State v. Robusto

348 Ga.App. 579

824 S.E.2d 37

The STATE

v.ROBUSTO.

A18A1802

Court of Appeals of Georgia.

February 11, 2019

Paul L. Howard Jr., Atlanta, Francis McDonald Wakeford IV, for Appellant.

Roberta Earline Longmire, for Appellee.

Dillard, Chief Judge.

The State appeals the trial court's grant of Nicholas Robusto's motion to suppress evidence obtained during a traffic stop and subsequent pat-down search, which resulted in him being arrested and charged with possession of heroin and failure to wear a seat belt. Specifically, the State contends that the trial court erred in ruling that the arresting officer's pat-down search was not justified by a reasonable belief that Robusto was dangerous. For the reasons set forth infra , we affirm.

Viewed in the light most favorable to the trial court's ruling,¹ the record shows that some time after 9:00 p.m. on February 2, 2016, an officer with the Atlanta Police Department on routine patrol, pulled his vehicle into the parking lot of a gas station, where he observed a white Nissan Sentra (with both a driver and a passenger) oddly parked in the middle of the lot rather than in a designated space or next to one of the gas pumps. As he slowly drove his patrol vehicle past the Sentra, with the intention of checking the vehicle's license tag, the officer noticed that the passenger was not wearing his seat belt. But before the officer could get a visual on the tag, the vehicle started accelerating, exiting the parking lot and entering a four-lane road. The officer followed and, given that the passenger was not wearing his seat belt, illuminated his vehicle's blue lights to initiate a traffic stop. The driver of the Sentra complied, pulling into the parking lot of a shopping center directly across the street.

After exiting his patrol vehicle and approaching the Sentra, the officer asked both occupants for identification. The driver produced a license, but the passenger informed the officer that he was not currently carrying any identification. Nevertheless, the passenger—who up to that moment had been sitting very still and looking straight ahead—identified himself as Nicholas Robusto and provided the officer with a date of birth, which the officer verified via a search of the Atlanta Criminal Information Center ("ACIC") database. During this inquiry, the officer noticed a small spoon with white residue on it in the vehicle's center console, which the driver attempted to conceal by sliding it toward the emergency brake, as well as a newly opened box of Q-tip cotton swabs, both of which led the officer to suspect that the vehicle's occupants were engaging in illegal intravenous drug use. Consequently, the officer directed the driver to exit the vehicle and then asked him if it contained any illegal drugs. The driver denied being in possession of any drugs, but claimed that Robusto did, in fact, have drugs on his person.

Determining that this was no longer a routine traffic stop but, rather, had now evolved into an investigation for illegal drugs, the officer radioed for another unit to come to the scene. But without waiting for this assistance, the officer directed Robusto to exit the vehicle, and, once he had, asked him if he was in possession of any illegal drugs. Robusto responded negatively, but despite this denial, the officer initiated a pat-down search, which he characterized as being performed for safety purposes and as standard operating procedure for the APD. During this pat-down search, the officer felt what he believed to be syringes in the pockets of Robusto's pants. At this point, the officer shined his flashlight into Robusto's pockets and confirmed that he was in possession of two loaded syringes, which the officer then seized. Immediately thereafter, the officer arrested Robusto and, in a subsequent search, recovered a small bag of heroin, which Robusto had hidden in his shoe.

The State charged Robusto, via accusation, with one count of possession of heroin and one count of failure to wear a seat safety belt. Shortly thereafter, Robusto filed a motion to suppress the evidence seized as a result of the traffic stop and search. The trial court held a hearing on Robusto's motion, during which only the arresting officer testified. At the conclusion of the hearing, the trial court orally denied Robusto's motion, and it issued an order affirming that denial a few weeks later. But the trial court also issued a certificate of immediate review, and, subsequently, Robusto filed an application for interlocutory review with this Court. We initially granted Robusto's application and docketed the appeal, but later dismissed that order as improvidently granted.

