The plain language of Section 42-8-60(a) of the Official Code of Georgia, the “First Offender Act”, reads as follows:
(a) Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant:
The statute expressly permits the Court to engage in sentencing BEFORE AN ADJUDICATION OF GUILT. This where the power of the First Offender Act comes into play.
The case below, State v. Stulb, 296 Ga. App. 510 (Ga. Ct. App. 2009), makes it clear that once a plea is entered, the Act can only be used if the person has no “adjudication of guilt” yet.
Rebecca A. Wright, District Attorney, Madonna M. Little, Assistant District Attorney, Whitmer & Law, George H. Law III, Gainesville, for appellant.
Richard E. Allen, Augusta, for appellee.
Several years after William Archer Stulb was convicted of statutory rape, the trial court granted Stulb’s motion to rescind his full sentence under OCGA § 42-8-34(g) and then resentenced him as a first offender. The State of Georgia appeals, contending that the trial court lacked jurisdiction to rescind Stulb’s original sentence in its entirety and grant him first offender treatment after he had been adjudicated guilty of statutory rape. We agree. Accordingly, we reverse the trial court’s order rescinding Stulb’s original sentence and vacate the subsequently entered first offender sentence.
This is the second appearance of this case before us. In September 2005, a Columbia County jury convicted Stulb of statutory rape. At the sentencing hearing, the trial court announced a felony sentence of ten years with one year to be served in confinement and the remainder on probation, with additional conditions, fines, and fees.1 Stulb did not receive first offender treatment. After Stulb began serving his sentence, however, the trial court sua sponte resentenced him to a greater term of confinement. The trial court then entered final judgment on the conviction and the increased sentence.
On direct appeal, we affirmed Stulb’s conviction but remanded the case with direction that the original sentence be reimposed. See] Stulb v. State,279 Ga.App. 547, 631 S.E.2d 765 (2006). In July 2006, the trial court entered an order reimposing the original sentence. Again, Stulb was not sentenced as a first offender.
In February 2008, Stulb moved for the trial court to rescind his sentence in its entirety under OCGA § 42-8-34(g), and the trial court granted the motion. Stulb then requested for the trial court to resentence him under the First Offender Act, OCGA §§ 42-8-60 to 42-8-66.2 The trial court granted the request and resentenced Stulb as a first offender to 345 days in confinement, credit for time served, and 645 days probation, with the probation sentence ending on June 4, 2008, plus a fine. This appeal by the state followed.
We agree with the state’s contention that the trial court lacked jurisdiction to resentence Stulb as a first offender. The First Offender Act provides in relevant part:
Upon a verdict or plea of guilty or a plea of nolo contendere, but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant: (1) Defer further proceeding and place the defendant on probation as provided by law; or (2) Sentence the defendant to a term of confinement as provided by law.
(Emphasis supplied.) OCGA § 42-8-60(a). By the plain terms of the statute, “a trial court is only authorized to grant first offender treatment before a defendant has been adjudicated guilty and sentenced.” (Emphasis in original.) Burchette v. State, 274 Ga. App. 873, 874, 619 S.E.2d 323 (2005). See Lewis v. State, 217 Ga.App. 758, 759, 458 S.E.2d 861 (1995). Here, the trial court previously had entered final judgment on the felony statutory rape conviction and had sentenced Stulb accordingly. Having done so, the trial court could not unwind the clock and modify the final judgment of conviction and sentence in order to grant first offender treatment. SeeBurchette, 274 Ga.App. at 874, 619 S.E.2d 323; Lewis, 217 Ga.App. at 759, 458 S.E.2d 861.
Stulb argues, however, that the trial court retained jurisdiction under OCGA § 42-8-34(g) to rescind his prior sentence in its entirety, rendering that sentence a mere nullity. Stulb maintains that once his prior sentence was rescinded, he was in the same position as any defendant who had been convicted but not yet sentenced, and that the trial court was then free to impose any sentence it saw fit, including a first offender sentence. We are unpersuaded.
OCGA § 42-8-34(g) states:
The sentencing judge shall not lose jurisdiction over any person placed on probation during the term of the person’s probated sentence. The judge is empowered to revoke any or all of the probated sentence, rescind any or all of the sentence, or, in any manner deemed advisable by the judge, modify or change the probated sentence … at any time during the period of time prescribed for the probated sentence to run.
We have held that this statutory subsection authorizes a sentencing judge to modify or rescind the probation portion of a defendant’s sentence during the period of time prescribed for the probated sentence to run, but not the underlying judgment of conviction or the confinement portion of the sentence. See Levell v. State, 247 Ga.App. 615, 616-617(1), 544 S.E.2d 523 (2001); State v. James, 211 Ga.App. 149, 150-151(2), 438 S.E.2d 399 (1993). Hence, while the trial court could rescind the probation portion of Stulb’s sentence, the court lacked jurisdiction to rescind the underlying judgment of conviction or the confinement portion of his sentence. The trial court’s attempt to do so in order to impose first offender treatment, therefore, was a mere nullity. See James, 211 Ga.App. at 150-151, 438 S.E.2d 399.
For the foregoing reasons, the trial court did not have authority to rescind Stulb’s sentence in its entirety and then resentence him under the First Offender Act. We thus reverse the trial court’s order that rescinded Stulb’s full sentence and vacate Stulb’s first offender sentence entered thereafter, with the result that Stulb’s original sentence is rendered in full force and effect.
Judgment reversed and sentence vacated.
ANDREWS, P.J., and DOYLE, J., concur.
- Stulb was 18 years old and the female victim was 14 years old at the time of the sexual contact. The current version of the statutory rape statute provides: “If the victim is at least 14 but less than 16 years of age and the person convicted of statutory rape is 18 years of age or younger and is no more than four years older than the victim, such person shall be guilty of a misdemeanor.” OCGA § 16-6-3(c) (2008). But this misdemeanor exception was not added until 2006, after Stulb’s conviction in the present case. See OCGA § 16-6-3 (2005); Ga. L. 2006, p. 379, § 10.
- Stulb sought to be resentenced as a first offender because of Georgia’s sexual offender registration law. Under that law, a person must register as a sexual offender if, inter alia, he is convicted on or after July 1, 1996 of “a criminal offense against a victim who is a minor.” OCGA § 42-1-12(e)(1). For convictions after June 30, 2001, “criminal offense against a victim who is a minor” includes any criminal offense under Title 16 of the Georgia Code that consists of “[c]riminal sexual conduct toward a minor.” OCGA § 42-1-12(a)(9)(B)(iii). Statutory rape falls within the category of criminal sexual conduct toward a minor. See Planas v. State, 296 Ga.App. 51, 53(2), 673 S.E.2d 566 (2009). And while “conduct which is punished as for a misdemeanor … shall not be considered a criminal offense against a victim who is a minor,” OCGA § 42-1-12(a)(9)(C), Stulb was convicted of felony statutory rape based on the version of the statutory rape statute then in effect. See OCGA § 16-6-3 (2005). Similarly situated persons convicted of statutory rape today would receive a misdemeanor sentence and would not have to register as a sex offender. See OCGA § 16-6-3(c) (2008).
Although Stulb had to register as a sexual offender, the grant of first offender treatment would affect how long he would be subject to the registration requirements. See OCGA § 42-1-12(a)(8) (“A defendant who is discharged without adjudication of guilt and who is not considered to have a criminal conviction pursuant to Article 3 of Chapter 8 of this title, relating to first offenders, shall be subject to the registration requirements of this Code section for the period of time prior to the defendant’s discharge after completion of his or her sentence or upon the defendant being adjudicated guilty. Unless otherwise required by federal law, a defendant who is discharged without adjudication of guilt and who is not considered to have a criminal conviction pursuant to Article 3 of Chapter 8 of this title, relating to first offenders, shall not be subject to the registration requirements of this Code section upon the defendant’s discharge.”).
Some claims involve the deprivation of personal rights, but are, in fact, contract-based claims. One such assertion is “unjust enrichment”, which is often asserted as a form of conversion or theft. While conversion (stealing a property right from another and treating it as the property of the thief, instead) can be a tort action, unjust enrichment is, instead, a different kind of contract claim – one that arises when no formal contractual relationship is established by the evidence, and it is instead an alternative theory of recovery if the asserted contract cannot be proven.
This case, Tidikis v. Network for Medical Communications and Research, LLC, et al., 619 S.E.2d 481, 274 Ga. App. 807 (Ga. Ct. App. 2005), illustrates the nature of the claim as only an alternate theory of recovery, rather than an independent tort of its own.
COPYRIGHT MATERIAL OMITTED
Dorothy Y. Kirkley, Kirkley & Payne, Thomas L. Hawker, Kirkley & Hawker, LLC, Atlanta, for Appellant.
Stephen X. Munger, L. Dale Owens, Jackson Lewis LLP, Atlanta, for Appellees.
RUFFIN, Chief Judge.
After he was terminated from his employment, Frank Tidikis filed suit against his former employer, Network for Medical Communications & Research, LLC (“NMCR”), its two founders, and American Capital Strategies, Ltd., asserting multiple causes of action. The defendants moved for judgment on the pleadings, and the trial court granted the motion. Tidikis appeals. For reasons that follow, we affirm in part and reverse in part.
