The State v. Robusto.

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

February 11, 2019

In the Court of Appeals of Georgia
A18A1802. THE STATE v. ROBUSTO.

DILLARD, Chief Judge.

The State appeals the trial court’s grant of Nicholas Robusto’s motion to

suppress evidence obtained during a traffic stop and subsequent pat-down search,

which resulted in him being arrested and charged with possession of heroin and

failure to wear a seat belt. Specifically, the State contends that the trial court erred in

ruling that the arresting officer’s pat-down search was not justified by a reasonable

belief that Robusto was dangerous. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the trial court’s ruling,1 the record shows

that some time after 9:00 p.m. on February 2, 2016, an officer with the Atlanta Police

Department on routine patrol, pulled his vehicle into the parking lot of a gas station,

1
See, e.g., Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011).
where he observed a white Nissan Sentra (with both a driver and a passenger) oddly

parked in the middle of the lot rather than in a designated space or next to one of the

gas pumps. As he slowly drove his patrol vehicle past the Sentra, with the intention

of checking the vehicle’s license tag, the officer noticed that the passenger was not

wearing his seat belt. But before the officer could get a visual on the tag, the vehicle

started accelerating, exiting the parking lot and entering a four-lane road. The officer

followed and, given that the passenger was not wearing his seat belt, illuminated his

vehicle’s blue lights to initiate a traffic stop. The driver of the Sentra complied,

pulling into the parking lot of a shopping center directly across the street.

After exiting his patrol vehicle and approaching the Sentra, the officer asked

both occupants for identification. The driver produced a license, but the passenger

informed the officer that he was not currently carrying any identification.

Nevertheless, the passenger—who up to that moment had been sitting very still and

looking straight ahead—identified himself as Nicholas Robusto and provided the

officer with a date of birth, which the officer verified via a search of the Atlanta

Criminal Information Center (“ACIC”) database. During this inquiry, the officer

noticed a small spoon with white residue on it in the vehicle’s center console, which

the driver attempted to conceal by sliding it toward the emergency brake, as well as

2
a newly opened box of Q-tip cotton swabs, both of which led the officer to suspect

that the vehicle’s occupants were engaging in illegal intravenous drug use.

Consequently, the officer directed the driver to exit the vehicle and then asked him

if it contained any illegal drugs. The driver denied being in possession of any drugs,

but claimed that Robusto did, in fact, have drugs on his person.

Determining that this was no longer a routine traffic stop but, rather, had now

evolved into an investigation for illegal drugs, the officer radioed for another unit to

come to the scene. But without waiting for this assistance, the officer directed

Robusto to exit the vehicle, and, once he had, asked him if he was in possession of

any illegal drugs. Robusto responded negatively, but despite this denial, the officer

initiated a pat-down search, which he characterized as being performed for safety

purposes and as standard operating procedure for the APD. During this pat-down

search, the officer felt what he believed to be syringes in the pockets of Robusto’s

pants. At this point, the officer shined his flashlight into Robusto’s pockets and

confirmed that he was in possession of two loaded syringes, which the officer then

seized. Immediately thereafter, the officer arrested Robusto and, in a subsequent

search, recovered a small bag of heroin, which Robusto had hidden in his shoe.

3
 The State charged Robusto, via accusation, with one count of possession of

heroin and one count of failure to wear a seat safety belt. Shortly thereafter, Robusto

filed a motion to suppress the evidence seized as a result of the traffic stop and

search. The trial court held a hearing on Robusto’s motion, during which only the

arresting officer testified. At the conclusion of the hearing, the trial court orally

denied Robusto’s motion, and it issued an order affirming that denial a few weeks

later. But the trial court also issued a certificate of immediate review, and,

subsequently, Robusto filed an application for interlocutory review with this Court.

We initially granted Robusto’s application and docketed the appeal, but later

dismissed that order as improvidently granted.

