FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, 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
May 14, 2018
In the Court of Appeals of Georgia
A18A0613. THE STATE v. DYKES.
DILLARD, Chief Judge.
The State appeals the trial court’s grant of Terrence Dykes’s motion to suppress
evidence obtained during a traffic stop, which resulted in him being arrested and
charged with being a habitual violator, driving under the influence of alcohol less
safe, failure to maintain lane, and giving false information to a law-enforcement
officer. Specifically, the State argues the trial court’s factual findings were erroneous
and that it erred in dismissing the case sua sponte without first inquiring whether the
State could produce any evidence other than that suppressed by the court. For the
reasons set forth infra, we affirm.
Viewed in light most favorable to the trial court’s ruling,1 the record reflects
that on August 21, 2016, at approximately 12:50 a.m., a patrol officer with the City
of Johns Creek Police Department observed a vehicle, which was traveling south in
the left lane of a road, cross the white dotted line on its right and then return to the
left lane. Based on this traffic violation (i.e., failure to maintain lane), the officer
initiated a traffic stop of the vehicle and identified Dykes as the driver, even though
he initially provided a false date of birth to the officer. Upon encountering Dykes, the
officer detected the odor of alcohol and noticed that his eyes were bloodshot and
watery. The officer then decided to conduct a DUI investigation to determine whether
Dykes was impaired. Dykes admitted to drinking alcohol before driving and showed
multiple signs of impairment during the field-sobriety tests. The officer also
determined that Dykes’s driving privileges had been revoked because he was a
habitual violator.
Based on the foregoing observations, the officer arrested Dykes for various
offenses, including failure to maintain lane and DUI less safe. Subsequently, Dykes
was charged, via accusation, with being a habitual violator, DUI less safe, failure to
maintain lane, and giving false information to a law-enforcement officer. Dykes then
1
See, e.g., State v. Mohammed, 304 Ga. App. 230, 230 (695 SE2d 721) (2010).
2
filed a motion to suppress the evidence obtained during the traffic stop, including his
identity and the results of the sobriety tests, arguing that the stop was unlawful. The
trial court held a hearing on the motion, and at its conclusion, the court orally granted
the motion and stated its intention to issue a written order to that effect at a later date.
Thereafter, on April 25, 2017, the trial court issued an order sua sponte dismissing
the case because the motion to suppress had been granted. Several days later, on May
1, 2017, the trial court issued its final written order, granting Dykes’s motion to
suppress. This appeal by the State follows.
1. The State first argues that the trial court erred in granting Dykes’s motion
to suppress because its finding that he did not commit the traffic violation of failure
to maintain lane was clearly erroneous. We disagree.
In reviewing the denial of a motion to suppress, we generally must “(1) accept
a trial court’s findings unless they are clearly erroneous, (2) construe the evidentiary
record in the light most favorable to the factual findings and judgment of the trial
court, and (3) limit its consideration of the disputed facts to those expressly found by
the trial court.”2 That said, we review de novo the trial court’s application of law to
2
Armentrout v. State, 332 Ga. App. 370, 371-72 (772 SE2d 817) (2015)
(footnotes omitted).
3
the undisputed facts.”3 With these guiding principles in mind, we will now consider
the State’s argument.
During the hearing on the motion to suppress, the arresting officer repeatedly
testified that the sole reason he initiated the traffic stop was because he observed
Dykes’s vehicle cross over the center white line into the right lane of the road and
then back into the left lane in violation of OCGA § 40-6-48 (i.e., failure to maintain
lane).4 This alleged traffic violation was recorded by a camera on the patrol car’s
dashboard (the “dash-cam video”), and it was played for the trial court during the
hearing.5 Dykes argued that the video did not show him crossing the center line, and
the trial court agreed, noting that it could not see the car crossing over the line in the
video.
3
Id. at 372 (punctuation omitted).
4
See OCGA § 40-6-48 (1) (Whenever any roadway has been divided into two
or more clearly marked lanes for traffic . . . [a] vehicle shall be driven as nearly as
practicable entirely within a single lane and shall not be moved from such lane until
the driver has first ascertained that such movement can be made with safety . . . .”).
5
It is unclear how much of the almost hour-long video the trial court viewed,
but the State indicated that they planned to show only the traffic violation, which the
officer indicated was “somewhere around the 50-minute mark[.]” And at the
conclusion of the hearing, the court requested to view the portion of the dash-cam
video a second time.
4
On appeal, the State contends that the trial court’s finding in this regard was
erroneous because the dash-cam video, along with the officer’s testimony,
conclusively establishes that Dykes’s tires touched the white dashed line and then
returned to his lane of travel. As to the officer’s testimony, the State contends that his
credibility was “never called into question” and that he was an experienced and well-
trained traffic officer. But this argument ignores that a trial court on a motion to
suppress is “not required to accept the testimony of any witness, even if that
testimony is uncontradicted.”6 And here, based on its own independent review of the
dash-cam video, the trial court apparently did not believe the officer’s testimony that
Dykes violated OCGA § 40-6-48.