“On motion for judgment on the pleadings, the trial court is required to accept all well pleaded material allegations of fact as true, but need not adopt a party’s legal conclusions based on these facts.”1 And, in considering such motion, the trial court may consider an exhibit contained within the pleading.2 The granting of judgment on the pleadings “is proper only where there is a complete failure to state a cause of action or defense[,] and the movant is thus entitled to judgment as a matter of law.”3
Viewed in this manner, the complaint alleges that in July 2001, Frank Tidikis became president and chief executive officer of Network for Medical Communication & Research, LLC (“NMCR”), a company founded by Dr. Joe Allegra and Dr. Stanley Winokur. Tidikis signed an employment contract, which provided for an initial three-year term, after which the contract would automatically renew for one-year terms.
The contract also set forth the manner in which Tidikis could be terminated. In pertinent part, the contract stated that NMCR could terminate Tidikis without cause by giving 30 days notice, but that if Tidikis was terminated in this manner, he “shall continue to receive his full base salary and . . . benefits for twelve (12) months following [his] termination.” Tidikis also could be fired for cause, which the contract defined as:
(i) Employee shall commit a felony or other act involving moral turpitude, which other act is materially detrimental to NMCR, (ii) Employee shall knowingly commit any act of prohibited conduct as set forth in Item 3 of this Agreement, (iii) Employee shall commit any act, specifically including but not limited to drug or alcohol abuse, which act is materially harmful to NMCR, (iv) intentional or gross neglect of Employee’s duties, or (v) breach of any other material provision of this Agreement.
After becoming president and CEO, Tidikis received the highest possible rating in all categories of his performance evaluations.
In January 2002, American Capital Strategies (“ACS”) recapitalized NMCR, thereby obtaining over 50 percent ownership interest in the company. The five person board of managers was reconstituted to give ACS a majority of managers, and ACS appointed two of its principals as well as Tidikis to serve in this capacity. Allegra and Winokur also served on the board.
As a result of the change, Tidikis signed an amendment to his employment contract that gave him various investment opportunities with NMCR. After the recapitalization, Tidikis obtained certain stock options. Tidikis also was given both the opportunity to purchase “membership units” and the right to participate in “clawback shares.” Under the amended employment contract, NMCR retained the right to repurchase Tidikis’ equity interest in the company for $1 per share if Tidikis either voluntarily resigned or was fired for cause.
Beginning in 2002, NMCR began negotiating with Cardinal Health for the purchase of NMCR. According to the complaint, the sale was scheduled to close in August 2003. Upon closing, Tidikis’ stock options would vest, his membership units would remain intact, and he would receive full value for his “clawback shares,” or approximately $1.7 million. Furthermore, Cardinal Health indicated that it would retain the management of NMCR for at least two years following the purchase.
In March 2003, Tidikis learned of a proposed “special distribution” from NMCR to ACS. Tidikis opposed this distribution, which he believed negatively impacted NMCR and its members. Thus, Tidikis voted against the distribution, but the measure passed with him as the lone dissenter. Although Tidikis asked that the minutes from the meeting reflect his dissension, his request was not honored.
Several months later, Tidikis was informed that he was being placed on administrative leave pending an investigation of his conduct as CEO. Specifically, Tidikis was claimed to have created a hostile work environment and to have been abusive toward employees. Tidikis was subsequently terminated for cause.
Asserting that the charges against him were baseless, Tidikis filed suit against NMCR, ACS, Allegra, and Winokur, alleging, inter alia: (1) unjust enrichment; (2) conversion; (3) breach of fiduciary duty; and (4) two counts of tortious interference with contract.4 The defendants filed a joint motion to dismiss these claims on the pleadings, which the trial court granted. This appeal ensued.
1. Breach of Fiduciary Duty. In the motion to dismiss, the defendants argued that Tidikis failed to show what, if any, fiduciary duty was owed to him. The defendants further argued that since they had the statutory and contractual right to terminate Tidikis, they could not be held to have breached a fiduciary duty by exercising such right. According to the defendants, Tidikis’ breach of fiduciary claim is simply an attempt to circumvent the general principle that Georgia does not recognize a tort claim for “wrongful termination.”
On appeal, the defendants contend that, following an alleged wrongful termination, an employee’s remedy, if any, is for breach of contract. In support of this argument, the defendants cite OCGA § 34-7-1, which provides, in relevant part, that “[a]n indefinite hiring may be terminated at will by either party.” The defendants also cite numerous cases holding that such at-will employees have “no viable state remedy in the form of a tort action for wrongful discharge against [their] former employer[s].”5 Here, however, Tidikis signed a contract for a definite term, and thus does not fall within the ambit of OCGA § 34-7-1.
Nonetheless, under the employment contract, NMCR had the right to terminate Tidikis without cause. Thus, his situation is analogous to that of an at-will employee. “It is generally held that no liability for procuring a breach of contract exists where the breach is caused by the exercise of an absolute right — that is, an act which a man has a definite legal right to do without any qualification.”6 Since NMCR and its board members had the right to terminate Tidikis under the contract, the defendants essentially contend that Tidikis should not be able to hold the defendants liable in tort based upon his termination.
However, there is an exception for a breach of fiduciary duty claim. As a general rule, “a breach of contract cannot constitute a tort unless a special or confidential relationship exists between the parties.”7 “[A]lthough some confidential relationships are created by law and contract (e.g., partners), others may be created by the facts of the particular case.”8 The existence of a confidential relationship is generally a jury question.9
Tidikis argues that Allegra and Winokur, who recruited him, are bound by his employment contract, which contains a clause purporting to establish a confidential relationship. Specifically, the clause provides that the “parties acknowledge and agree that a fiduciary and confidential relationship has commenced and will continue to exist between them and that said relationship will continue during the term of this Agreement.” Given this language purporting to establish a confidential relationship, we cannot say that Tidikis completely failed to state a cause of action for breach of fiduciary duty.10 Accordingly, the trial court erred in granting the defendants’ motion for judgment on the pleadings with respect to this claim.11
2. Unjust Enrichment. In his complaint, Tidikis alleges that the defendants, “[b]y terminating [him], divesting [him] of his options and Clawback Shares, and denying [him] the full value of his membership units, . . . unjustly enriched themselves in an amount to be proven at trial.” In phrasing the complaint in this manner, Tidikis apparently is treating the unjust enrichment claim like a tort — e.g., the defendants violated his legal right to property interests.12 However, a claim for unjust enrichment is not a tort, but an alternative theory of recovery if a contract claim fails.13
“The theory of unjust enrichment applies when there is no legal contract and when there has been a benefit conferred which would result in an unjust enrichment unless compensated.”14 Here, any benefit conferred on the defendants was triggered by a provision in the contract, the validity of which neither Tidikis nor the defendants challenge. Under these circumstances, the unjust enrichment claim fails as a matter of law.15 It follows that the trial court properly granted the defendants’ motion for judgment on the pleadings with respect to this claim.
3. Conversion. In his complaint, Tidikis alleges that by terminating him, divesting him of his various stock options and investment interests, and attempting to purchase his membership units for $1 per share, the “Defendants — individually, or in conspiracy with each other — have converted such personal property by misappropriating and exercising the right of ownership over such personal property in hostility to [Tidikis'] rights.”
As this Court recently reiterated, [c]onversion involves an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to [his] rights. The very essence of conversion is that the act of dominion is wrongfully asserted. Thus, if a party has a right to assert ownership, the act of dominion is not wrongful and does not constitute conversion.16 Here, the only manner in which the defendants may have assumed ownership over the stock options and other investment interests is through the employment contract, which authorized such assumption. Thus, Tidikis is arguably trying to create a tort cause of action from breach of contract claim.17 However, in Schoenbaum Ltd. Co. v. Lenox Pines, this court held that although “a tort action cannot be based on the breach of a contractual duty only, it can be based on conduct which, in addition to breaching a duty imposed by contract, also breaches a duty imposed by law.”18 In that case, we found that the breach of a fiduciary duty gave rise to a conversion claim in addition to the breach of contract claim. As discussed in Division 1, Tidikis arguably has a viable breach of fiduciary duty claim.19 Given the possible breach of fiduciary duty claim, the trial court erred in granting the defendants’ motion for judgment on the pleadings on Tidikis’ conversion claim.
4. Tortious Interference. In order to establish a claim for tortious interference with contractual relations or potential business relations, Tidikis must allege the following elements:
(1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant’s tortious conduct proximately caused damage to the plaintiff.20
Moreover, “in order to be liable for tortious interference, one must be a stranger to both the contract at issue and the business relationship giving rise to and underpinning the contract.”21 “The exercise of an absolute legal right is not and cannot be considered an interference with a contractual or potential contractual relationship,” because privilege includes legitimate economic interests of the defendant or a legitimate relationship of the alleged interloper or meddler to the contract.22 Accordingly, if the defendant has a legitimate economic interest in either the contract or a party to the contract, then the defendant is not a stranger to the contract and acts with privilege.23Where a defendant has a financial interest in one of the parties to the contract or in the contract, the defendant is not a stranger to the contract or business relationship, even though it is not a signatory to the contract.24
(a) Tortious Interference with Employment Contract by ACS. According to Tidikis’ complaint, ACS tortiously interfered with his employment contract by inducing NMCR to terminate him. However, the complaint also alleges that ACS is the majority shareholder in NMCR. Accordingly, ACS has a financial interest in one of the parties to the contract, and it is not a stranger to the employment contract. Under these circumstances, the trial court did not err in dismissing this count.25
(b) Tortious Interference with Prospective Employment by ACS. Tidikis also alleges that ACS interfered his prospective employment with Cardinal Health, which Tidikis claims would have retained him following its purchase of NMCR. However, there is no evidence that Tidikis had an employment offer from Cardinal Health. Tidikis merely anticipated that he would be retained. Under these circumstances, it is clear that Tidikis’ claim is predicated on ACS’ termination of him from his job at NMCR. Thus, his claim fails because ACS was not a stranger to the employment contract.26
5. Leave to Amend. Finally, Tidikis argues that, “[a]t a minimum, the trial court should have allowed [him] leave to amend [the complaint]” rather than dismiss the tort claims. As noted by the defendants, however, “[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.”27 Here, Tidikis does not allege that the trial court prevented him from amending his complaint. And he cites no evidence that the trial court actually refused to permit such amendment. “The burden is upon the party alleging error to show it affirmatively in the record.”28 Given Tidikis’ failure to establish error, this allegation presents no basis for reversal.
