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Gary v. State7/6/2004
Kirby Gary appeals his convictions for trafficking in methamphetamine and possession of methamphetamine with the intent to distribute. He contends the trial court erred by denying his motion to suppress the evidence seized from his tow truck by deputy sheriffs.
On appeal, Gary contends the trial court erred by denying the motion to suppress because the deputies lacked a reasonable articulable suspicion to stop him, as he had committed no traffic offense in their presence and they had no other reason to suspect him of criminal activity. He also contends the deputy had no articulable suspicion to detain him after the traffic stop and his refusal to consent to the search, and that the roadblock was unconstitutional because its primary purpose was ordinary crime prevention. Finding no error, we affirm.
1. When we review a trial court's decision on a motion to suppress, this court's responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court's findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.
(Citations omitted.) Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). When the evidence is uncontroverted and no question of witness credibility is presented, "the trial court's application of the law to undisputed facts is subject to de novo appellate review. [Cits.]" Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). To the extent this issue concerns a mixed questions of fact and law, we will accept the trial court's findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts. Morrow v. State, 272 Ga. 691, 693 (1) (532 SE2d 78) (2000).
So viewed, the evidence shows that deputy sheriffs from the Sheriff's Criminal Apprehension Team ("SCAT") were operating a "DUI, license, and insurance check" on a county road. The deputies were in uniform and had patrol cars on the side of the road with their blue lights on. The checkpoint had been approved by Sergeant Thomas, SCAT's supervisor, and they were stopping every car that came through.
Sergeant Thomas testified that he selected the site for the checkpoint because the road was a "cut-through" between two major highways that was used by a lot of people. According to Sergeant Thomas they had received numerous reports of burglaries, theft, and drugs in the area as well as information about drug activity from Gary's garage.
The underlying facts are stated in Gary v. State, 249 Ga. App. 879 (549 SE2d 826) (2001), our opinion reviewing the civil asset forfeiture case arising from this incident:
[The deputies] observed a white wrecker suddenly veer off into a private driveway located just short of the roadblock. According to Sergeant D. G. Thomas, as he heard a vehicle approaching and looked over to his left, "all of a sudden, it slammed on its brakes and made an abrupt stop. You could hear -- I mean, it was obvious he was making a hard stop and turned into a driveway." Deputy Sheriff Thomas Trudnak also saw the truck turn "sharply" and "very abruptly" into a driveway. From where he was standing, Trudnak was able to see that the driver did not use a turn signal and that the rear of the car being towed did not have any tow lights affixed. Based on his opinion that the wrecker was trying to avoid the traffic checkpoint, Trudnak decided to investigate further. After requesting to see G
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