). Sellers agreed to speak with the police and allegedly offered to compensate

one of the officers if the charges against him were dropped.

Sellers was charged in the State Court of Glynn County with the misdemeanor

traffic offense of following too closely. On September 17, 2013, Sellers appeared in

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state court with his public defender and a state solicitor and pled guilty to that

offense. He was sentenced to three days with credit for time served.

On October 31, 2013, Sellers was indicted in the Superior Court of Glynn

County on charges of trafficking in cocaine, possession of cocaine with intent to

distribute, abandonment of drugs in a public place, bribery, and fleeing or attempting

to elude a police officer. Sellers filed a procedural double jeopardy motion pursuant

to OCGA §§ 16-1-7 (b) and 16-1-8 (b) (1), contending that all counts of the

indictment should be dismissed as a result of his guilty plea in state court to the

misdemeanor traffic offense. Sellers also filed a motion to suppress the cocaine

discarded on the side of the road, contending, among other things, that the state

trooper unreasonably prolonged the duration of the traffic stop after learning that the

car window tint was within legal limits, and that the cocaine was inadmissible as fruit

of the unlawful detention.

The superior court conducted evidentiary hearings on both of Sellers’s motions.

Following the hearings, the superior court denied Sellers’s procedural double

jeopardy motion, with the exception of the count of fleeing or attempting to elude a

police officer, which the court found was barred. The superior court also denied

5
Sellers’s motion to suppress. This appeal followed in which Sellers challenges those

rulings.2

1. Sellers contends that the superior court erred by denying his procedural

double jeopardy motion as to the felony charges of trafficking in cocaine, possession

of cocaine with intent to distribute, abandonment of drugs in a public place, and

bribery. He contends that pursuant to OCGA §§ 16-1-7 (b) and 16-1-8 (b) (1), his plea

of guilty to the misdemeanor traffic offense of following too closely in state court

barred any subsequent prosecution for the four felony offenses in superior court. We

disagree.

The procedural aspect of double jeopardy under Georgia law is set forth in

OCGA § 16-1-7 (b), which “requires the State to prosecute crimes in a single

prosecution if the crimes (1) arise from the same conduct, (2) are known to the proper

prosecuting officer at the time of commencing the prosecution, and (3) are within the

jurisdiction of a single court.” Weaver v. State, 224 Ga. App. 243 (480 SE2d 286)

(1997). “A second prosecution is barred under OCGA § 16-1-8 (b) (1) if it is for

crimes which should have been brought in the first prosecution under OCGA § 16-1-7

2
The State does not appeal or otherwise challenge the superior court’s grant
of Sellers’s procedural double jeopardy motion on the charge of fleeing or attempting
to elude a police officer. Consequently, the propriety of that ruling is not before us.

6
(b).” Nicely v. State, 305 Ga. App. 387, 388 (1) (699 SE2d 774) (2010). All three

prongs of OCGA § 16-7-1 (b) must be satisfied for procedural double jeopardy to bar

a second prosecution. Id.

Our focus here is on the second prong of OCGA § 16-7-1 (b), the knowledge

of the proper prosecuting officer. In determining what is known to the proper

prosecuting officer, our Supreme Court has rejected a constructive knowledge

standard and instead has adopted an actual knowledge test. See Baker v. State, 257

Ga. 567, 568-569 (361 SE2d 808) (1987). Under the actual knowledge test, the

defendant bears the burden of affirmatively showing that the proper prosecuting

officer actually knew that there were other crimes arising out of the same conduct as

the crime that the officer was prosecuting. See id. See Powe v. State, 257 Ga. 563,

563-565 (361 SE2d 811) (1987); Turner v. State, 238 Ga. App. 438, 438-440 (518

SE2d 923) (1999); Honea v. State, 238 Ga. App. 135, 135-137 (517 SE2d 841)

(1999); Hill v. State, 234 Ga. App. 173, 175-177 (1) (507 SE2d 3) (1998).

In this case, the proper prosecuting officer was the solicitor who handled

Sellers’s guilty plea in state court.

The prosecuting officer in the state court is the person whose knowledge
matters . . . , because [Sellers’s] plea in state court is the proceeding that

7
 he claims bars his superior court prosecution. Where a criminal
defendant first pleads guilty to a misdemeanor in state court and is later
prosecuted in superior court for felony charges allegedly arising out of
the same conduct, we look to the knowledge of the state court solicitor
to determine if the state court proceedings bar the subsequent superior
court proceedings.