Judgment affirmed in part and reversed in part.
2. See id.
4. Tidikis also filed suit for breach of his employment contract. The defendants did not move for judgment on the pleadings with respect to this claim, and it was not included in the trial court’s order of dismissal. Thus we do not address this claim on appeal, and it remains pending.
10. See Gibbs v. Dodson, 229 Ga.App. 64, 67(1), 492 S.E.2d 923 (1997) (summary judgment on breach of fiduciary claim improper where “agreement on its face establishes the parties’ intent that there would be a continuing fiduciary relationship”).
12. See OCGA § 51-1-1, which defines a tort as “the unlawful violation of a private legal right other than a mere breach of contract, express or implied.”
13. See, e.g., Fed. Ins. Co. v. Westside Supply Co., 264 Ga.App. 240, 247-248(8), 590 S.E.2d 224 (2003); Smith Svc. Oil Co. v. Parker, 250 Ga.App. 270, 272(4), 549 S.E.2d 485 (2001); Watson v. Sierra Contracting Corp., 226 Ga.App. 21, 28(c), 485 S.E.2d 563 (1997) (physical precedent only).
14. (Punctuation omitted.) Smith Svc. Oil, supra.
15. See Bonem v. Golf Club of Ga., Inc., 264 Ga.App. 573, 578-579(3), 591 S.E.2d 462 (2003) (plaintiff entitled to summary judgment on defendant’s counterclaim for unjust enrichment where dispute governed by legal contract).
17. See Monroe, supra; Morris v. Nat. Western Life Ins. Co., 208 Ga.App. 443, 445(2), 430 S.E.2d 813 (1993) (an action for conversion “does not lie on account of a mere failure to pay money due under a contract”).
19. See id. (summary judgment on conversion claim inappropriate where plaintiff alleged a breach of fiduciary duty claim in addition to a breach of contract claim).
23. Id. at 741, 492 S.E.2d 526.
25. Cox v. City of Atlanta, 266 Ga.App. 329, 333(1), 596 S.E.2d 785 (2004) (“`(p)roof that (the defendant) was no stranger to the business relations at issue is fatal to (the plaintiff’s) claim of tortious interference with business relations.’”).
26. See id.
27. OCGA § 9-11-15(a).
JOHNSON, P.J., and BARNES, J., concur.
ON MOTION FOR RECONSIDERATION
On motion for reconsideration, the defendants challenge our ruling that Tidikis’ conversion claim survived the defendants’ motion for judgment on the pleadings. According to the defendants, the membership units, “Clawback Shares,” and stock options are intangible, and thus cannot be the subject of a conversion claim as a matter of law. We disagree.
The Supreme Court recently addressed a similar argument in Decatur Auto Center v. Wachovia Bank.29 In that case, the Supreme Court was presented with the issue of whether a conversion claim could be brought against a bank that paid a check notwithstanding the existence of a stop-payment order. In holding that such a cause of action can be maintained, the Supreme Court noted that “[c]onversion of a document, such as a check, promissory note, or negotiable instrument, includes `the full value of the intangible rights identified with’ the document.”30 In other words, if a document represents an exact value, a claim may be held for conversion of such document.
Here, the parties are merely at the pleading stage, and the record has not been fully developed as to the nature of the various documents that Tidikis alleges the defendants have converted. Thus, we are unable to conclude that the documents lack definite value such that the defendants are entitled to judgment as a matter of law on the conversion claim.31
In the alternative, the defendants request that the conversion claim against NMCR and ACS be dismissed. In our ruling, we predicated the continued viability of the conversion claim on the existence of the breach of fiduciary duty claim. According to the defendants, Tidikis did not allege a breach of fiduciary duty claim against NMCR. The defendants further assert that Tidikis abandoned his breach of fiduciary duty claim against ACS.
With respect to NMCR, we agree that Tidikis’ failure to allege a breach of fiduciary duty claim against this defendant is fatal to his conversion claim against it. Accordingly, the trial court did not err in granting summary judgment as to this defendant. The same cannot be said with respect to ACS, however.32 In support of its assertion that Tidikis abandoned its claim, the defendants cite to page one of the appellee’s original brief. This page contains only the conclusory statement that the claim has been abandoned, but provides no further elucidation, which precludes our consideration of this argument.33
30. Id. at 820, 583 S.E.2d 6.
31. See South, supra.
32. In his response to defendants’ Motion for Reconsideration, Tidikis denies that he abandoned his claim against ACS.
33. See Habel, supra at 618(2), 597 S.E.2d 645.
The use of an alibi (the “some other dude done it” defense) is governed in Georgia by Section 17-16-5 of the Official Code of Georgia, which states the duties of the State and the Defense pretty plainly:
(a) Upon written demand by the prosecuting attorney within ten days after arraignment, or at such time as the court permits, stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days of the demand of the prosecuting attorney or ten days prior to trial, whichever is later, or as otherwise ordered by the court, upon the prosecuting attorney a written notice of the defendant’s intention to offer a defense of alibi. Such notice by the defendant shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the defendant, upon whom the defendant intends to rely to establish such alibi unless previously supplied.
(b) The prosecuting attorney shall serve upon the defendant within five days of the defendant’s written notice but no later than five days before trial, whichever is later, a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses, if known to the state, upon whom the state intends to rely to rebut the defendant’s evidence of alibi unless previously supplied.
(c) If prior to or during trial, a party learns of an additional witness whose identity, if known, should have been included in the information furnished under subsection (a) or (b) of this Code section, the party shall promptly notify the other party of the existence and identity of such additional witness.
(d) Upon a showing that a disclosure required by this Code section would create a substantial threat of physical or economic harm to a witness, the court may grant an exception to any of the requirements of subsections (a) through (c) of this Code section.
(e) If the defendant withdraws the notice of intention to rely upon an alibi defense, the notice and intention to rely upon an alibi defense are not admissible. However the prosecuting attorney may offer any other evidence regarding alibi.
The genuinely important part of that section is subsection (b), because that “shall” has been litigated, and the Court found that the State has a mandatory duty to play fair with the Defendant and disclose their evidence under the statute. In 1999, the Georgia Supreme Court decided White v. State, 271 Ga. 130, in which it expressly talked about the issue of fairness to the person accused of a crime by pointing out that the failure of the State to comply with those mandatory rules (after it has received the notice of alibi described by statute) does not demand a verdict of acquittal, but rather it can mean a continuance, or even exclusion of evidence:
Lawrence E. Maioriello, Augusta, for appellant.
Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.
FLETCHER, Presiding Justice.
We granted certiorari to consider the scope of the state’s obligation under OCGA § 17-16-5(b) to make a written response to a defendant’s notice of alibi. We hold that the statute imposes reciprocal obligations and therefore disapprove the Court of Appeals of Georgia’s contrary holding.1 Nevertheless, we affirm the conviction because the defendant failed to object to the state’s rebuttal witnesses.
A jury convicted Ernest Ray White of aggravated assault, burglary, and kidnapping with bodily injury. Prior to trial, White gave written notice to the state of his intention to offer an alibi defense. The state did not provide White with a written response regarding the witnesses it planned to call to rebut the alibi defense. White moved for directed verdict, contending that the state failed to rebut his alibi defense. The trial court denied the motion and the court of appeals affirmed, holding that the victim’s identification of White as her attacker was sufficient to rebut his alibi defense.2 The court of appeals also held that the state had no obligation to file a reply to White’s alibi notification because OCGA § 17-16-5 is solely a means of discovery by the state.3
1. OCGA § 17-16-5 was enacted in 1994 as part of a comprehensive act to broaden discovery in criminal cases.4 The purpose of the act is to prevent surprise and trial by ambush and reduce the caseload of the criminal trial courts.5 To achieve this goal, the act imposes an affirmative duty on both the defendant and the state to disclose specific information. Upon a demand by the state, OCGA § 17-16-5(a) requires the defendant to disclose in writing an intention to rely upon an alibi defense. The written notice must be specific with regard to the place the defendant claims to have been at the time of the alleged offense and must provide the names, addresses, dates of birth, and telephone numbers of the witnesses upon whom the defendant intends to rely.
Once the defendant has provided this notice, the state “shall serve upon the defendant… a written notice stating the names, addresses, dates of birth, and telephone numbers of the witnesses … upon whom the state intends to rely to rebut the defendant’s evidence of alibi unless previously supplied.” The use of the word “shall” indicates clearly that the state is required to file a rebuttal to the defendant’s notification.6 Because the court of appeals’ contrary statement ignores the plain language of the statute, we disapprove this holding.
