Hestley v. State

Blackburn, Judge,

dissenting.

I must respectfully dissent to Division 1 of the majority’s opinion.

I do not believe that the majority has appropriately applied controlling appellate precedent to the undisputed facts of the case. The warrantless stop of the white Chevrolet van driven by Hestley was not authorized under the controlling precedent. At the time of the stop, Hestley was lawfully proceeding down Rising Star Road in the white van and was not committing any traffic violations. There was nothing to identify Hestley’s vehicle as the one seen in the area of the prior thefts or as the vehicle seen by members of the road crew suspiciously driving up and down Rising Star Church and Old Bethel Roads. More importantly, there was no evidence linking Hestley’s vehicle to any criminal activity prior to the unjustified, illegal intrusion.

The undisputed, facts of this case are controlled by the Supreme Court’s recent decision in Vansant v. State, 264 Ga. 319 ( 443 SE2d 474 ) (1994). In Vansant , the Supreme Court held that the detaining officer lacked the requisite particularized basis for stopping the driver of a white van involved therein. The officer had received, via a police radio broadcast, information supplied by an eyewitness that the obviously intoxicated driver of a white van had been involved in a hit- and-run accident, and the driver had been identified by name, although the driver’s identity was not a factor in the stop. The detaining officer in Vansant did not observe any traffic violations or damage to the vehicle prior to the stop.

As in Vansant , the detaining officer in the case at bar did not observe any traffic violations prior to the stop and did not have the requisite particularized basis for suspecting that the driver of this *579 particular white van was involved in criminal activity. Id. “Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The U. S. Supreme Court recognized the difficulty in defining the elusive concept of what cause is sufficient to authorize police to stop a person, and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity. This demand for specificity in the information upon which police action is predicated is the central teaching of the Supreme Court’s Fourth Amendment jurisprudence.” (Citations and punctuation omitted.) Id. at 320 (2).

It is clear from the record that the only reason that Deputy Provence stopped Hestley was because he was driving a white van and there had been a police lookout sounded for a white van. Any white van would have been stopped. As there was no particularized and objective basis for stopping Hestley, he was illegally detained.

This court’s recent decision in State v. Fowler, 215 Ga. App. 524 ( 451 SE2d 124 ) (1994), authored by this writer but relied upon by the majority, supports the suppression of the evidence seized following the warrantless stop. In Fowler , we affirmed the trial court’s grant of the defendant’s motion to suppress based upon the detaining officer’s lack of a reasonable, articulable suspicion that the defendant had been involved in illegal activity prior to the warrantless stop. As in the present case, in Fowler , there was no factual basis that the defendant had been involved in illegal activity and the officer’s conclusion that the defendant had been involved in illegal activity was not based on anything specific that the officer observed prior to the stop. In addition, our decision in Smith v. State, 182 Ga. App. 58 ( 354 SE2d 681 ) (1987), also relied upon by majority, is physical precedent only and not binding authority.

As to the consent to search, there was no significant lapse of time between the unlawful detention and Hestley’s consent to search the van, and no intervening circumstances to dissipate the effect of the unlawful detention. Therefore, we must also hold that the consent was the product of the illegal detention and that the taint of the illegal detention was not sufficiently attenuated.

“[I]n order to eliminate any taint from an involuntary seizure or arrest, there must be proof both that the consent was voluntary and that it was not the product of the illegal detention. Proof of a voluntary consent alone is not sufficient. The relevant factors include the temporal proximity of an illegal seizure and consent, intervening circumstances, and the purpose and flagrancy of the official misconduct.

*580 Decided March 9, 1995.

Ballard & Ballard, H. Geoffrey Slade, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

“In [Hestley’s case], we find that there was no significant lapse of time between the unlawful detention and the consent, that no intervening circumstances dissipated the effect of the unlawful detention and that the deputy’s conduct had no arguable legal basis. Therefore, we hold that the consent was the product of the illegal detention, and that the taint of the unreasonable stop was not sufficiently attenuated.” (Citations and punctuation omitted.) Brown v. State, 188 Ga. App. 184, 187 ( 372 SE2d 514 ) (1988). “The stop of [Hestley] was unauthorized and therefore the consent obtained for the search of the van was tainted and did not validate the search. [Cit.]” McKinley v. State, 213 Ga. App. 738, 740 ( 445 SE2d 828 ) (1994).

Inasmuch as the stop was unauthorized, it follows that neither the evidence obtained from the ensuing search nor the arrest could form a proper basis for the issuance of the search warrant which was ultimately obtained and, the execution of which produced the victim’s hunting knife. The good-faith exception to the exclusionary rule recognized by the U. S. Supreme Court is not applicable in Georgia in light of the legislatively-mandated exclusionary rule contained in OCGA § 17-5-30. See Gary v. State, 262 Ga. 573 ( 422 SE2d 426 ) (1992). Accordingly, I would reverse the ruling of the trial court and grant Hestley’s motion to suppress.

I fully concur with the majority in the holdings in Divisions 2, 3, 4 and 5.

I am authorized to state that Judge Ruffin joins in this dissent.