STATE v. REID (2012)

Court of Appeals of Georgia.

The STATE v. REID.

No. A11A1660.

Decided: January 23, 2012

Layla Hinton Zon, Marie Elizabeth Greene, Erle Jackson Newton III, for Appellant. Donna Louise Clement, for Appellee.

Reggie Reid was charged with possession of marijuana with intent to distribute,¹ based on evidence that was obtained in the course of a traffic stop. Reid moved to suppress this evidence, contending that there was no proper basis for the stop. The court below agreed, and it granted the motion to suppress. The State appeals, and finding no error in the decision of the court below, we affirm.

When an appeal is taken from the grant of a motion to suppress, we owe no deference to the way in which the court below resolved questions of law, Barrett v. State, 289 Ga. 197, 200(1), 709 S.E.2d 816 (2011), but we must accept its factual findings “unless clearly erroneous,” and we must view the evidence in the light most favorable to the decision of the court below. Miller v. State, 288 Ga. 286, 286–287(1), 702 S.E.2d 888 (2010). So viewed, the record in this case shows that a Walton County deputy sheriff saw Reid driving a car that had no side view mirrors, and the deputy began to follow it. After a while, the deputy said, he saw a passenger throw “a small, white object” from the car, and the deputy stopped the car. The deputy determined that a warrant was outstanding for the arrest of the passenger, and he arrested the passenger and asked Reid for consent to search the car. Reid gave consent, and the deputy found a bag of marijuana in the trunk. The deputy then arrested Reid for possession of the marijuana, and after the deputy read the Miranda warnings, Reid admitted that the marijuana was his. The stop was recorded on video, and the video was shown to the court below at the hearing on the motion to suppress, but no copy of the video appears in the record on appeal.²

Reid moved to suppress the marijuana and other evidence obtained as a result of the stop, asserting that the deputy had no proper basis for the stop. In response, the State argued that the deputy had two distinct grounds for stopping Reid, namely that Reid was driving a car without side view mirrors and that someone in the car had littered by throwing something from the car. The court below rejected the justifications that the State offered for the stop. The court reasoned that no law absolutely requires that a car be equipped with side view mirrors,³ and even if an officer properly may stop a person based merely on his good faith belief that the person has violated the law, see McConnell v. State, 188 Ga.App. 653, 654(1), 374 S.E.2d 111 (1988) (physical precedent only), the court found that the deputy did not really believe at the time of the stop that the absence of side view mirrors supplied proper grounds for a stop.⁴ The court also found, after viewing the video of the traffic stop, that the deputy did not, in fact, see anyone toss anything from the car,⁵ and there was, therefore, no reason to stop the car for littering.

On appeal, the State just ignores the factual findings of the court below, and it argues that the deputy was entitled to stop the car because he really believed that the absence of side view mirrors is unlawful and because he really saw someone littering. We cannot, however, just ignore those factual findings, and on the record before us, we cannot find that they are clearly erroneous. Those findings are based not only upon the video that is absent from the record on appeal, but also upon an assessment of the credibility of the deputy, and we especially must defer to the court below about questions of credibility, inasmuch as it had the opportunity to see and hear from the witnesses in person. See Santos v. State, 306 Ga.App. 772, 775(1), 703 S.E.2d 140 (2010). Accepting the facts as found by the court below, we see no error in the way in which that court applied the law to those facts. Consequently, we affirm the judgment below.

Judgment affirmed.

BLACKWELL, Judge.

BARNES, P.J., and ADAMS, J., concur.