2. The state contends that it satisfied its obligation under OCGA § 17-16-5 because it had previously supplied a list of witnesses and the rebuttal witnesses were named on that list. The statute, however, is concerned not with witnesses generally, but with witnesses who will testify regarding the alibi defense. Requiring specific disclosure of the witnesses upon whom the state will rely to rebut the alibi furthers the act’s purpose of preventing surprise and promoting fairness. Furthermore, a defendant who knows which witnesses will testify to rebut an alibi can more accurately assess the strength of his case prior to trial and may consider avoiding a trial through a plea bargain.7
3. The state’s failure to comply with OCGA § 17-16-5 does not, however, demand that a trial court grant a defendant’s motion for acquittal. When the state fails to comply with any of the discovery provisions, OCGA § 17-16-6 provides remedies, which include the grant of a continuance and the exclusion of evidence. The record reveals that White did not raise the state’s noncompliance at trial. Therefore, White did not give the trial court the opportunity to exercise its discretion in formulating an appropriate remedy and cannot complain for the first time on appeal.
4. The court of appeals reviewed the evidence under the proper standard and found it sufficient to support White’s convictions.
All the Justices concur.
4. 1994 Ga. Laws 1895.
5. See Jeffrey A. Hannah, Peach Sheet, Criminal Procedure, 11 Ga. St. U.L.Rev. 137, 138 (1994) (discussing enactment of criminal discovery provisions).
7. Hannah, Criminal Procedure, 11 Ga. St. U.L.Rev. at 154.
Frequently, people who are trying not to do something illegal and “take the law into their own hands” turn to the only methods available to them for faster remedy of their interpersonal disputes – Magistrate Court private warrant applications. After all, if a warrant issues against the other person, they will be arrested and miserable and suffer extraordinarily. Often, folks fail to think their actions through fully, and the long-term consequences they can be made to suffer from doing this without cause are far worse than the short-term gratification they got out of it. However, they still do it.
This case, Renton v. Watson, 319 Ga. App. 896, 739 S.E.2d 19 (Ga. Ct. App. 2013), talks a little about why that is a good or bad idea. Of particular note are certain things to observe about this dispute – there is NO liability for claims made in a judicial proceeding, even if they are LIES (the grant of immunity to claims made in such proceedings was protected by the Court); even the severe emotional distress that would necessarily be caused by the lawsuit/legal action filed against a person doesn’t give rise to a cause of action for the same, BUT; if the lies are told outside the context of that judicial proceeding (including a sworn warrant application), those lies are actionable and attorney’s fees “shall” be granted:
Ernest Dewitt Napier III, for Appellant.
Tisinger Vance, Rebecca Jean Dobras, Kenneth Brown Crawford, Carrollton, for Appellee.
BARNES, Presiding Judge.
Dana Renton filed an amended complaint against Monica Watson in which she sought damages for malicious prosecution, defamation, and intentional infliction of emotional distress. The trial court granted Watson’s motion to dismiss the amended complaint for failure to state a claim upon which relief could be granted and awarded her attorney fees. For the reasons discussed below, we affirm the trial court’s dismissal of the malicious prosecution and emotional distress claims, but reverse its dismissal of the defamation claim and its award of attorney fees.
Under OCGA § 9–11–12(b)(6), a motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor. (Citation and punctuation omitted.) Anderson v. Daniel, 314 Ga.App. 394, 395, 724 S.E.2d 401 (2012). Additionally, in considering whether a motion to dismiss should be granted, the trial court may consider exhibits attached to and incorporated into the complaint. See OCGA § 9–11–10(c); Bakhtiarnejad v. Cox Enterprises, 247 Ga.App. 205, 208(1), 541 S.E.2d 33 (2000).
Mindful of these principles, we turn to the allegations in the present case. The complaint alleges that Renton discovered that Watson was having an extramarital affair, which caused Watson and her husband to divorce. According to the complaint, Watson, who “harbor[ed] ill will towards [Renton]” for discovering the affair, maliciously and without any foundation applied for a warrant to have Renton arrested for forgery. Consequently, Renton was ordered to appear at a hearing on the warrant application before the Magistrate Court of Carroll County where Watson was to appear as the prosecuting witness.
The complaint further alleges that at the beginning of the hearing on the warrant application, Watson falsely declared that Renton had forged her name when the magistrate inquired about the nature of the case. However, before the hearing proceeded any further, the magistrate recessed the proceedings so that counsel for the parties could attempt to negotiate a resolution. After counsel reached an agreement, Watson voluntarily dismissed her warrant application without prejudice.
Renton subsequently filed her verified complaint for damages against Watson, asserting claims for malicious prosecution, intentional infliction of emotional distress, punitive damages, and attorney fees. Watson answered, moved to dismiss the complaint for failure to state a claim upon which relief could be granted under OCGA § 9–11–12(b)(6), and moved for attorney fees under OCGA § 9–15–14. Renton responded to the motions and also amended her complaint to add a claim for defamation per se. Renton attached as an exhibit to her amended complaint the transcript of the hearing before the magistrate on the arrest warrant application.
Following a hearing on the motion to dismiss, the trial court granted Watson’s motion and dismissed Renton’s amended complaint. The trial court concluded that the malicious prosecution claim failed as a matter of law because an arrest warrant was never issued. The trial court concluded that the defamation and intentional infliction of emotional distress claims were barred by the absolute privilege afforded for statements made in judicial proceedings. The trial court also awarded $1,400 in attorney fees to Watson on the ground that Renton had failed to present a justiciable issue of law or fact. This appeal followed.
1. Renton first contends that the trial court erred in dismissing her malicious prosecution claim on the ground that an arrest warrant had never been issued. We disagree.
The six essential elements of a malicious prosecution claim are “(1) prosecution for a criminal offense; (2) instigated without probable cause; (3) with malice; (4) under a valid warrant, accusation or summons; (5) which has terminated favorably to the plaintiff; and (6) has caused damage to the plaintiff.” Wal–Mart Stores v. Blackford, 264 Ga. 612, 613, 449 S.E.2d 293 (1994). See OCGA § 51–7–40. As the fourth element makes clear, “[t]o be actionable as a malicious prosecution under [our] precedents, an attempt to have someone prosecuted must result in the issuance of a valid warrant, summons, accusation, or other formal process.” Peterson v. Banker, 316 Ga.App. 571, 572, 730 S.E.2d 89 (2012) (citing cases).
The allegations of the amended complaint and the transcript of the warrant application hearing reflect that the warrant application submitted by Watson did not result in the issuance of an arrest warrant. Rather, Watson voluntarily dismissed her warrant application, and Renton was never arrested. Given that the no arrest warrant was issued by the magistrate, the trial court properly dismissed her malicious prosecution claim. See Peterson, 316 Ga.App. at 572, 730 S.E.2d 89 (trial court erred in awarding damages for malicious prosecution “for the warrant applications that resulted in the issuance of no warrant”); Cox v. Turner, 268 Ga.App. 305, 306(1), 601 S.E.2d 728 (2004)(“Since it is clear from the pleadings that a warrant was not issued, [the plaintiff's] claim for malicious prosecution must fail.”). See also Swift v. Witchard, 103 Ga. 193(2), 29 S.E. 762 (1897) (“Simply making an affidavit before a justice of the peace, charging one with an offense against the criminal laws of this State, when not followed up by an arrest, does not render the prosecution, even if malicious and without probable cause, actionable.”).
Renton, however, emphasizes that a malicious prosecution claim can be predicated on a valid warrant, accusation or summons. See Wal–Mart Stores, 264 Ga. at 613,449 S.E.2d 293. Because she was ordered to appear before the magistrate for the hearing on the warrant application, Renton maintains that she was “summoned” before a court and thus satisfied the fourth element of a malicious prosecution claim even without the issuance of an arrest warrant. But “summons” in this context means formal legal process charging a person with a criminal offense and conferring a court jurisdiction over the subject matter. See Peterson, 316 Ga.App. at 572, 730 S.E.2d 89 (malicious prosecution claim requires “issuance of a valid warrant, summons, accusation, or other formal process ”) (emphasis supplied); Cary v. Highland Bakery, 50 Ga.App. 553, 554–555, 179 S.E. 197 (1935) (malicious prosecution claim requires that “the warrant or other accusation or summons charging the plaintiff with a criminal offense be a valid warrant, accusation, or summons, charging such person with some criminal offense”) (emphasis supplied). For example, certain misdemeanor offenses may be tried upon a summons rather than an accusation. See, e.g., OCGA §§ 17–7–71(b)(2); 17–7–72; 17–7–73. The magistrate’s order requiring Renton to attend the warrant application hearing thus was not a “summons” as that term is understood in the malicious prosecution context.
Renton relies upon McNeely v. Home Depot, 275 Ga.App. 480, 482, 621 S.E.2d 473 (2005), as authority for the proposition that a malicious prosecution claim can be brought so long as the plaintiff is required to appear before a court. In McNeely, we held that evidence that the plaintiff was brought before a judge raised an inference that he was taken before a “committing court,” which went to the issue of whether the plaintiff was “prosecuted,” the first element of a malicious prosecution claim. See Wal–Mart Stores, 264 Ga. at 613, 449 S.E.2d 293 (setting out six elements of a malicious prosecution claim); Page v. Citizens Banking Co., 111 Ga. 73, 84(4), 36 S.E. 418 (1900)(inquiry before a “committing court” amounts to a “prosecution”). See also OCGA § 51–7–42 (“[A]n inquiry before a committing court or a magistrate shall amount to a prosecution.”). But that was a separate legal question from whether the fourth element of a malicious prosecution claim—issuance of a valid warrant, summons, or accusation—had been satisfied. See Swift, 103 Ga. at 193(2), 29 S.E. 762 (noting that “there must at least have been an arrest and an inquiry before a committing court,” before a malicious prosecution claim is actionable) (emphasis supplied). Moreover, in discussing the factual background in McNeely, this Court made clear that an arrest warrant had been sworn out against the plaintiff, with the result that he had been arrested and jailed for several days before he was brought before a judge. See McNeely, 275 Ga.App. at 481,621 S.E.2d 473. Because the fourth element of a malicious prosecution claim clearly had been satisfied and was not at issue in McNeely, Renton’s reliance on the case is misplaced.
