THIRD DIVISION
MILLER, P. J.,
MCFADDEN, P. J., and MCMILLIAN, 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
March 10, 2017
In the Court of Appeals of Georgia
A16A1491. TOOLE v. THE STATE.
MCMILLIAN, Judge.
Kenneth Toole appeals the trial court’s denial of his motion to suppress on the
ground that police lacked reasonable, articulable suspicion to justify a traffic stop of
his vehicle. We disagree and affirm.
In Hughes v. State, 296 Ga. 744 (770 SE2d 636) (2015), our Supreme Court
explained what standard of review appellate courts should apply when reviewing the
denial of a motion to suppress. As an overarching principle, “[w]hen the facts
material to a motion to suppress are disputed, it generally is for the trial judge to
resolve those disputes and determine the material facts.” Id. at 746 (1). From this
principle, the Court identified three corollaries:
First, an appellate court generally must accept those findings unless they
are clearly erroneous. Second, an appellate court must construe the
evidentiary record in the light most favorable to the factual findings and
judgment of the trial court. And third, an appellate court generally must
limit its consideration of the disputed facts to those expressly found by
the trial court.
(Citations omitted.) Id.
So viewed, the record reveals that on March 26, 2015, Officer Timothy Charles
Scott of the Douglas County Sheriff’s Office, was on duty and monitoring traffic on
Interstate 20 (“I-20”). As Officer Scott was traveling in the middle lane of the three-
lane eastbound side of the interstate, he saw Toole’s car in his rear view mirror in the
left passing lane traveling at what appeared to be around 65 mph, five miles below
the posted maximum speed limit of 70 mph. He could also see traffic stacking up
behind the car and other cars passing it in the middle lane. As the officer slowed his
patrol car, Toole stayed in the left lane and passed him. Although the middle and right
lanes were open, Toole made no attempt to move to the right although he could have
safely done so. The officer gauged Toole’s speed to be 68 mph at the time he passed
2
the patrol car.1 Officer Scott testified that he believed that the vehicle was in violation
of two Georgia statutes, OCGA §§ 40-6-40 and 40-6-184, because the car was
traveling below the maximum speed, but not staying to the right. As a result, the car
was holding up traffic, forcing other drivers to pass on the right. Based on these
observations, the officer initiated a traffic stop.
Officer Scott subsequently issued Toole traffic citations for violating OCGA
§ 40-6-40 (b) for failing to drive on the right side of the roadway and OCGA § 40-5-
121 for driving with a suspended license. A subsequent accusation charged Toole
with those two violations, as well as possession of less than an ounce of marijuana
under OCGA § 16-13-30 (j) and possession of drug-related objects under OCGA §
16-13-32.2. Toole filed a motion to suppress, seeking to exclude any evidence
obtained as a result of the traffic stop on the ground that Officer Scott lacked a
sufficient basis to stop his vehicle. The trial court denied the motion to suppress,
1
Although the State introduced a copy of the traffic stop video at the motion
hearing as State’s Exhibit 1, the first copy transmitted in the record was blank. This
Court asked for and received from the trial court clerk another copy of the exhibit.
The second copy appeared to have data transferred onto the disk, but it would not
play. Therefore, we were unable to consider the video evidence on appeal. We take
this opportunity to remind counsel that appellant, and not this Court, bears the burden
of ensuring that the record is complete on appeal. Janasik v. State, 323 Ga. App. 545,
553 n.3 (746 SE2d 208) (2013).
3
finding that the officer believed in good faith that a traffic violation occurred even
though the trial court found that as a matter of law there was no actual violation. This
appeal followed.
