Register v. State

315 Ga.App. 776

728 S.E.2d 292

12 FCDR 1635

REGISTER

v.The STATE.

No. A12A0750.

Court of Appeals of Georgia.

May 3, 2012.

Catherine Scott Bernard, for Appellant.

Louie Craig Fraser, Dublin, Bradford Neal Childers, for Appellee.

BOGGS, Judge.

Following the trial court's denial of Brandy Register's motion to suppress, we granted her application for interlocutory review. Register argues that there was no reasonable suspicion to authorize a stop of the vehicle in which she was a passenger and that the evidence in her possession seized during the stop was tainted and must therefore be suppressed. We agree and reverse.

“[O]n review of a trial court's ruling on a motion to suppress, the trial court's findings on disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed facts is subject to de novo review.” (Citations and punctuation omitted.) Wilder v. State, 290 Ga. 13, 15(2), 717 S.E.2d 457 (2011).

The evidence is undisputed here. The police chief for the City of Dublin, Georgia, received a phone call from an anonymous caller who stated that they had observed what they believed was a drug transaction “at the Friendly Gus located on 441 North.” The caller stated that he observed a white male exchange “some type of pill” for money. The caller advised that the white male was traveling in a white Chevrolet van and provided the tag number of the vehicle, and also stated that a white female was a passenger in the van. The caller told the police chief that he would observe the van until the police chief could arrive at the location.

Prior to the police chief's arrival, the caller informed him that the “van had pulled out traveling south on 441.” As the police chief approached, he observed the van and verified that the tag number on the van was the same tag number given to him by the caller. He then notified the 911 call center that he was following the van and asked for verification of the tag number. He also asked for a “marked unit” to assist him.

The van made several turns leading the police chief to believe that the driver “appeared to be evading [him],” although he acknowledged that the driver did not commit any traffic violations. He stopped the van, and approached the driver whom he knew as Travis Register. The chief testified that he was familiar with Travis because of his “extensive history of narcotic transactions and dealing with narcotics.” He also recognized the passenger as Brandy Register and was familiar with her for this same reason.

The police chief asked Travis if he could search the van and Travis consented. The second officer who arrived to assist the police chief asked Brandy to step out of the van and come toward his vehicle. This officer testified that he was also familiar with both Travis and Brandy. He stated that after having some conversation with Brandy at this vehicle; she cooperated and

we had been told about what had happened at the store about the citizen, what he had said. I basically talked to Brandy and told her the—you know, what the allegations were. She was very cooperative with me. She retrieved a gold case out of her bra on the left side ... which contained Xanax and Oxycodone.

The trial court concluded that the details reported by the concerned citizen “including the detailed description of the vehicle, the tag number, the description of the occupants, the likely continuing criminal activity that drugs are in the possession of the occupants of the vehicle, and the continuing observations of the concerned citizen and communication with police,” gave police “articulable suspicion to stop the vehicle [and] ... articulable suspicion to investigate possession of narcotics.”

On appeal, Brandy argues that the trial court erred in finding that the police chief had a reasonable articulable suspicion to authorize a stop of the vehicle in which she was a passenger. The stop of the vehicle was a second-tier encounter requiring officers to have reasonable suspicion of criminal activity. See generally Hines v. State, 308 Ga.App. 299, 301(1), 707 S.E.2d 534 (2011). And “[a]lthough a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity, if the tip is detailed enough to provide some basis for predicting the future behavior of the suspect, reliability may be established if the details are corroborated by the observations of the police.” (Citations, punctuation and footnote omitted.) State v. Dukes, 279 Ga.App. 247, 250, 630 S.E.2d 847 (2006).¹

[T]he information corroborated must include a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. In short, the information corroborated will generally need to be a prediction of future behavior, ... or something similar—that is, inside information not available to the general public.

(Citations and punctuation omitted.) VonLinsowe v. State, 213 Ga.App. 619, 621(1), 445 S.E.2d 371 (1994). Moreover, we have held that even where police do not confirm future actions, an anonymous caller's tip may otherwise exhibit sufficient indicia of reliability to justify a stop. Britton v. State, 220 Ga.App. 120, 121–122, 469 S.E.2d 272 (1996).

The tip here lacked moderate indicia of reliability as it provided no prediction of future behavior or other inside information that...