Upon remittitur of the case to the trial court, Robusto filed a motion for reconsideration of the trial court's denial of his motion to suppress. The court granted Robusto's motion, now agreeing that the arresting officer's pat-down search was not supported by a reasonable belief that Robusto was armed or dangerous and, thus, the search was unlawful. And one week later, the trial court dismissed the case for want of prosecution, finding that the State was unable to proceed given the court's grant of Robusto's motion to suppress. This appeal by the State follows.²

When the facts material to a motion to suppress are disputed, "it is generally for the trial judge to resolve those disputes and determine the material facts."³ This principle is well established, and our Supreme Court has "identified three corollaries of the principle, which limit the scope of review in appeals from a grant or denial of a motion to suppress in which the trial court has made express findings of disputed facts."⁴ First, we generally must accept a trial court's findings "unless they are clearly erroneous."⁵ Second, we must construe the evidentiary record in "the light most favorable to the factual findings and judgment of the trial court."⁶ And third, we generally must limit our consideration of the disputed facts to "those expressly found by the trial court."⁷ Nevertheless, we review de novo the trial court's "application of law to the undisputed facts."⁸ With these guiding principles in mind, we turn now to the State's claim of error.

The State contends that the trial court erred in granting Robusto's motion to suppress on the ground that the arresting officer's pat-down search was not supported by a reasonable belief that Robusto was armed or dangerous. We disagree.

The Supreme Court of the United States has set forth—most notably in the seminal case of Terry v. Ohio⁹ —three tiers of police-citizen encounters: "(1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause."¹⁰ And, thus, in order to analyze a defendant's claim that he was the victim of an illegal police detention, a court must "first categorize the police-citizen encounter at issue."¹¹

Turning to the issues relevant to this case, OCGA § 40-8-76.1 (b) provides: "Each occupant of the front seat of a passenger vehicle shall, while such passenger vehicle is being operated on a public road, street, or highway of this state, be restrained by a seat safety belt approved under Federal Motor Vehicle Safety Standard 208." And it is well-settled that a law-enforcement officer "may initiate a traffic stop if he has a clear and unobstructed view of a person not restrained as required by OCGA § 40-8-76.1 (b)."¹² Additionally,

[w]hen a police officer makes a traffic stop based on his having a clear view of the occupants of the front seat of a vehicle not wearing their seat belts, he is in the same situation as a police officer making a stop pursuant to Terry , except that the initial stop is based on probable cause, not just a reasonable and articulable suspicion that an individual is, or is about to be, engaged in criminal activity.¹³

Furthermore, although

the probable cause for the initial stop cannot itself be used as probable cause for arrests based on violations of other Code sections, once a stop for a seat belt violation is made, the language of OCGA § 40-8-76.1 does not preclude an officer from conducting a reasonable inquiry and investigation to insure both his safety and that of others.¹⁴

Consequently, here, when the police officer observed that Robusto was not wearing a seatbelt, as the vehicle in which he was an occupant left the gas station parking lot, he was authorized to initiate the traffic stop.¹⁵ And following this traffic stop, the police officer was certainly "authorized to make a reasonable inquiry and investigation[.]"¹⁶

Nevertheless, this does not conclude our inquiry. In order to be constitutionally permissible under the Fourth Amendment, an initial frisk must be "supported by a reasonable belief that [the defendant] was armed and presently dangerous, a belief which [the Supreme Court of the United States] has invariably held must form the predicate to a patdown of a person for weapons."¹⁷ Specifically, under Terry , there is "a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual."¹⁸ Suffice it to say, the officer need not be "absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger."¹⁹ But implicit in this rule of law is "the prerequisite determination that the officer actually concluded that the suspect was armed or a threat to personal safety and the officer can articulate a basis for his conclusion so that a Terry protective pat-down would not be unreasonable in the given set of circumstances."²⁰ Thus, the State has the burden of proving that "the pat-down was lawful, by showing that a...