Upon remittitur of the case to the trial court, Robusto filed a motion for

reconsideration of the trial court’s denial of his motion to suppress. The court granted

Robusto’s motion, now agreeing that the arresting officer’s pat-down search was not

supported by a reasonable belief that Robusto was armed or dangerous and, thus, the

search was unlawful. And one week later, the trial court dismissed the case for want

4
of prosecution, finding that the State was unable to proceed given the court’s grant

of Robusto’s motion to suppress. This appeal by the State follows.2

When the facts material to a motion to suppress are disputed, “it is generally

for the trial judge to resolve those disputes and determine the material facts.”3 This

principle is well established, and our Supreme Court has “identified three corollaries

of the principle, which limit the scope of review in appeals from a grant or denial of

a motion to suppress in which the trial court has made express findings of disputed

facts.”4 First, we generally must accept a trial court’s findings “unless they are clearly

erroneous.”5 Second, we must construe the evidentiary record in “the light most

2
Under OCGA § 5-7-1 (a) (4), the State may appeal directly “[f]rom an order,
decision, or judgment suppressing or excluding evidence illegally seized or excluding
the results of any test for alcohol or drugs in the case of motions made and ruled upon
prior to the impaneling of a jury or the defendant being put in jeopardy. . . .” See State
v. Fiorenzo, 325 Ga. App. 666, 667 (1) (754 SE2d 634) (2014) (noting that a trial
court’s dismissal of criminal charges for want of prosecution following only a pretrial
hearing did not place the defendant in jeopardy).
3
Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015); see also Tate
v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).
4
Hughes, 296 Ga. at 746 (1).
5
Id.; accord Armentrout v. State, 332 Ga. App. 370, 371-72 (772 SE2d 817)
(2015).

5
favorable to the factual findings and judgment of the trial court.”6 And third, we

generally must limit our consideration of the disputed facts to “those expressly found

by the trial court.”7 Nevertheless, we review de novo the trial court’s “application of

law to the undisputed facts.”8 With these guiding principles in mind, we turn now to

the State’s claim of error.

The State contends that the trial court erred in granting Robusto’s motion to

suppress on the ground that the arresting officer’s pat-down search was not supported

by a reasonable belief that Robusto was armed or dangerous. We disagree.

The Supreme Court of the United States has set forth—most notably in the

seminal case of Terry v. Ohio9—three tiers of police-citizen encounters: “(1)

communication between police and citizens involving no coercion or detention and

therefore without the compass of the Fourth Amendment, (2) brief seizures that must

be supported by reasonable suspicion, and (3) full-scale arrests that must be supported

6
Hughes, 296 Ga. at 746 (1); accord Armentrout, 332 Ga. App. at 372.
7
Hughes, 296 Ga. at 746 (1); accord Armentrout, 332 Ga. App. at 372.
8
Armentrout, 332 Ga. App. at 372 (punctuation omitted).
9
392 U.S. 1 (88 SCt 1868, 20 LE2d 889) (1968).

6
by probable cause.”10 And, thus, in order to analyze a defendant’s claim that he was

the victim of an illegal police detention, a court must “first categorize the

police-citizen encounter at issue.”11

Turning to the issues relevant to this case, OCGA § 40-8-76.1 (b) provides:

“Each occupant of the front seat of a passenger vehicle shall, while such passenger

vehicle is being operated on a public road, street, or highway of this state, be

restrained by a seat safety belt approved under Federal Motor Vehicle Safety Standard

208.” And it is well-settled that a law-enforcement officer “may initiate a traffic stop

if he has a clear and unobstructed view of a person not restrained as required by

OCGA § 40-8-76.1 (b).”12 Additionally,

[w]hen a police officer makes a traffic stop based on his having a clear
view of the occupants of the front seat of a vehicle not wearing their seat
belts, he is in the same situation as a police officer making a stop
pursuant to Terry, except that the initial stop is based on probable cause,

10
Dryer v. State, 323 Ga. App. 734, 736 (1) (747 SE2d 895) (2013)
(punctuation omitted).
11
Id. (punctuation omitted).
12
Davis v. State, 318 Ga. App. 166, 168 (1) (733 SE2d 453) (2012)
(punctuation omitted); see Clark v. State, 305 Ga. App. 699, 700 (1) (700 SE2d 682)
(2010) (holding that officer’s observation that defendant was not wearing a seat belt
supported traffic stop).