2. Renton next contends that the trial court erred in dismissing her defamation claim on the ground that it was barred by the absolute privilege for statements made in judicial proceedings. We conclude that the trial court was correct to dismiss Renton’s defamation claim to the extent that it was predicated on statements made by Watson in her warrant application and at the hearing on the application because those statements were absolutely privileged. But, construed in Renton’s favor, her complaint also alleges the communication of defamatory statements to third parties that was not privileged. Consequently, the trial court committed error by dismissing Renton’s defamation claim in toto.
Generally, there are four elements in a cause of action for defamation: (1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting at least to negligence; and (4) special harm or the actionability of the statement irrespective of special harm.
(Citation and punctuation omitted.) Wertz v. Allen, 313 Ga.App. 202, 205(1), 721 S.E.2d 122 (2011). Some statements, although defamatory, are not actionable because they are considered privileged. See OCGA §§ 51–5–7; 51–5–8. There are two types of privilege, absolute and conditional. Wertz, 313 Ga.App. at 206(1), 721 S.E.2d 122. “Communications which are afforded an absolute privilege cannot form the basis of a defamation action, regardless of the falsity of the statements or the speaker’s malicious intent; conditionally privileged statements, on the other hand, are actionable upon a showing of malice.” (Citation and punctuation omitted.) Id.
OCGA § 51–5–8, which grants an absolute privilege from suit for defamatory statements made in judicial “pleadings,” provides:
All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.
See Stewart v. Walton, 254 Ga. 81, 82(2), 326 S.E.2d 738 (1985) (noting that OCGA § 51–5–8 creates an absolute privilege from suit). 1 The absolute privilege afforded by OCGA § 51–5–8 is not limited to “ pleadings” as defined by OCGA § 9–11–7(a) of the Civil Practice Act but “has been more broadly construed … to include ‘official court documents’ and acts of ‘legal process.’ ” (Citations and punctuation omitted.) Williams v. Stepler, 227 Ga.App. 591, 595(3), 490 S.E.2d 167 (1997).
Furthermore, in addition to OCGA § 51–5–8, Georgia courts have afforded an absolute privilege to statements made in court by a witness that are responsive to a question posed by the trial court or counsel. See Rivers v. Goodson, 188 Ga.App. 661, 373 S.E.2d 843 (1988); Gallaher v. Teeple, 183 Ga.App. 31, 35(2), 357 S.E.2d 808 (1987); Hendrix v. Daughtry, 3 Ga.App. 481, 482–483, 60 S.E. 206 (1908). Likewise, a proffer of a witness’s proposed testimony made to the trial court is absolutely privileged, if the testimony itself would be relevant to the proceedings. See Bell v. Anderson, 194 Ga.App. 27, 28–29, 389 S.E.2d 762 (1989).
The amended complaint alleges that Watson falsely accused Renton of forgery in her arrest warrant application and at the hearing on the warrant application in response to an inquiry from the magistrate. We conclude that Watson’s allegedly false statements were absolutely privileged under OCGA § 51–5–8 and our precedent affording an absolute privilege to responsive statements made by a witness in court. See Bell, 194 Ga.App. at 28–29, 389 S.E.2d 762;Rivers, 188 Ga.App. at 661, 373 S.E.2d 843; Gallaher, 183 Ga.App. at 35(2), 357 S.E.2d 808;Hendrix, 3 Ga.App. at 482–483, 60 S.E. 206. See also Watkins v. Laser/Print–Atlanta, Inc., 183 Ga.App. 172, 173(2), 358 S.E.2d 477 (1987), citing Francis v. Wood, 75 Ga. 648 (1886) (“It is well established that an affidavit before a magistrate, made for the purpose of causing an arrest, will not support an action for libel, though falsely and maliciously made.”). Hence, the trial court committed no error in dismissing Renton’s defamation claim predicated on the allegedly false statements by Watson made in the arrest warrant application and the warrant application hearing.2
Significantly, however, another paragraph of the amended complaint pertaining only to the defamation claim alleges more generally that Watson made her false statements about Renton “to third parties without privilege.” The paragraph is broad and conclusory, but that is not fatal to a plaintiff’s claim at the motion-to-dismiss stage. See Ledford v. Meyer, 249 Ga. 407, 408–409(2), 290 S.E.2d 908 (1982) (noting in defamation case that “conclusions may generally be pleaded under the Civil Practice Act” and that “[u]nder this ‘notice’ theory of pleading[,] it is immaterial whether a pleading states conclusions or facts as long as fair notice is given, and the statement of claim is short and plain”) (citations, punctuation, and emphasis omitted). See also Infinite Energy v. Pardue, 310 Ga.App. 355, 361(3), 713 S.E.2d 456 (2011) (plaintiff’s conclusory allegations regarding malice did not render defamation claim subject to dismissal for failure to state a claim upon which relief could be granted).3 In light of this paragraph, we cannot say that Renton could not possibly introduce evidence within the framework of her amended complaint to support a claim for defamation. It is conceivable that Renton could introduce evidence showing that Watson made false statements to third parties about her having committed forgery— separate and apart from Watson’s statements made in the arrest warrant application and at the hearing on the application—that were not privileged. Accordingly, the trial court erred in dismissing Renton defamation claim to the extent that the amended complaint could be construed as alleging that Watson communicated unprivileged, defamatory statements to third parties outside the context of the warrant application proceedings.
3. Renton next contends that the trial court erred in dismissing her claim for intentional infliction of emotional distress. We disagree [319 Ga.App. 903] and affirm the dismissal of this claim, albeit on a different ground than the trial court.4 See Pollman v. Swan, 314 Ga.App. 5, 5–6, 723 S.E.2d 290 (2011) (“A grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.”) (citations, punctuation, and footnote omitted).
The elements of a cause of action for intentional infliction of emotional distress are: (1) intentional or reckless conduct; (2) that is extreme and outrageous; (3) a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress. Further, liability for this tort has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” (Citations and punctuation omitted.) Ferrell v. Mikula, 295 Ga.App. 326, 333(3), 672 S.E.2d 7 (2008). “Whether a claim rises to the requisite level of outrageousness and egregiousness to sustain a claim for intentional infliction of emotional distress is a question of law.” (Citation and punctuation omitted.) Frank v. Fleet Finance, Inc. of Ga.,238 Ga.App. 316, 318, 518 S.E.2d 717 (1999).
While the amended complaint alleges that Watson submitted an application for an arrest warrant containing false allegations against Renton, the amended complaint and transcript of the warrant application hearing also reflect that Watson voluntarily dismissed the application before a warrant was issued and thus before Renton was arrested. Under these circumstances, we conclude as a matter of law that Watson’s conduct was not so atrocious or utterly intolerable as to rise to the level of intentional infliction of emotional distress, and the trial court committed no error in dismissing the claim. Cf. [319 Ga.App. 904]Amstadter v. Liberty Healthcare Corp., 233 Ga.App. 240, 243(2), 503 S.E.2d 877 (1998) (mere filing of a lawsuit does not rise to the level of outrageousness to support an emotional distress claim).5
4. Lastly, Renton contends that the trial court erred in granting Watson’s request for attorney fees under OCGA § 9–15–14 on the ground that Renton had filed an action that lacked any justiciable issue of law or fact. We agree.
The trial court’s order awarding attorney fees tracks the statutory language of OCGA § 9–15–14(a), which “provides that the trial court shall award reasonable and necessary attorney fees where the offending party’s position lacked any justiciable issue of law or fact so that it could not be reasonably believed that a court would accept it.” (Citation and punctuation omitted.) La Petite Academy v. Prescott, 234 Ga.App. 32, 34(2), 506 S.E.2d 183 (1998).6 We review a trial court’s award of fees made pursuant to OCGA § 9–15–14(a) under an “any evidence” standard. Id. Yet, “to the extent that the ‘evidence’ relevant to the question of attorney fees consists of the state of the law, we make our own assessment of that ‘evidence’ and decide for ourselves whether the claim asserted below presented a justiciable issue of law.” (Citations and punctuation omitted.) Gibson Constr. Co. v. GAA Acquisitions I, 314 Ga.App. 674, 676, 725 S.E.2d 806 (2012).
Guided by these principles, we conclude that the trial court erred in awarding attorney fees to Watson. With respect to the malicious prosecution claim, Renton, in opposing Watson’s motion for attorney fees, attached a superior court order from a different case involving different parties upon which Renton relied in bringing her claim. In that order, a superior court judge in DeKalb County denied the defendant’s motion for summary judgment on the plaintiff’s malicious prosecution claim, where the plaintiff had been ordered to appear before a magistrate judge regarding the defendant’s warrant applications, even though no warrants ultimately had been issued. The superior court referred to the plaintiff as having been “summoned” to appear before the magistrate and construed the case of McNeely, 275 Ga.App. at 482, 621 S.E.2d 473, as authorizing the plaintiff’s malicious prosecution claim, despite the fact that no warrants had issued.
