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State v. Bute7/9/2001
Following the trial court's grant of Victor Albert Bute's motion to suppress marijuana found in his automobile, the State appeals, contending that the arresting officer properly stopped Bute's truck to investigate a violation of OCGA § 40-6-242 (a). For the reasons outlined herein, we reverse.
"`When we review a trial court's decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court's findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.'" Allenbrand v. State. However, where, as in this case, the evidence at the suppression hearing was uncontroverted, and no question of credibility of the witnesses was presented, " e . . . review the trial court's ruling on the motion to suppress to ensure that there was a substantial basis for it. The trial court's application of the law to the undisputed facts is subject to de novo review." (Citation omitted.) State v. Armstrong. See also Vansant v. State.
So viewing the evidence, the following facts were adduced at the suppression hearing: At approximately 3:30 a.m. on July 4, 1999, Officer Cass Mooney witnessed Bute driving his truck from behind a closed shopping center with his radio at a "booming" level. Officer Mooney also noticed four people crowded into the front seat sitting shoulder-to- shoulder. At that point, Officer Mooney stopped Bute's vehicle to investigate a violation of the front seat passenger occupancy limitation contained in OCGA § 40-6-242 (a).
As Officer Mooney approached Bute, he smelled the odor of an alcoholic beverage coming from the vehicle and noticed that Bute's face was flushed and his eyes were bloodshot and glazed. Officer Mooney learned that all of the occupants of the vehicle were eighteen years old and that one of the passengers had been drinking. Bute, acting nervously and speaking rapidly, denied that he had been drinking and volunteered to take field sobriety tests, which he failed.
After Bute failed the sobriety tests, Officer Mooney asked Bute if he had any alcohol or drugs with him. Bute stated that he did not have any alcohol or drugs and suggested that Officer Mooney conduct a search. Officer Mooney asked Bute to turn his pockets inside out, and Bute complied, producing a plastic bag from his left shirt pocket which contained marijuana. At this time, Officer Mooney arrested Bute for DUI.
An accusation was filed, charging Bute with (1) driving under the influence of alcohol to the extent it was less safe for him to drive; (2) driving under the influence with an alcohol concentration of .02 percent or more, while under the age of twenty-one; (3) possession of marijuana; (4) interference with control of a vehicle by driving with more than three passengers in the front seat, in violation of OCGA § 40- 6-242 (a); and (5) violation of the sound volume limitation contained in OCGA § 40-6-14, through the use of a stereo.
Bute filed a motion to suppress the evidence, contending that the officer had no articulable suspicion which would authorize the stop and that it was pretextual. At the suppression hearing, Officer Mooney explained that he stopped Bute for a possible violation of OCGA § 40-6- 242 (a), which prohibits a driver from driving with more than three persons in the front seat so as to interfere with the driver's sight or control over the driving mechanism of the vehicle. Bute argued that the mere act of having more than three persons in the front seat does not violate the statute, and therefore, the stop was unlawful. The State contends that Officer Mooney acted upon
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