7
 not just a reasonable and articulable suspicion that an individual is, or
is about to be, engaged in criminal activity.13

Furthermore, although

the probable cause for the initial stop cannot itself be used as probable
cause for arrests based on violations of other Code sections, once a stop
for a seat belt violation is made, the language of OCGA § 40-8-76.1
does not preclude an officer from conducting a reasonable inquiry and
investigation to insure both his safety and that of others.14

Consequently, here, when the police officer observed that Robusto was not wearing

a seatbelt, as the vehicle in which he was an occupant left the gas station parking lot,

he was authorized to initiate the traffic stop.15 And following this traffic stop, the

13
Horne v. State, 318 Ga. App. 484, 489 (3) (733 SE2d 487) (2012)
(punctuation omitted).
14
Id. (punctuation omitted); see OCGA § 40-8-76.1 (f) (“Noncompliance with
the restraint requirements of this Code section shall not constitute probable cause for
violation of any other Code section.”).
15
See Horne, 318 Ga. App. at 489 (3) (holding that when the officer observed
defendant’s seatbelt traffic violation, he was authorized to initiate a traffic stop);
Clark, 305 Ga. App. at 700 (1) (same).

8
police officer was certainly “authorized to make a reasonable inquiry and

investigation[.]”16

Nevertheless, this does not conclude our inquiry. In order to be constitutionally

permissible under the Fourth Amendment, an initial frisk must be “supported by a

reasonable belief that [the defendant] was armed and presently dangerous, a belief

which [the Supreme Court of the United States] has invariably held must form the

predicate to a patdown of a person for weapons.”17 Specifically, under Terry, there

is “a narrowly drawn authority to permit a reasonable search for weapons for the

protection of the police officer, where he has reason to believe that he is dealing with

an armed and dangerous individual.”18 Suffice it to say, the officer need not be

“absolutely certain that the individual is armed; the issue is whether a reasonably

prudent man in the circumstances would be warranted in the belief that his safety or

16
Horne, 318 Ga. App. at 489 (3); see Blitch v. State, 281 Ga. 125, 126 (2) (636
SE2d 545) (2006) (noting that a traffic stop based on a seatbelt violation does not
preclude an officer from then conducting a reasonable inquiry and investigation).
17
Ybarra v. Illinois, 444 U.S. 85, 92-93 (II) (100 SCt 338, LE2d 238) (1979);
accord Molina v. State, 304 Ga. App. 93, 95 (695 SE2d 656) (2010).
18
Terry, 392 U.S. at 27 (III) (punctuation omitted); accord Molina, 304 Ga.
App. at 96.

9
that of others was in danger.”19 But implicit in this rule of law is “the prerequisite

determination that the officer actually concluded that the suspect was armed or a

threat to personal safety and the officer can articulate a basis for his conclusion so

that a Terry protective pat-down would not be unreasonable in the given set of

circumstances.”20 Thus, the State has the burden of proving that “the pat-down was

lawful, by showing that a reasonably prudent man in the circumstances of the officer

would be warranted in the belief that his safety or that of others was in danger.”21

Additionally, the Supreme Court of the United States reiterated that this Terry

analysis applies to both drivers and passengers in cars legally stopped for a traffic

violation, holding, as an initial matter, that “in a traffic-stop setting, the first Terry

condition—a lawful investigatory stop—is met whenever it is lawful for police to

detain an automobile and its occupants pending inquiry into a vehicular violation.”22