Because another superior court had already accepted the same legal theory advanced by Renton in this case, she could have reasonably believed that a court would accept her malicious prosecution claim. Cf. Executive Excellence v. Martin Bros. Investments, 309 Ga.App. 279, 288–289(3), 710 S.E.2d 169 (2011) (fact that dissenting judges deemed sellers’ slander-to-title claims viable “shows that the sellers could have reasonably believed that a court would accept their claims, there was substantial justification for them, and there is no basis for a finding that the sellers brought the claims for delay or harassment”). Although in Division 1 we rejected Renton’s legal theory and found her reliance on McNeely misplaced, we must keep in mind that OCGA § 9–15–14(a) is intended to discourage the bringing of frivolous claims, not the presentation of questions of first impression about which reasonable minds might disagree or the assertion of novel legal theories that find arguable, albeit limited, support in the existing case law and statutes. Gibson Constr. Co., 314 Ga.App. at 677, 725 S.E.2d 806. See OCGA § 9–15–14(c) (“No attorney or party shall be assessed attorney’s fees as to any claim or defense which the court determines was asserted by said attorney or party in a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority.”). In light of these considerations, we conclude that the trial court erred in awarding attorney fees relating to Renton’s malicious prosecution claim.
We reach the same conclusion as to Renton’s defamation and emotional distress claims. As discussed in Division 2, Renton’s defamation claim should not have been dismissed for failure to state a claim upon which relief could be granted, and thus fees should not have been awarded based on that claim.
With regard to Renton’s claim for intentional infliction of emotional distress, some support for the claim could be gleaned from the cases cited in footnote 5 in Division 3. Although we ultimately concluded in Division 3 that those cases were distinguishable from the present case given that Watson voluntarily dismissed her warrant application and no arrest occurred, we cannot say that Renton’s [319 Ga.App. 906]emotional distress claim was entirely foreclosed by existing precedent or without some arguable support in the case law. See Gibson Constr. Co., 314 Ga.App. at 677,725 S.E.2d 806. It follows that the trial court erred in awarding attorney fees based on Renton’s emotional distress claim, as it did with respect to her malicious prosecution and defamation claims. We therefore reverse the trial court’s award of attorney fees under OCGA § 9–15–14(a).7
Judgment affirmed in part and reversed in part.
McFADDEN and McMILLIAN, JJ., concur.
1. The privilege afforded by OCGA § 51–5–8
is not intended so much for the protection of those engaged in the public service and in the enactment and administration of law, as for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers, and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for the recovery of damages.
2. Relying upon Erfani v. Bishop, 251 Ga.App. 20, 24–25(2)(b), 553 S.E.2d 326 (2001), Renton contends that statements subject to the privilege afforded by OCGA § 51–5–8 should be actionable if the defendant is alleged to have made the statements falsely and with malice. But, as discussed above, our precedent demonstrates that OCGA § 51–5–8 affords statements falling within its parameters an absolute rather than a conditional privilege, and a defamatory statement afforded an absolute privilege is not actionable, “regardless of the falsity of the statements or the speaker’s malicious intent.” (Citation and punctuation omitted.) Wertz, 313 Ga.App. at 206(1), 721 S.E.2d 122. To the extent that Erfani suggests that defamatory statements falling within OCGA § 51–5–8 are actionable if made falsely and with malice, that suggestion is nonbinding dicta because the plaintiff in that case did not allege that the defendant made the statements at issue falsely and with malice, and because the Court concluded that the defamation claim was barred by the applicable statute of limitations. See Erfani, 251 Ga.App. at 24(2)(b), 553 S.E.2d 326.
3. “The proper remedy for [a defendant] seeking more particularity is by motion for a more definite statement” rather than by motion to dismiss for failure to state a claim. Cochran v. McCollum, 233 Ga. 104, 105, 210 S.E.2d 13 (1974). See OCGA § 9–11–12(e). A trial court also has the inherent authority to order a more definite statement even in the absence of a motion filed by the defendant. See Bush v. Bank of New York Mellon, 313 Ga.App. 84, 92, 720 S.E.2d 370 (2011).
4. The trial court dismissed Renton’s emotional distress claim on the ground that the allegedly false statements made by Watson in the arrest warrant application and the hearing were absolutely privileged under OCGA § 51–5–8. But OCGA § 51–5–8 applies only to libel claims. See Morrison v. Morrison, 284 Ga. 112, 113(2), 663 S.E.2d 714 (2008); Kluge v. Renn, 226 Ga.App. 898, 900(2), 487 S.E.2d 391 (1997). Thus, Renton’s emotional distress claim could not be dismissed pursuant to OCGA § 51–5–8. Nevertheless, Watson also argued in the trial court that Renton’s emotional distress claim should be dismissed on the alternative ground that her conduct did not rise to the requisite level of outrageousness.
5. The present case is distinguishable from emotional distress cases where the defendant carried through and procured the plaintiff’s arrest. See Turnage v. Kasper, 307 Ga.App. 172, 175–177, 183–184(1)(c), 704 S.E.2d 842 (2010); Wal–Mart Stores v. Johnson, 249 Ga.App. 84, 87(3), 547 S.E.2d 320 (2001), overruled in part on other grounds, Ferrell, 295 Ga.App. at 333(2), 672 S.E.2d 7;K–Mart Corp. v. Lovett, 241 Ga.App. 26, 27, 29(3), 525 S.E.2d 751 (1999), overruled on other grounds, Golden Peanut Co. v. Bass, 249 Ga.App. 224, 233–234(2), 547 S.E.2d 637 (2001); Fleming v. U–Haul Co. of Ga., 246 Ga.App. 681, 682, 686(5), 541 S.E.2d 75 (2000); Gordon v. Frost, 193 Ga.App. 517, 520–522(1), 388 S.E.2d 362 (1989).
6.OCGA § 9–15–14(a) states in relevant part:
In any civil action in any court of record of this state, reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position….
7. Watson’s motion for sanctions for frivolous appeal under Court of Appeals Rule 15(b) and OCGA § 5–6–6 is hereby denied.
I admit that I get disheartened from time to time, because I have a strong belief in the idea of substance over procedure, and believe in qualitative justice, not quantitative justice.
A small issue on a criminal matter I have become involved with defending very recently has reaffirmed my belief, though. The case involved a confidential informant, and previous counsel in an earlier incarnation of this matter moved to disclose the identity of that confidential informant. This is relevant for a variety of reasons, and since this case involved a “controlled buy” and a search warrant that relied on that informant, in part, their reliability is a valid issue to question and their identity is a little important!
However, in their motion to reveal the informant’s identity, they have cited to a case, Rovario v. United States, 353 U.S. 53 (1957). That case involved the use of a Confidential Informant, also, and required the disclosure of their identity to the defense by the State. However, that case made clear, and subsequent decisions have reiterated the point, that this is a case-by-case, substantive decision. Sometimes it is crucial, and sometimes it is a terrible, pointless thing that just hurts folks.
With that in mind, the case below is one that relies on the fine distinction made by Rovario that so few people seem to adequately understand. This is Colorado v. Nunez, 465 U.S. 324 (1984). I have included it here for an interesting procedural, political aspect of this case, as well. Rather than issue an official decision, much as in the divorce matter I pursued last year before the Georgia Supreme Court, this case was deemed “improvidently granted”. The Court felt that it wouldn’t interfere with the actions of the Colorado Supreme Court if this particular issue was going to dominate the conversation because this was a case-by-case evaluation (and no hard and fast rule would be announced):
On writ of certiorari to the Supreme Court of Colorado.
The writ is dismissed as improvidently granted, it appearing that the judgment of the court below rested on independent and adequate state grounds.
Justice WHITE, with whom THE CHIEF JUSTICE and Justice O’CONNOR join, concurring.
The Court today concludes that the Colorado Supreme Court relied on independent and adequate state grounds when it affirmed the trial court’s decision to suppress a quantity of heroin seized during a search of respondent Nunez’s house following the State’s refusal to disclose the identity of a confidential informant on which the Denver Police Department had relied to establish probable cause for the search. I write not to challenge the Court’s determination that the judgment under review rests on independent and adequate state grounds, but to make clear that neither the Federal Constitution nor any decision of this Court requires the result reached by the Colorado Supreme Court.
Before the commencement of his trial on a charge of possession of a controlled substance, Nunez filed a motion to suppress most of the evidence against him on the ground, among others, that the facially valid warrant authorizing the search of his home was not supported by probable cause. In a companion motion, Nunez sought to facilitate his challenge to the legality of the search and his defense on the merits by obtaining disclosure of the names, addresses, and telephone numbers of all informants who had provided evidence against him. The trial court held a hearing at which Nunez gave testimony at odds with the affidavit supporting the search warrant and his attorney gave contradictory signals concerning whether the conduct of the affiant or the informant was at issue. See App. 31-32, 34, 36, 38-39. The court concluded that Nunez had made a sufficient “initial showing that the informant will provide information essential to the merits of his suppression ruling.” People v. Bueno, 646 P.2d 931, 935-936 (Colo.1982). It also found that Nunez had shown a reasonable basis in fact to believe that the informant was a likely source of relevant and helpful evidence on the question of guilt or innocence. App. 92. When the State refused to comply with its order to disclose the informant’s identity, the trial court suppressed the evidence seized pursuant to the search warrant. App. 93.
