Opinion
A93A1082.
DECIDED NOVEMBER 23, 1993.
Habitual violator. Dougherty Superior Court. Before Judge Kelley.
Britt R. Priddy, District Attorney, Francis D. Hand, Jr., Assistant District Attorney, for appellant. Jones Jones, L. Earl Jones, Stefanie O. Jones, for appellee.
The State appeals as permitted by OCGA § 5-7-1 (4) from an order granting defendant's motion to suppress. He is charged with being a habitual violator of motor vehicle laws. OCGA § 40-5-58 (c).
1. Because there was no physical evidence sought to be introduced, defendant's motion is more accurately denominated a motion in limine to exclude the officer's testimony based on the alleged constitutional violation. Substance, not title, controls. Goswick v. State, 150 Ga. App. 279, 280 (1) ( 257 S.E.2d 303) (1979). The trial court properly reached the merits by treating the motion as one in limine. See generally State v. Johnston, 249 Ga. 413 (3) ( 291 S.E.2d 543) (1982), and Smith v. State, 185 Ga. App. 531 (2) ( 364 S.E.2d 907) (1988), where motions to suppress intoximeter test results were treated in this manner.
As to the right of appeal under OCGA § 5-7-1 (4), "if a defendant moves before trial to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion — whatever its name — is subject to direct appeal on the part of the state." State v. Strickman, 253 Ga. 287, 288 ( 319 S.E.2d 864) (1984). See also State v. McKenna, 199 Ga. App. 206 ( 404 S.E.2d 278) (1991).
2. The question is whether the officer legitimately discovered the incriminating evidence. It stemmed from a stop of the driver-defendant and an inquiry for identification and an explanation for defendant's presence.
The sole witness at the suppression hearing was a police officer who stopped defendant's car and, based on information obtained from him and checked, arrested him for driving as a habitual violator. Defendant contended that the stop violated his Fourth Amendment rights against unreasonable seizure. He did not raise the state constitution as a shield, so there was no ruling on what could have been an independent state ground. See Hayes v. State, 202 Ga. App. 204, 207 ( 414 S.E.2d 321) (1991) (Beasley, J., concurring specially); Taylor v. State, 177 Ga. App. 624, 627 (3) ( 340 S.E.2d 263) (1986).
On the use and development of independent state constitutional grounds, see especially Robert F. Williams, State Constitutional Law: Cases and Materials, 2d ed., The Michie Co., Charlottesville, Virginia (1993).
The evidence is undisputed that the officer stopped Roe to investigate. She was suspicious that he might have burglary in mind, because of his actions and because of recent burglaries in the vicinity. She thought that the other possibilities were that he was lost and needed direction or just could not find the house he was looking for.
The trial court applied the wrong standard in deciding the issue. The court twice stated, in ruling, that it thought the officer acted properly in stopping defendant, but that the evidence was inadmissible on the charge of driving as a habitual violator because such a charge was not related to the purpose of the stop. This is an error of law. See, e.g., Mays v. State, 190 Ga. App. 390 ( 378 S.E.2d 145) (1989), where the driver was stopped for driving under the influence and the driver was prosecuted also for being a habitual violator, an offense which came to the attention of the officer after the stop. See also Baker v. State, 257 Ga. 567 ( 361 S.E.2d 808) (1987), where defendant was stopped for driving with no taillights and was charged also with being a habitual violator; and Ragan v. State, 191 Ga. App. 374, 375 (2) ( 381 S.E.2d 589) (1989).
The "right for any reason" rule does not apply when the court "`acts upon an erroneous legal premise.'" Plant v. Trust Co. of Columbus, 164 Ga. App. 387, 388 ( 297 S.E.2d 37) (1982); Smith v. Andrews, 139 Ga. App. 380 ( 228 S.E.2d 320) (1976). See also All Phase Elec. Supply Co. v. Foster Cooper, Inc., 193 Ga. App. 232, 233-234 (2) ( 387 S.E.2d 429) (1989).
Furthermore, given only a cold transcript, we cannot hold as a matter of law that the stop was invalid and so uphold the ruling on that basis. The case must be remanded for the court to rule on the reasonableness of the stop (seizure). The trial court is the finder of fact on motions to suppress evidence. OCGA § 17-5-30 (b); Williams v. State, 204 Ga. App. 372, 374 ( 419 S.E.2d 351) (1992). It, rather than we, must judge the credibility of the witnesses and the weight of the evidence. Williams v. State, 256 Ga. 609, 610 (1) ( 351 S.E.2d 454) (1987). See also Duckett v. State, 206 Ga. App. 651 ( 426 S.E.2d 271) (1992), where we remanded to the trial court "as the finder of fact ... [to] make the credibility decision it avoided earlier based on an erroneous belief regarding what the law requires." Id. at 653.
Judgment reversed and case remanded with direction. Cooper and Smith, JJ., concur.