19
Terry, 392 U.S. at 27 (III) (punctuation omitted); accord Molina, 304 Ga.
App. at 96.
20
Edgell v. State, 253 Ga. App. 775, 777 (560 SE2d 532) (2002) (citation
omitted); accord Molina, 304 Ga. App. at 96.
21
Teal v. State, 291 Ga. App. 488, 489 (662 SE2d 268) (2008) (punctuation
omitted); accord Molina, 304 Ga. App. at 95.
22
Arizona v. Johnson, 555 U.S. 323, 327 (129 SCt 781, 172 LE2d 694) (2009);
Molina, 304 Ga. App. at 96; see Berkemer v. McCarty, 468 U.S. 420, 439 (III) n.29

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Significantly, the Court further concluded that “[t]o justify a patdown of the driver

or a passenger during a traffic stop, however, just as in the case of a pedestrian

reasonably suspected of criminal activity, the police must harbor reasonable suspicion

that the person subjected to the frisk is armed and dangerous.”23

In this case, the arresting officer testified that, upon approaching the vehicle

in which Robusto was a passenger, he noticed a spoon with a white residue on it in

the vehicle’s center console and a newly opened box of Q-tips on the backseat, both

of which were indicators of illegal intravenous drug use. The officer then testified

that the driver would not stop moving, which made him nervous, and, therefore, he

ordered the driver to exit the vehicle. But despite his alleged trepidation, instead of

frisking the driver, the officer merely questioned him, and upon being informed by

the driver that Robusto was in possession of illegal drugs, he ordered Robusto to exit

the vehicle. At this point, the officer candidly acknowledged that the traffic stop had

now become a drug investigation.

(104 SCt 3138, 82 LE2d 317) (1984) (“Most traffic stops, this Court has observed,
resemble, in duration and atmosphere, the kind of brief detention authorized in
Terry.” (punctuation omitted)).
23
Johnson, 555 U.S. at 327; accord Molina, 304 Ga. App. at 96.

11
 Nevertheless, even a “particularized and objective basis for suspecting that a

person is engaged in criminal activity is not sufficient to authorize a pat-down of the

suspect for weapons.”24 Rather, as discussed supra, “[a] Terry pat-down is authorized

when the officer reasonably believes that it is necessary to protect the officer from

attack.”25 Here, the officer subsequently testified that after asking Robusto if he was

in possession of any drugs, he performed a pat-down of Robusto for his safety, which

resulted in the discovery of two syringes. But the officer further testified that such

pat-downs were standard operating procedure for the APD and that he performs pat-

downs on everyone he suspects of using intravenous drugs. And notably, although the

officer testified generally that syringes can pose a danger, at no point did he testify

that he believed Robusto might be dangerous. In fact, when Robusto’s counsel

pointedly asked the officer: “There was no reason to believe that Mr. Robusto was

armed; correct?”, the officer explicitly responded, “Correct.” Given these particular

circumstances, the State failed to present evidence that the officer had a reasonable,

articulable, particularized basis for believing Robusto was armed or dangerous prior

to performing his standard pat-down, and thus, it failed to meet its burden of

24
Edgell, 253 Ga. App. at 777-78 (punctuation omitted).
25
Id. at 778 (punctuation).

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establishing that the pat-down was lawful.26 Accordingly, the trial court did not err

in granting Robusto’s motion to suppress the evidence seized as a result of the pat-

down.

For all these reasons, the trial court’s judgment is affirmed.

Judgment affirmed. Doyle, P. J., and Mercier, J., concur.

26
See Molina, 304 Ga. App. at 97-97 (holding that police officer who frisked
defendant, after the traffic stop of a vehicle in which he was a passenger, did not have
a reasonable suspicion that defendant was armed or dangerous, as necessary to
support the frisk, given officer’s testimony that frisk was conducted pursuant to
officer’s practice of routinely frisking passengers whenever a driver consented to a
search of a vehicle); Teal, 291 Ga. App. at 489-90 (holding that evidence did not
show that officer had a reasonable basis for concluding that defendant was armed or
dangerous prior to performing pat-down in light of officer’s testimony that he had no
reason to believe that defendant was armed but that his general practice was to pat-
down any person he asked to exit a car); Edgell, 253 Ga. App. at 777-78 (same).

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