Barlowe v. State, 286 Ga. App. 133, 134 (648 SE2d 471) (2007). See Dean v. State,

309 Ga. App. 459, 461 (711 SE2d 42) (2011); Etienne v. State, 298 Ga. App. 149,

150-151 (679 SE2d 375) (2009). Moreover, “[w]hile it may be reasonable to impute

the knowledge of one prosecuting officer to others working in the same office, it is

not reasonable to do so where two entirely separate prosecuting offices are

involved[.]” Powe v. State, 181 Ga. App. 429, 431 (352 SE2d 783) (1986), aff’d,

Powe, 257 Ga. 563. Hence, the knowledge of the assistant district attorney handling

the prosecution of Sellers in superior court for the felony offenses cannot be imputed

to the solicitor who handled Sellers’s guilty plea to the traffic offense in state court.

See id.

Based on this precedent, Sellers had the burden of affirmatively showing that

the state court solicitor actually knew of the felony offenses arising out of the same

8
conduct as the traffic offense of driving too closely to which he pled guilty. We

conclude that Sellers failed to carry his burden under the circumstances of this case.

Sellers did not call the state court solicitor as a witness at the hearing on his

procedural double jeopardy motion. Instead, Sellers argued that the solicitor must

have actually known of the felony offenses based on a document entitled “Inmate

Charge/Disposition Form” that had been completed by a booking officer at the Glynn

County Detention Center (the “disposition form”). There was testimony at the hearing

that the customary procedure was for a disposition form to accompany an inmate

whenever he or she was taken from the detention center to a courtroom in state court,

where the form would be reviewed by the solicitor assigned to the case and the trial

judge. The disposition form included a chart for listing offenses with which an inmate

had been charged and a separate chart for listing the disposition of those offenses.

The disposition form in this case listed Sellers’s offenses as “trafficking in

cocaine, illegal drugs, marijuana or methamphetamine” and bribery. It did not list the

dates upon which those offenses allegedly had occurred or provide any factual

description of the circumstances surrounding those offenses. The separate chart on

the form for listing the disposition of the offenses was left blank. The disposition

form also included a notation that Sellers had been confined at the detention center

9
since June 6, 2013 and that the form had been completed by the booking officer on

September 16, 2013, the day before the plea hearing in state court.

The disposition form was legally insufficient to show that the solicitor handling

Sellers’s guilty plea in state court actually knew that there were felony offenses

arising out of the same conduct as the misdemeanor traffic offense. We reached the

same conclusion in Turner, 238 Ga. App. at 439, where we held that a “booking

history” form, which listed the defendant’s pending felony offenses and the date he

had been put in jail, was insufficient to show that the solicitor actually knew that

those offenses arose out of the same conduct as the misdemeanor traffic offenses to

which the defendant pled guilty in state court. We concluded that the actual

knowledge test had not been satisfied, although the “booking history” form showed

that the defendant “was booked into jail on [the] felony charges on the same date he

was booked into jail on the traffic offenses.” Id. at 440. We reasoned that the date a

defendant is booked in jail “does not necessarily indicate the date an offense was

committed,” and that the “prosecutor did not know from the booking history when the

listed felony offenses occurred, let alone if they arose out of the same transaction as

the traffic offenses.” Id. Based on the reasoning of Turner, we conclude that the

disposition form in this case – which simply listed felony offenses (including a

10
vaguely worded drug charge that did not make clear the specific drug at issue) and

the date Sellers was initially detained – failed to demonstrate that the state court

solicitor actually knew of the felony offenses arising out of the same conduct as the

traffic offense.

Sellers also points out that, at the hearing on his procedural double jeopardy

motion, he called as a witness an attorney who happened to be present in the

courtroom when Sellers pled guilty to the traffic offense. When asked if he had

overheard at the plea hearing “any conversation amongst the Court and Mr. Sellers

regarding any other situations that he may be facing,” the attorney testified, “Yeah,

there was some discussion at the bench that Mr. Sellers had bigger problems upstairs

was the topic.” Because the attorney did not elaborate any further regarding what was

discussed at the plea hearing or even mention the state court solicitor, his testimony

plainly was insufficient to show that the solicitor actually knew of the other felony

offenses arising out of the same conduct as the traffic offense to which Sellers pled

guilty. See Powe, 257 Ga. at 564-565 (defendant’s statement in state court that he had

another case pending against him in superior court, without further elaboration, was

insufficient to show that the state court solicitor actually knew that the superior court

charges arose out of the same conduct as the traffic offense to which the defendant

11
pled guilty); Banks v. State, 320 Ga. App. 98, 100 (739 SE2d 414) (2013) (actual

knowledge test was not satisfied, where plea hearing transcript reflected “only that

the prosecuting attorney had knowledge that [the defendant] could face other charges,

not that he had knowledge that the events giving rise to these other charges took place

on the same day or at the same location as the [charge to which the defendant pled

guilty]”).