Furthermore, we disagree with the State that the dash-cam video conclusively
establishes that the trial court’s finding that Dykes’s car did not cross over the center
lane of the road was clearly erroneous. Indeed, the video is dark and of poor quality
and it is simply impossible for this Court to discern whether Dykes committed the
traffic violation at issue. In fact, during the suppression hearing, the arresting officer
6
State v. Sanders, 274 Ga. App. 393, 397 (617 SE2d 633) (2005) (emphasis
supplied); see Miller v. State, 288 Ga. 286, 289 (2) (702 SE2d 888) (2010) (“[T]he
trier of fact is not obligated to believe a witness even if the testimony is
uncontradicted and may accept or reject any portion of the testimony.” (punctuation
omitted)).
5
even apologized to the court for “the lack of quality on the video.” When, as here, the
dash-cam video is inconclusive, “we must review this evidence in the light most
favorable to the trial court’s findings and judgment.”7 Thus, we defer to the trial
court’s finding that Dykes did not commit the traffic violation that was the sole basis
for the traffic stop.8 And for a traffic stop to be valid, “an officer must identify
7
Phillips v. State, 338 Ga. App. 231, 233 (789 SE2d 421) (2016); see
Dougherty v. State, 341 Ga. App. 120, 123 n.1 (799 SE2d 257) (2017) (“We conduct
a de novo review of factual findings when the controlling facts are clearly and
completely discernible from a video recording. But [when] . . . some of the
controlling facts are not fully captured in the recording, we defer to the trial court’s
findings regarding those facts.” (citation omitted)); Phillips, 338 Ga. App. at 233
(“[O]ur own review of the video shows that it is dark and confirms that the video does
not conclusively prove or disprove either the officer’s or [the defendant’s]
testimony”). Cf. Crider v. State, 336 Ga. App. 83, 84 (783 SE2d 682) (2016) (“[A]
reviewing court may also consider facts indisputably discernable from a videotape
. . . .” (emphasis supplied)).
8
In a separate, but related, claim of error, the State argues that the defendant
need not commit a traffic violation to provide reasonable suspicion necessary to
justify a traffic stop and that, in this case, there is “uncontroverted evidence of
[Dykes’s] vehicle weaving within its lane.” But the State never argued to the trial
court that the officer stopped Dykes because he was weaving within his lane, and this
Court does not address arguments made for the first time on appeal. See Fides v.
State, 237 Ga. App. 607, 607 (1) (516 SE2d 101) (1999) (“This Court is a court for
the correction of legal errors and has no jurisdiction to address issues that are raised
for the first time on appeal.” (punctuation omitted)). To the contrary, the officer
repeatedly testified that Dykes’s failure to maintain lane was the only reason he
initiated the traffic stop, and at the conclusion of the hearing, the State expressly
argued, “We don’t have somebody weaving within the lane[,] but going outside of it.”
Thus, we will not address the State’s second claim of error.
6
specific and articulable facts that provide a reasonable suspicion that the individual
being stopped is engaged in criminal activity.”9 Thus, because the trial court’s
conclusion that Dykes did not commit a traffic violation was not clearly erroneous,
the officer lacked reasonable suspicion to stop Dykes, and the court properly granted
his motion to suppress.10
2. Next, without citing any legal authority to support its contention, the State makes
a cursory argument that the trial court erroneously dismissed the case sua sponte without
calling the case to trial or inquiring whether the State had any additional evidence. But the
State fails to identify any admissible evidence that it would have presented if given the
opportunity to do so. Moreover, our independent review of the record likewise fails to show
9
Jones v. State, 291 Ga. 35, 38 (2) (727 SE2d 456) (2012); accord Toole v.
State, 340 Ga. App. 633, 634 (798 SE2d 288) (2017).
10
See Jones, 291 Ga. at 38 (2) (holding that an officer lacked reasonable
suspicion to initiate a traffic stop when there was no evidence that the defendant
violated a traffic law or drove in an unsafe manner); State v. Mincher, 313 Ga. App.
875, 877-78 (723 SE2d 300) (2012) (affirming the trial court’s grant of a motion to
suppress evidence obtained as a result of a traffic stop because the conduct that was
alleged as the basis for the stop was not illegal and there was no objective basis to
suspect that the defendant was or was about to be engaged in any criminal activity);
Thomas v. State, 300 Ga. App. 120, 123-24 (684 SE2d 290) (2009) (holding that the
officer lacked reasonable articulable suspicion to stop and detain the defendant when
he had not committed any traffic violations and did nothing more than drive slowly
through a neighborhood, intermittently stopping to look into the woods).
7
any evidence that the State could have presented to prove the charges against Dykes. Indeed,
all of the evidence relevant to Dykes’s charged offenses was obtained solely as the result
of the traffic stop. Given our holding in Division 1 supra, that the traffic stop was illegal and
the trial court properly granted Dykes’s suppression motion, the State could not have
produced any admissible evidence sufficient to prove the charged offenses.11
For all these reasons, we affirm the trial court’s grant of Dykes’s motion to suppress
evidence.
Judgment affirmed. Doyle, P. J., and Mercier, J., concur.
11
See Lawson v. State, 299 Ga. App. 865, 868 (1) (684 SE2d 1) (2009) (“The
‘fruit of the poisonous tree’ doctrine provides that any evidence acquired by the
police through exploitation of information obtained by means of unlawful conduct is
inadmissible in a criminal prosecution.”).
8