concurring specially.
Although I fully concur in all that is written and in the judgment, I write separately to address the language in the second paragraph of the opinion. That language precisely reflects the law in Georgia today, but seems to me unfortunate and I respectfully urge our Supreme Court to reconsider numerous precedents, albeit venerable.
The majority correctly states that “[i]n reviewing a trial court’s denial of a motion to suppress, this Court defers to the trial court’s findings of disputed facts but reviews de novo the court’s application of the law to the undisputed facts.” Petty v. State, 283 Ga. 268, 269 (658 SE2d 599) (2008); State v. Nash, 279 Ga. 646, 648 (619 SE2d 684) (2005). But, the facts are never “undisputed” unless stipulated. Even if only one witness testifies and testifies unambiguously, credibility is nonetheless in issue. At a hearing on a motion to suppress, the trial judge sits as the trier of fact. And Georgia law has long held that the trier of fact may believe or disbelieve all or any part of the testimony of any witness.
*140Saying that appellate courts in Georgia should “review de novo the court’s application of law to the undisputed facts” allows appellate courts, relying on a cold record, to reverse a trial judge who has seen the demeanor of the witnesses as they testified. Such reversals are especially tempting when, based on the cold record, we disagree with the trial court or, when the motion is granted, we suspect “home cooking.” But the trial judge’s ability to grant a motion to suppress, even when the testimony appears from the record to have been indisputably in favor of the state, is one more protection for a citizen’s rights. We should not imperil those rights by maintaining the legal fiction that the facts are ever ‘ ‘undisputed. ’ ’ If the parties stipulate to the facts, then, of course, the credibility of a testifying witness is not an issue, and de novo review would be appropriate.
The leading case adopting the de novo standard of review is Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). It could be argued that the discussion of de novo review in Vansant was obiter dicta. The result of the Supreme Court’s decision was merely to affirm the trial court’s decision on the facts, facts which are, as argued above, always disputed. Vansant relied on a footnote in State v. Davis, 261 Ga. 225, 226, n. 1 (404 SE2d 100) (1991), a special concurrence in State v. McBride, 261 Ga. 60, 65 (401 SE2d 484) (1991) (Hunt, J., concurring specially), and on two opinions of the United States Court of Appeals for the Eleventh Circuit. See Van-sant, supra. There was no discussion of the ancient Georgia doctrine that the credibility of a witness or witnesses is always an issue for the trier of fact.
The opinion, on whose footnote Vansant relied, State v. Davis, supra, is itself troublesome. The Davis case stated that “[ujnless clearly erroneous, the trial court’s ruling on disputed facts . . . must be accepted on appeal.” (Citation, punctuation and footnote omitted; emphasis supplied.) Id. at 226. Again as with the “de novo” review rule, the “clearly erroneous” standard of review allows an appellate court, based on a cold record, to second guess the trier of fact.
The Davis case asserted the “clearly erroneous” standard of review based on Dean v. State, 250 Ga. 77, 80 (2) (a) (295 SE2d 306) (1982), which cites Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975). Woodruff in turn cites Lego v. Twomey, 404 U. S. 477 (92 SC 619, 30 LE2d 618) (1972), United States v. Watson, 469 F2d 362 (5th Cir. 1972) (reciting “clearly erroneous” standard without citation), and Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974). Johnson had also relied on Lego v. Twomey and United States v. Watson. Thus is the origin of the “clearly erroneous” rule in Georgia. However, Lego v. Twomey, upon which our Supreme Court relied, holds only that the standard for determining the admissibility of *141confessions may be merely the preponderance of the evidence; the words “clearly erroneous” do not appear in the opinion. Our Supreme Court’s reliance on Lego for the “clearly erroneous” standard is mystifying given that Lego makes no mention of this rule.
Decided November 26, 2008 Reconsideration denied December 11, 2008 Steven A. Cook, for appellant. Patrick H. Head, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.The rule in Georgia should be that an appellate court in Georgia can reverse a trial court’s grant or denial of a motion to suppress only when: (1) the record lacks any evidence to support the finding below; or (2) the record manifestly shows that the trial court ruled on the facts while under a mistaken view of the law.
My argument that the standard of appellate review should be “any evidence” is supported by the principle, well established in civil cases in Georgia, that a trial judge’s findings of fact can never be “clearly erroneous” when there is “any evidence” to support them. E.g., Blair v. Bishop, 290 Ga. App. 721, 722 (660 SE2d 35) (2008). But in criminal cases the rule may be significantly different. See, e.g., State v. David, 269 Ga. 533, 535 (1) (501 SE2d 494) (1998) (“an appellate court must adopt the trial court’s findings of fact unless they are clearly erroneous and not supported by any evidence”) (citations omitted; emphasis supplied).
I hope that our Supreme Court will reconsider the law in this area and assert that de novo review is appropriate only when the facts are stipulated and not presented by testimony, and that the standard of review in civil and criminal cases for findings based on testimonial evidence is “any evidence.”