“For a traffic stop to be valid, an officer must identify specific and articulable
facts that provide a reasonable suspicion that the individual being stopped is engaged
in criminal activity.” Jones v. State, 291 Ga. 35, 38 (2) (727 SE2d 456) (2012). “This
suspicion need not meet the standard of probable cause, but must be more than mere
caprice or a hunch or an inclination. A founded suspicion is all that is necessary,
some basis from which the court can determine that the detention was not arbitrary
or harassing.” (Citation omitted.) State v. Melanson, 291 Ga. App. 853, 854 (663
SE2d 280) (2008). However, a police officer is not required “[to] know with certainty
that each element of a particular crime could be established.” (Citation omitted.) State
v. Zeth, 320 Ga. App. 140, 141 (739 SE2d 443) (2013). Rather,
[i]f the officer acting in good faith believes that an unlawful act has been
committed, his actions are not rendered improper by a later legal
determination that the defendant’s actions were not a crime according
to a technical legal definition or distinction determined to exist in the
penal statute.
(Citation omitted.) Id. at 141-42.
4
OCGA § 40-6-40 (b) provides that:
[u]pon all roadways, any vehicle proceeding at less than the normal
speed of traffic at the time and place and under the conditions then
existing shall be driven in the right-hand lane then available for traffic,
or as close as practicable to the right-hand curb or edge of the roadway,
except when overtaking and passing another vehicle proceeding in the
same direction or when preparing for a left turn at an intersection or into
a private road or driveway.
Here, the officer testified that Toole’s car was traveling below the posted speed limit2
in the left passing lane, even when it was not “overtaking and passing another
vehicle” and not “preparing for a left turn at an intersection or into a private road or
driveway.” From these facts, the officer formed the belief that Toole had violated
OCGA § 40-6-40 (b). We find that under the facts and circumstances of this case as
testified to by the officer and applying the proper standard of review, the officer
identified specific and articulable facts supporting a reasonable suspicion that Toole
had violated OCGA § 40-6-40 (b).
2
Although Toole makes much of the fact that the officer testified that Toole
was traveling only two miles below the speed limit, the statute does not speak in
terms of posted speed limits, but rather addresses vehicles traveling “at less than the
normal speed of traffic at the time and place and under the conditions then existing”
and requires such vehicles to keep to the right.
5
Although the trial court found that no violation of OCGA § 40-6-40 had
occurred based on a technical reading of the statute, it upheld the traffic stop based
on Officer Scott’s good faith belief that such a violation had occurred. The trial court
found “no evidence that [Officer Scott’s] beliefs were anything but bona fide,” and
“it was for the trial court, sitting as finder of fact, to gauge the credibility of the
officer’s testimony that he observed [Toole] commit a traffic violation.” (Citation and
punctuation omitted.) Shell v. State, 315 Ga. App. 628, 630 (1) (727 SE2d 243)
(2012).
Toole does not contest these findings, urging instead for us to apply the
reasoning in State v. Parke, 304 Ga. App. 124, 127 (695 SE2d 413) (2010) and State
v. Whelchel, 269 Ga. App. 314, 316 (604 SE2d 200) (2004). Each of those cases is
factually similar in that each involves a driver traveling slightly below the speed limit,
with traffic behind them. Parke, 304 Ga. App. at 125 (driver traveling 48 mph in left
lane of a 55- to 65-mph speed zone); Whelchel, 269 Ga. App. at 314 (driver traveling
60 mph in left lane of a 70-mph speed zone). But both Parke and Whelchel are
materially distinguishable because both appeals were from the granting of the
defendants’ motion to suppress and dealt with violations of OCGA § 40-6-184, not
6
OCGA § 40-6-40.3 On this denial of a motion to suppress, we must construe the facts
to uphold the trial court’s judgment. See Hughes, 296 Ga. at 746. Accordingly,
applying the appropriate standard of review, we cannot say under these circumstances
that the trial court erred in denying Toole’s motion to suppress.
Judgment affirmed. Miller, P. J., and McFadden, P. J., concur.
3
Toole was not charged with a violation of OCGA § 40-6-184 in this case, but
the State argued at the motion to suppress hearing that a violation of this statute was
grounds for the traffic stop. However, we need not address the application of that
statute here as we have found that Officer Scott’s good faith belief that Toole had
violated OCGA § 40-6-40 was sufficient to support the traffic stop.
7