Canino v. State

314 Ga.App. 633

725 S.E.2d 782

12 FCDR 906

CANINO

v.The STATE.

No. A11A2202.

Court of Appeals of Georgia.

March 7, 2012.

James R. Hodes, Bruce S. Harvey, for appellant.

Daniel J. Porter, Dist. Atty., Charles P. Efstration III, Asst. Dist. Atty., for appellee.

DOYLE, Presiding Judge.

Raul Canino was charged with reckless driving ¹ and possession of cocaine with the intent to distribute.² This appeal arises from this Court's grant of Canino's application for interlocutory review of the denial of his motion to suppress evidence obtained from his car following his arrest for reckless driving. Canino argues that the trial court erred because (1) the police did not have probable cause to arrest him for reckless driving; (2) the search of his vehicle incident to his arrest was improper; and (3) the search of his car pursuant to an inventory search was improper. We reverse, for reasons that follow.

When reviewing a trial court's order on a motion to suppress,

the appellate court should be guided by three principles with regard to the interpretation of the trial court's judgment of the facts. First, when a motion to suppress is heard by the trial judge, that 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 [them]. 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.³

So construed, the evidence shows that on August 19, 2008, at approximately 5:00 or 6:00 p.m., Officer Terry Werho of the Gwinnett County Police Department, along with three other officers, was in a shopping center walking toward a restaurant where they planned to have dinner. As he walked through the parking lot, Werho observed Canino's black BMW enter the parking lot, “accelerating at a high rate of speed, making turns through the aisles recklessly,” and causing the tires to squeal on the pavement and the body of the vehicle to “sway to the passenger side” as it turned. Another officer, Kevin Sipple, testified that Canino's car “fish-tail[ed]” and came within ten feet of Sipple. Canino parked in a marked parking spot near the four patrol cars and exited his vehicle.

All four officers approached Canino, and Werho “[a]sked him why he was driving so recklessly” and for his identification. Canino replied that he was meeting someone inside the restaurant, and he produced two traffic citations, one for a traffic offense and one for driving under the influence, explaining that his driver's license had been confiscated by DeKalb County police and that his name and birth date were on the citations. At some point during this initial contact, Werho directed Canino to sit in his vehicle, and Canino complied. Werho checked Canino's information through the Georgia Crime Information Center (GCIC), which indicated that Canino did in fact have a driver's license. ⁴ Another officer was in a patrol car with Werho during the GCIC inquiry, and the other two officers remained standing “a few feet” behind Canino's car where he was sitting pursuant to the officer's instruction.

Werho then returned to Canino, asked him to exit his car, and told him that he was under arrest for reckless driving. Canino complied, and Werho placed him in handcuffs while Canino was pressed face-first against the driver's side of his car, slightly behind the open driver's door and against the seat pillar. Another officer—Corporal Marion—began searching Canino's car. At the initial suppression hearing, Werho testified that the search and the handcuffing were “almost simultaneous” and stated that “I can't tell you if [the search began] before handcuffs were completely on him, but it was after I informed him he was under arrest and before I finished the search of his person.” According to Werho, Marion searched the car from the passenger's side. Marion testified that Canino was already in handcuffs before he began searching the vehicle from the driver's side of the car. After Canino was secured in handcuffs, Marion found a plastic bag, which contained a white powdery substance, in the gap between the driver's seat and the center console; a narcotics field test of the substance indicated that it was positive for drugs.⁵

Canino's vehicle was impounded following his arrest for reckless driving and possession of cocaine with intent to distribute. At some point during the incident, two women approached, and one of them told police that she knew Canino. Canino's car was legally parked and did not constitute a hazard, and the property owner/manager did not request removal of the vehicle. The officers did not give Canino the opportunity to have a friend or family member remove his vehicle from the parking lot in lieu of impoundment, nor did they ask him if he wanted to make alternative arrangements for the car, despite the presence of the woman on the scene and the friends he was meeting in the restaurant.

Police officers involved in Canino's arrest testified at a probable cause hearing on October 1, 2008; a bond hearing on November 7, 2008; and a second bond hearing on January 7, 2009. The court then held a hearing on Canino's motion to suppress on July 1, 2009, at which time Officer Werho testified that the search of Canino's car was conducted incident to his arrest, and he specifically denied that the search was an inventory search. The following year, before the trial court ruled on the motion to suppress, the State filed a motion to reopen the evidence, explaining that it had evaluated the search in this case in consideration of the recent United States Supreme Court decision of Arizona v. Gant,⁶ which was decided on April 21, 2009, and which held that police are authorized “to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search” ⁷ or “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” ⁸

In March 2010, the Supreme Court of Georgia held that even if a search of a vehicle subsequent to an arrest was invalid under Gant, evidence could be admissible under the inevitable discovery rule if the State proves that the evidence seized from the vehicle would have been properly discovered during the subsequent inventory of the vehicle.⁹ Thus, the State sought to introduce evidence at a second motion to suppress hearing to establish that the impound of Canino's vehicle was proper and would have resulted in the discovery of the cocaine.

The trial court granted the motion for a second hearing, at which Werho testified that the police conducted (1) a search of Canino's car incident to arrest and (2) a subsequent impound inventory search based on Canino's arrest and the drugs found in his vehicle. Marion testified at the same hearing that his search of Canino's car was an impound inventory search.

After the hearing, the trial court denied Canino's motion to suppress, concluding in a detailed order that Canino's arrest for reckless driving was authorized; the subsequent search of his vehicle was an authorized search incident to arrest under Gant; and the impoundment of his car was lawful and would have led to the inevitable discovery of the cocaine. This interlocutory appeal followed.

1. Canino argues that the police did not have probable cause to arrest him for reckless driving, and therefore, the trial court erred by failing to suppress the evidence seized subsequent to his arrest. This enumeration is without merit.

OCGA § 40–6–390(a) defines reckless driving as driving “in reckless disregard for the safety of persons or property.” Canino argues that although he may have been speeding, there is no evidence that his actions threatened the safety of persons or property. The officers, however, testified that Canino accelerated through the busy shopping center parking lot at a high rate of speed; made reckless turns, causing his tires to squeal and his vehicle to fish-tail; did not have control of the car; and came within ten to fifteen feet of striking the officers while he drove. Another officer, Kevin Sipple, testified that Canino “came pretty close to striking Sergeant Hart and [me],” and there were people walking through the parking lot. Under these circumstances, the trial court was authorized to conclude that the officers had a basis for stopping and arresting Canino for reckless driving.¹⁰

In support of this enumeration, Canino relies on the testimony of Don Shaver, an engineer and reconstruction expert, who testified at the initial suppression hearing that he attempted to replicate Canino's actions in the parking lot, and his testing and observation of the parking lot led him to conclude that Canino was in control of his vehicle and that he could not have operated his vehicle in the manner described by the officers. The trial court, however, resolves all evidentiary conflicts, and its “decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous.” ¹¹

2. Next, Canino argues that the trial court erred by denying his suppression motion because the search of his vehicle incident to his arrest was improper. We agree.

In New York v. Belton,¹² the United States Supreme Court held that when a police officer “has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile [and] ... the contents of any containers found within the passenger compartment.” ¹³ That holding was based, in part, upon the Court's assumption “that articles inside the relatively narrow compass of the...