For the foregoing reasons, we conclude that Sellers failed to provide any

evidence that the solicitor who handled his guilty plea to the traffic offense of

following too closely had actual knowledge that Sellers committed felony offenses

arising out of the same conduct as the traffic offense. The State therefore may proceed

with its prosecution of Sellers in superior court on the felony charges of trafficking

in cocaine, possession of cocaine with intent to distribute, abandonment of drugs in

a public place, and bribery, and the trial court properly denied Sellers’s procedural

double jeopardy motion with respect to those charges.3

2. Sellers further contends that the trial court erred in denying his motion to

suppress the cocaine discarded on the side of the road where the police chase

3
Because Sellers failed to demonstrate that the solicitor had the requisite actual
knowledge, we do not reach the question whether the other two prongs of OCGA §
16-1-7 (b) were satisfied.

12
occurred. According to Sellers, the state trooper unreasonably prolonged the duration

of the traffic stop after learning that the window tint on Sellers’s vehicle was within

legal limits, and the discarded cocaine was the tainted fruit of that unlawful detention.

“It is well settled law that before stopping a car, an officer must have specific,

articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct,”

and an officer’s observation of a traffic violation “provides the necessary facts for

such reasonable suspicion.” (Punctuation and footnote omitted.) Beville v. State, 322

Ga. App. 673, 676 (3) (a) (i) (745 SE2d 858) (2013). Thus, when an officer observes

darkly tinted car windows that he reasonably believes fall outside the legally

permissible limit, the officer has reasonable, articulable suspicion to initiate a traffic

stop. See id.; Christy v. State, 315 Ga. App. 647, 651 (1) (727 SE2d 269) (2012).

However, once the officer’s investigation of the perceived traffic violation is

complete, the officer may prolong the detention of the driver only if the officer has

“a reasonable, articulable suspicion that the driver was engaged in other illegal

activity.” (Citation and punctuation omitted.) Bodiford v. State, 328 Ga. App. 258,

267 (2) (761 SE2d 818) (2014).

We conclude that even if the state trooper unreasonably prolonged the traffic

stop by continuing to detain Sellers after learning that there was no window tint

13
violation, the cocaine that allegedly was discarded after that detention was not “fruit

of the poisonous tree” that had to be suppressed by the superior court.

When examining whether evidence is inadmissible as fruit of an illegal
detention, we ask whether the evidence was obtained by exploitation of
the prior illegality or instead by means sufficiently distinguishable to be
purged of the primary taint. And, significantly, a defendant’s
commission of a new crime in the presence of law enforcement is an
intervening act of free will that purges the taint of any prior illegality.

(Citations and punctuation omitted.) Walker v. State, 314 Ga. App. 67, 71 (1) (722

SE2d 887) (2012).

Here, the record, construed in favor of the prosecution, shows that Sellers fled

from the traffic stop, engaging the police in a high speed and dangerous car chase in

heavy traffic during which he discarded the cocaine from his vehicle.

Regardless of the propriety of an officer’s basis for the execution of a .
. . traffic investigative stop, attempting to flee from such stop is a
separate crime altogether, i.e., fleeing or attempting to elude a police
officer. Such offense does not require that the investigative stop to be
proper. The determination of whether there is a legal basis for [an
investigative] stop does not belong to the detainee, thereby giving him
the right to flee if he determines he is being stopped illegally.

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(Citations, punctuation and footnote omitted.) Reynolds v. State, 280 Ga. App. 712,

715-716 (1) (634 SE2d 842) (2006). “To hold otherwise could encourage persons to

resist the police and create potentially violent and dangerous confrontations.”

(Citation and punctuation omitted.) Faulkner v. State, 277 Ga. App. 702, 705 (1) (627

SE2d 423) (2006). It follows that Sellers’s flight from the traffic stop, even if the

duration of the stop was unreasonable, was a new crime, and thus constituted an

intervening act that purged the taint flowing from any illegality. See id. See also

Walker, 314 Ga. App. at 71 (1); State v. Nesbitt, 305 Ga. App. 28, 34-35 (2) )(a) (699

SE2d 368) (2010) Faulkner, 277 Ga. App. at 705 (1); State v. Stilley, 261 Ga. App.

868, 871 (584 SE2d 9) (2003). Accordingly, the cocaine discarded on the side of the

road during Sellers’s flight was admissible, and the superior court did not err by

denying the motion to suppress. See id.

Judgment affirmed. Boggs and Branch, JJ., concur.

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