Holt v. State

Ruffin, Judge,

concurring and concurring specially.

I concur with all that is said in the majority opinion. Although Officer Hood was authorized to stop the car for the broken wind *51 shield, the “furtive” movements of the two passengers were insufficient to authorize further questioning.

I note initially, that while I agree with most of what is said in Senior Appellate Judge Banke’s concurring opinion, I believe his attention to the inconsistencies in Officer Hood’s testimony disregards the applicable standard of review. On appeal from a motion to suppress, the evidence is viewed in a light most favorable to upholding the trial court’s judgment and “ ‘(t)he credibility of the witnesses and the weight to be accorded their testimony rest with the trier of fact, who is under no obligation to believe a witness, even in the absence of contradictory testimony.’ ” (Citation omitted.) Anderson v. State, 267 Ga. 116, 118 (2) ( 475 SE2d 629 ) (1996); Tate v. State, 264 Ga. 53, 54 (1) ( 440 SE2d 646 ) (1994). Any inconsistencies in Officer Hood’s testimony presented issues of fact which were properly resolved by the trial court. See Anderson, supra; see also Gilbert v. State, 222 Ga. App. 787 (2) ( 476 SE2d 39 ) (1996). Even viewing Officer Hood’s testimony in this light, however, the evidence still shows that the trial court erred in denying Holt’s motion to suppress.

As the majority observes, Officer Hood was authorized to stop the vehicle due to the broken windshield. See OCGA § 40-8-73 (e) (it is unlawful to operate a vehicle with a windshield that has “a starburst or spider webbing effect greater than three inches by three inches”). Assuming without deciding that Officer Hood had a reasonable suspicion sufficient to authorize him to question the driver about other possible criminal activity relating to car bréak-ins (see Brisbane v. State, 233 Ga. 339 ( 211 SE2d 294 ) (1974) (reasonable suspicion authorized by early morning observation of vehicle twice driving slowly by service station which had been the scene of several recent armed robberies)), his questioning and further detention of Holt were unreasonable under the circumstances and therefore prohibited by the Fourth Amendment.

“Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” (Citations and punctuation omitted; emphasis supplied.) Roberts v. State, 193 Ga. App. 96, 98 ( 386 SE2d 921 ) (1989), citing Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968).

In this case, Officer Hood’s testimony shows that his suspicion that Holt was in the parking lot to pursue criminal activity was dis *52 pelled prior to asking Holt for his name. Specifically, Officer Hood testified: “I don’t believe I asked [the passengers] what they were doing because the driver said [they] were looking for a job. . . . The way he told me, I just took it that they were all out looking for a job after he told me that.”

The foregoing testimony unequivocally shows that Officer Hood’s initial suspicions of criminal activity were quelled by the driver’s answers prior to asking Holt any questions. Accordingly, any further detention of Holt was unnecessary, and the additional questioning of Holt was more intrusive than necessary to allay Officer Hood’s suspicion. In addition, although Officer Hood did not observe Holt’s nervous behavior until after the driver provided the explanation of their presence in the parking lot, the above testimony shows that Hood continued to believe the explanation even after observing the “furtive” actions. According to Officer Hood’s testimony, that is why he never independently asked Holt what he was doing in the parking lot.

Upon determining that Holt’s presence in the parking lot was not related to any criminal conduct, Officer Hood was not justified in continuing his investigation based solely on Holt’s “furtive” conduct. “Furtive” gestures are generally defined as those which are secret or surreptitious. See Webster’s Third New International Dictionary, p. 924 (1993). Although such gestures, in combination with other suspicious conduct, may be sufficient to create a reasonable suspicion of criminal activity, mere presence in a parking lot is insufficient. See United States v. Thompson, 712 F2d 1356, 1361 (11th Cir. 1983); Rogers v. State, 206 Ga. App. 654, 658 (3) ( 426 SE2d 209 ) (1992).

Finally, Officer Hood’s stated reasons for asking Holt for his name and date of birth were not limited to the purported purpose of the investigative stop. Officer Hood testified that he asked the questions “to see if they were wanted, and also so [he] could have their names on file, in case we had some more entering autos in the area.” It is unclear how either of these objectives could lead to a determination of whether Holt was, at the time of the stop, involved in criminal activity. See Roberts, supra. Indeed, the law clearly proscribes investigative stops for such arbitrary and harassing purposes. See generally Givens v. State, 218 Ga. App. 415, 416 (1) ( 461 SE2d 579 ) (1995) (basis of stop must be one from which court can determine that detention was not arbitrary or harassing).

After dispelling his suspicion that criminal activity was afoot, Officer Hood should have allowed Holt and his companions to go about their business. Although the continued detention and questioning might be perceived as minimal, it was an unreasonable and unnecessary intrusion and greater than the Fourth Amendment permits.

*53 I am authorized to state that Judge Eldridge joins in this special concurrence.