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State v. Hester7/15/2004
Scott Hayward Hester was charged with two counts of driving under the influence of alcohol ("DUI") and with making an illegal U-turn. The trial court granted Hester's motion to suppress all evidence gathered following the stop of his vehicle. It is from this ruling that the state appeals. We affirm.
*502 When an appellate court reviews a trial court's order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court's judgment of the facts. First, ... [the] judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment. [FN1]
FN1. (Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646 (1994). Accord Walker v. State, 262 Ga.App. 872, 873, 586 S.E.2d 757 (2003).
Because the trial court's decision involved the credibility of the witnesses, the de novo appellate review specified in Vansant v. State [FN2] does not apply.
FN2. 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994).
With these principles in mind, the evidence shows that on January 13, 2002, the DUI task force of the Gwinnett County Police Department set up a sobriety check point near the intersection of Thompson Parkway and Singleton Road in Norcross. According to Sergeant Roy Smith, the roadblock was marked with orange cones with reflective striping and Department of Transportation signs that said "Caution Police Check Point Ahead," as well as marked police vehicles with their blue lights flashing. All officers working the checkpoint wore uniforms and reflective traffic vests and carried flash lights. Smith testified that the purpose of the road check was the detection and apprehension of impaired drivers. According to Smith, he observed a vehicle make a U-turn before arriving at the checkpoint. He further testified that because it appeared that the U-turn was made in a curve and on the crest of a hill, he ordered Officer Joel Whitt to pursue and stop the vehicle. On cross-examination, Smith admitted that in addition to the hill and curve where he alleged Hester made the U-turn, the street where the roadblock was set up had a flat portion where motorists could make legal turns into two business driveways. Smith could not describe the color, make, or model of the vehicle he observed other than it was a "passenger car" with its headlights on.
Whitt testified that he did not observe the U-turn, but that he was notified by other police officers on the scene that a vehicle had *503 turned around to avoid the checkpoint. He could not recall if it was Smith who notified him. Whitt admitted that the only information **273 he had when he began the pursuit was that a car had turned around. According to Whitt, after the other officers indicated the direction in which the vehicle was traveling, Whitt got in his car and drove approximately 100 yards. Hester's was the only vehicle he observed traveling in that direction. Whitt estimated that less than 30 seconds passed between the time he was notified of the U-turn and when he was able to locate the vehicle. Whitt stopped the vehicle and, after further investigation, arrested Hester for DUI and making an improper U-turn.
Hester testified that, believing the roadblock was an accident scene, he made a legal U-turn on the flat portion of the road while there was
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