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State v. Whelchel7/23/2004
The State appeals from the trial court's grant of Clifton Lamont Whelchel's motion to suppress evidence of the chemical sobriety test results and all non-Mirandized statements made by Whelchel in response to the arresting officer's questions. The trial court suppressed the evidence, concluding that there was no articulable suspicion for the initial stop of Whelchel's vehicle. We agree and affirm.
The arresting officer was the only person who testified at the motion hearing. The officer testified that at approximately 4:20 a.m. Whelchel was traveling north on Interstate 85 near the merge with Interstate 985 when he passed the police officer and slowed down. The posted speed limit was 70 mph, and Whelchel slowed to about 60 mph. Whelchel's vehicle was traveling in the left lane, and the police officer was traveling in the center lane five or six car lengths behind Whelchel's vehicle. Two or three vehicles were in Whelchel's lane, traveling a distance behind the police officer. The vehicles slowed down when they got behind the police officer's vehicle. The police officer stated that he did not know if the other vehicles slowed down because they saw a police officer or because Whelchel was impeding the flow of traffic. The officer initiated a traffic stop because Whelchel did not move into the right lane to yield to the traffic behind him.
The officer noticed a strong smell of burnt marijuana in the car and a faint odor of alcohol on Whelchel's breath, and further observed that Whelchel was mumbling or speaking softly, swaying when he stood still, and had bloodshot eyes and dilated pupils. Whelchel admitted to the officer that he had consumed one or two drinks. Whelchel agreed to perform several field sobriety tests, and as a result of these tests the officer determined Whelchel was a less safe driver and arrested him for impeding the flow of traffic and driving under the influence of alcohol and drugs.
On August 25, 2003, the defendant filed a motion in limine to exclude the evidence of chemical sobriety test results and any non-Mirandized statements made by Whelchel in response to the arresting officer's questions. At the October 2, 2003 hearing, the trial court granted the motion, finding a lack of articulable suspicion for the initial stop of Whelchel's vehicle. The State appeals.
The State argues the trial court erred in granting Whelchel's motion in limine because the officer had sufficient articulable suspicion to make the initial stop. We disagree.
As the evidence regarding the stop was undisputed, the trial court's application of law to these facts is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994). We review the trial court's decision on the motion to ensure there was a substantial basis for it. State v. McFarland, 201 Ga.App. 495, 411 S.E.2d 314 (1991).
An officer may conduct a brief investigative stop, but that stop must be justified by "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." (Footnote omitted.) Terry v. Ohio, 392 U.S. 1, 21(III), 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The United States Supreme Court concluded that the totality of the circumstances must be taken into account to determine whether the officer had "a particularized and objective basis for suspecting the particular person stopped of criminal activity." (Citations omitted.) United States v. Cortez, 449 U.S. 411, 417-418(II)(A), 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). "The question to be decided is whether the officer's motives and actions at the time and under all the circumstances, including the nature of the officer's mistake, if any, were reasonable and not arbitrary or harassing." (Citation and punctuation omi
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