The State took an interlocutory appeal to the Colorado Supreme Court, which affirmed the trial court’s judgment solely on the ground that disclosure of the informant’s identity was essential to Nunez’s motion to suppress. People v. Nunez, 658 P.2d 879 (1983). The State argued strenuously that “an accused must question the conduct of the police in constructing the warrant before he may request the court to order the prosecution to reveal the informant’s identity.” App. 107. In its view, “a court, after a proper allegation by the accused that brings the affiant’s credibility into issue, may order disclosure of the informant’s identity,” but “[t]here must be an attack upon the affiant’scredibility before the informant can be disclosed.” Id., at 103 (emphasis in original).
Although the State cited two federal cases recognizing an informant’s privilege, its distinction between situations where the affiant’s credibility is attacked and those where only the informant’s credibility is questioned rested largely on state law. The Colorado Supreme Court responded in kind, concluding that the State’s contention misapprehended its holding in People v. Dailey, 639 P.2d 1068 (1982):
“Dailey recognized that errors in an affidavit for a search warrant can result ‘from the informant’s perjury or reckless disregard for the truth, or from the negligence or good faith mistake of either the officer or the informant.’ 639 P.2d, at 1075. When, following a veracity hearing, the probability of one of these kinds of error has been found, the election of remedies or sanctions is left to the discretion of the district court. The necessary foundation for the court’s exercise of discretion in ordering disclosure is a showing of a reasonable basis in fact to question the accuracy of the informant’s recitals.” 658 P.2d, at 881 (emphasis added).
This holding, I believe, confers on trial courts in Colorado discretion to do far more than the Federal Constitution minimally requires.
“[I]n the exercise of its power to formulate evidentiary rules for federal criminal cases,” this Court “has consistently declined to hold that an informer’s identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search.” McCray v. Illinois, 386 U.S. 300, 312, 87 S.Ct. 1056 1063, 18 L.Ed.2d 62 (1967). See Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). Nothing in the Federal Constitution, we held inMcCray, requires a State “to abolish the informer’s privilege from its law of evidence, and to . . . disclos[e] . . . the informer’s identity in every such preliminary hearing where it appears that the officers made the arrest or search in reliance upon facts supplied by an informer they had reason to trust.” 386 U.S., at 312, 87 S.Ct., at 1063.
We have, to be sure, recently concluded that the Fourth and Fourteenth Amendments entitle a defendant to a veracity hearing if he makes a substantial preliminary showing that an affiant knowingly and intentionally, or with reckless disregard for the truth, included in a warrant affidavit a false statement necessary to the finding of probable cause. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). But in so doing we emphasized that “[t]he deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.” Id., at 171, 98 S.Ct., at 2684. The decision in Franks neither required nor contemplated routine disclosure of informants’ identities, and we took care to avoid deciding or predetermining “the difficult question whether a reviewing court must ever require the revelation of the identity of an informant once a substantial preliminary showing of falsity has been made.” Id., at 170, 98 S.Ct., at 2684.
In People v. Dailey, supra, the state-court decision on which the challenged judgment rests, the Colorado Supreme Court clearly recognized the limits of the rights conferred by the Fourth and Fourteenth Amendments. 639 P.2d, at 1074. It concluded, however, that Franks established only the federal constitutional standard and held that the State Constitution entitles defendants to challenge the informant’s veracity and in appropriate circumstances to have his identity disclosed for that purpose. Although this case would be resolved differently under federal law, see McCray v. Illinois, supra, 386 U.S., at 306-309, 87 S.Ct., at 1060-1061. I agree that the challenged judgment rests solely on state-law grounds and that this Court lacks jurisdiction to review it.
Justice STEVENS, concurring.
In view of the growing public interest in the magnitude of our workload,1 I have on occasion taken note of some of the ways in which the present Court makes use of its resources. Several years ago, I expressed concern about the purely advisory character of individual opinions dissenting from orders denying petitions for certiorari. See Singleton v. Commissioner, 439 U.S. 940, 944-945, 99 S.Ct. 335, 338, 58 L.Ed.2d 335 (1978) (opinion of STEVENS, J.). More recently I have noted that the Court is prone to grant certiorari in cases that do not merit our attention. See Watt v. Alaska, 451 U.S. 259, 273-276, 101 S.Ct. 1673, 1681-1683, 68 L.Ed.2d 80 (1981) (STEVENS, J., concurring); see also Watt v. Western Nuclear, Inc., — U.S. —-, —- – —-,103 S.Ct. 2218 2238, 76 L.Ed.2d 400 (1983) (STEVENS, J., dissenting).2 Last Term, in South Dakota v. Neville, — U.S. —-, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) andMichigan v. Long, — U.S. —-, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), the Court decided to enlarge its power to review state court decisions. I dissented from those novel assertions of appellate jurisdiction in part because I was concerned about the undesirability of the rendition of purely advisory opinions by this Court. SEE ID., AT —- – —-, —- – —-, 103 s.ct., at 3489-3490, 3490-3491 (STEVENS, J., dissenting); see also, id., at —-, 103 S.Ct., at 3483 (BLACKMUN, J., concurring in part in Michigan v. Long ) (noting “an increased danger of advisory opinions in the Court’s new approach”).
Today Justice WHITE “agree[s] that the challenged judgment rests solely on state-law grounds and that this Court lacks jurisdiction to review it.” Ante, at —-. He nevertheless provides us with an advisory opinion, in which THE CHIEF JUSTICE and Justice O’CONNOR join, concerning the merits of the case. We of course have jurisdiction to determine our jurisdiction over this case, but once we agree that we lack jurisdiction, this case no more provides a vehicle for deciding the question upon which three Justices now volunteer an opinion than if the petition for a writ of certiorari had never been filed. I, of course, fully respect their right to their opinions concerning that question, just as I respect other scholars who disagree with the wisdom of the choice made in Hayburn’s Case, 2 Dall. 409, 1 L.Ed. 436 (1792). I merely note that today’s advisory opinion is consistent with the Court’s emerging tendency to enlarge its own involvement in litigation conducted by state courts. This tendency feeds on itself, for it can only encourage litigants—particularly institutional litigants to file even more petitions for certiorari in the hope of obtaining, if not review and reversal, at least an opinion by a number of Supreme Court Justices in support of their position. In light of the increasing flood of certiorari petitions, today’s advisory opinion provides further support for concluding that this situation “will very likely progressively worsen.” 3
- See, e.g., Coleman, The Supreme Court of the United States: Managing its Caseload to Achieve its Constitutional Purposes, 52 Fordham L.Rev. 1 (1983); Note, Of High Designs: A Compendium of Proposals to Reduce the Workload of the Supreme Court, 97 Harv.L.Rev. 307 (1983).
- See generally Stevens, Some Thoughts on Judicial Restraint, 66 Judicature 177, 180 (1982).
3. White, Challenges for the U.S. Supreme Court and the Bar: Contemporary Reflections, 51 Antitrust L.J. 275, 280 (1982).
Though the process of changing my office telephone number in every location where it is listed, as well as notifying each and every Court before whom I have made an appearance in any capacity as well as current and former clients, is long and arduous, Charter/AT&T seems to have won this struggle. I am a strong believer in the idea of pragmatism over principle, and either my telephone was connected improperly or electronic problems prevented the re-activation of my established business telephone number.
For the time being, my business telephone number is 678-696-5376.
This is a shameless (well - vaguely shameless) request for nomination by any readers of this blawg (a “blawg”, for those who don’t know, is the term applied to blogs about the law, approximately) for nomination to the American Bar Association’s annual list of the Blawg 100. I do not fool myself into believing that I am consistent with my posts, but I try to make them helpful to both legal personnel and non-practitioners, alike, and have received some positive feedback the past few years. If you are interested, this blawg can be nominated at the following link:
Thank-you for any consideration, and I hope that my posts have helped you as you try to navigate the difficult and dangerous legal minefields out there!
This does not include the case style or signature lines, and it also does not include the Exhibits used. However, the Martin case discussed in the initial Motion itself is worth noting.
REVISED MOTION TO SUPPRESS UNLAWFULLY-OBTAINED EVIDENCE
COMES NOW XXXXX XXXX XXXXX, by and through undersigned counsel, and hereby makes and files this, his Revised Motion to Suppress Unlawfully-Obtained Evidence which the candid statements of the primary arresting officer shows is not legally admissible against him because the arresting officers were acting on little more than a hunch, making the repeated search of Defendant’s vehicle an unconstitutional “fishing expedition”, and all testimony and information concerning said items should not be heard by the trier of fact. In support thereof, he states the following:
Article I, Section I, Paragraph XIII of the Georgia Constitution of 1983 states in pertinent part that “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated”. This reflects the protection of the Fourth Amendment to the United States Constitution which directs that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (emphasis supplied).
Both state and federal law permit a person to be briefly stopped and detained if there is articulable suspicion to do so, but they have to have a reasonable suspicion. U.S. v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110 (1983); Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Giacini v. State, 281 Ga. App. 426, 636 S.E.2d 145 (2006)(discussing roadblock guidelines). The reasonable, articulable suspicion “that the law has been or is about to be violated is less than probable cause, but greater than mere caprice.” Zeeman v. State, 249 Ga.App. 625, 627, 549 S.E.2d 442 (Ga. Ct. App. 2001). In this case, Officer XXXX XXXXX stated to XXXXX XXXXX and to Defendant himself that he observed the truck Defendant was driving cross over a lane of traffic as it turned onto the Square in XXXXX, Georgia. This conversation is recounted in Exhibit “A”, attached and incorporated herein. THIS was the pretext that somehow justified a complete and repeated search of XXXX XXXXX’ vehicle, inside and out, until eventually an amount of residue and a miniscule amount of marijuana was located under the vehicle by use of a K-9 unit.
In the case at bar, XXXX XXXXX is not charged at all with any matter other than the possession of contraband items, even though the items were allegedly only discovered after an exhaustive search. Officer XXXXX stated to XXXXX XXXXX that he had some kind of extraneous information that XXXX XXXXX was involved in selling drugs, so the officer simply kept searching for a long duration until he finally discovered something illegal. This is what is known as a “hunch”. There were no charges arising from any articulable suspicion, and the search itself was objected to repeatedly by Mr. XXXXX. The search, by itself, is in grievous violation of the legal rights of Defendant, and any and all items allegedly located as a consequence of that search must be immediately suppressed.
On June 15, 2012, the Court of Appeals of Georgia decided Martin v. State, 316 Ga.App. 220 (Ga. Ct. App. 2013), which contained reasoning that is directly applicable to this case. The facts and the evidence showed that the officer observed the two Defendants ‘sluggish movements and slurred speech, having found them in a parking lot in freezing temperatures, asleep in a running truck in the early morning hours. The officer had outside knowledge that one of the Defendants was involved in selling drugs. Rather than accept their explanations for slurred speech and slow movements, or make efforts to determine if they were under the influence of any substance that had been legally-prescribed to them, or apply any less-intrusive method of determining the cause of their presence at that scene, the officer had a K-9 unit inspect the vehicle. The trial court’s decision to deny a motion to suppress and to admit the contraband located by the dog was reversed, because of the remarkably unconstitutional conduct of the officer. “A second-tier, investigatory detention was authorized “ ‘if based on the totality of the circumstances [the officer] had specific and articulable facts which, taken together with rational inferences from those facts, gave [him] a particularized and objective basis for suspecting [[the Defendant]] of criminal activity.’” Martin at 223. There was no constitutional articulable suspicion.
WHEREFORE, Defendant requests the following relief:
(a) For a hearing on the admissibility or exclusion of the evidence seized in the above-styled case against XXXXX XXXX XXXXX;
(b) For the issuance by the Court at the conclusion of that hearing an Order to suppress the evidence discovered unlawfully by law enforcement;
(c) For limiting instructions to the State prior to any trial of the above-styled matter against any and all references to evidence obtained unlawfully; and
(d) For such other and further relief as the Court in its discretion deems fit to grant.
BRIEF IN SUPPORT OF REVISED MOTION TO SUPPRESS UNLAWFULLY-OBTAINED EVIDENCE
COMES NOW XXXXX XXXXX, by and through undersigned counsel, and hereby makes and files this Brief in Support of Revised Motion to Suppress Unlawfully-Obtained Evidence, demand that the Court apply the simple principles of Martin v. State to the case against him and suppress the illegally-obtained evidence uncovered by a law enforcement search of his vehicle on or about August 4, 2013.
Relevant Factual and Procedural History
In the early hours of XXXXX XX, 2013, a XXXXX, Georgia, law enforcement officer stopped a vehicle driven by Defendant XXXXX Clay XXXXX who was headed home after a week spent in XXXXX County, where he worked. At the time, he was driving to his mother’s residence where his ex-girlfriend was staying with their infant son. According to the narrative of the encounter, the reporting officer watched Defendant make a turn from the Square in XXXXX onto XXXXX XXXXX Street, at which time he apparently crossed the center lane slightly. It is important to note that this incident happened at approximately 1:15 AM on a Sunday morning, when the streets were relatively empty, nor were there pedestrians. Based on that failure to specifically maintain a lane through a turn onto an intersecting road, the officer in question apparently began following XXXXX XXXXX. It is also important to note that at no time between that observed “irregularity” and the stop itself did he observe XXXXX XXXXX infringe upon the law at any point. He executed a traffic stop, nonetheless.
When he made contact with XXXXX XXXXX and stated what he had seen, he was given a transmission problem with the vehicle as the reason. Rather than accept the rational explanation given for erratic, but not illegal, driving, the officer decided to go further, at which time the stop proceeded from a simple investigative stop for which a rational basis existed and a rational explanation had been provided into the lands of criminal investigation.
Rather than charging him with any crimes for improper operation of a motor vehicle, and after a sobriety test had been administered and promptly successfully passed, the officer requested consent to conduct a K-9 search of the vehicle. The interior was searched thoroughly and nothing was uncovered, but the officer then located residue from methamphetamine, marijuana, and a set of electronic scales, affixed to the undercarriage of the vehicle. For the apparent crime of failing to keep his vehicle within marked lines while entering an adjoining roadway, XXXXX XXXXX was charged with Possession of Marijuana with Intent to Distribute, Possession of Methamphetamine with Intent to Distribute, and Possession of Drug Paraphernalia.
Officer XXXXX’s observation that XXXXX XXXXX failed to maintain his lane of travel during a turn onto an adjoining roadway nor his knowledge of any criminal drug activities by XXXXX XXXXX provided sufficient articulable suspicion to search his vehicle with a K-9 unit for illegal drugs underneath it.
Argument and Citation to Legal Authority
I. The Traffic Stop of the Vehicle Operated by XXXXX XXXXX Lacked Valid Articulable Suspicion for Further Investigation After an Initial Satisfactory Answer.
There is no question that the presence of law enforcement personnel outside the vehicle operated by XXXXX XXXXX was prompted by observed erratic driving. According to the formal narrative submitted by the officer in question, as XXXXX XXXXX turned onto XXXXX XXXXX Street, he failed to maintain his lane of travel. It was also noted that, during the drive, he was looking at the parking lots along the side of the road, and his vehicle alternately speeded up and slowed down, and moved back and forth at all times keeping within the same lane of travel. Lastly, at an area where previously there had been a crosswalk for pedestrian travel that had since been removed, the driver stopped. However, it is a sizeable stretch to observe someone unintentionally crossing the center lane of traffic while executing a turn, at a time when nobody else is on the road, and charging them with possession of a drug and intent to distribute that drug.
Presumably, the officers involved in this stop and subsequent search were acting under the guidelines of Hayes v. State, 292 Ga. App. 724 (Ga. Ct. App. 2008). According to the result reached in that case, an investigatory stop involving a search of the vehicle is legal as long as it does not “unlawfully prolong the detention”. Id. at 729. In that case, the traffic stop had concluded and the officer had returned the driver’s paperwork and license, and then requested (and obtained) consent to search the vehicle, only locating the contraband after the consensual search. In that case, the officer sought and was given consent to search! The consent was denied in this case, and the officer used that denial of consent as justification to detain Defendant while he proceeded with his unrelated search. A more accurate rule, then, arises from the nuanced findings in the case that originated this rule, Illinois v. Caballes, 543 U.S. 405 (2005), using the statement of the Court that “the state court’s conclusion that the duration of the stop . . . was entirely justified by the traffic offense and the ordinary inquiries incident to such a stop“. Caballes, 543 U.S. at 408 (emphasis supplied).
The search of the vehicle itself, even under the law of Hayes, requires that the officer have some particularized suspicion since the investigation of the traffic irregularity had concluded and consent to search had been denied. The contraband was not in plain sight, no arrest had been made based on the vehicle operation, and the facts show that the dog did not indicate on the first location checked, nor did it indicate on the second location checked, instead hesitantly indicating only after the third location was checked and at the urging of the handler himself.
A. The officer did not have reasonable suspicion to search after he said he did not think XXXXX XXXXX was under the influence of anything making him less safe to drive.
The officer that interacted directly with XXXXX XXXXX had no indications of concealed drugs or of a particularized location where drugs were suspected to be concealed, but instead engaged in a fishing trip for culpability. In fact, after pulling XXXXX XXXXX over and thoroughly testing him for impairment, the officer expressly told him that he did not think he was under the influence of alcohol or drugs to the extent that he was a less safe driver. See Primary Narrative of XXXXX XXXXX, a copy of which is attached hereto and incorporated herein as Exhibit “B”. At that point, the officer had no further probable cause to look for further evidence of criminal activity, because he had ended his traffic investigation and satisfied his curiosity. “The existence of probable cause is determined by, whether, “given all the circumstances …, there is a fair probability that contraband or evidence of a crime will be found in a particular place.”” State v. Gilman, 218 Ga.App. 895, 897, 463 S.E.2d 720 (Ga. Ct. App. 1995)( (Citations and punctuation omitted)(quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983)); Rivera v. State, 247 Ga.App. 713, 714, 545 S.E.2d 105 (Ga. App. 2001)(free air sniff by a drug dog was sufficient probable cause). There was no “particular place” noted by the officer before conducting a search of the vehicle, and the law does not paint in such broad strokes.
Exhibit “B” states that the officer observed Mr. XXXXX travel “from the Square [in XXXXX] onto XXXXX XXXXX St.” at which time the vehicle apparently crossed the center line briefly while turning and corrected. See Exhibit B. Again, the time of the incident is listed on the report as 1:17 AM, and the officer clearly indicates that there is nobody else present except himself, his assisting officer, and Defendant. Other than a burnt-out tag light, XXXXX XXXXX apparently showed absolutely no other indications of unlawful behavior. The officer points out that the vehicle was travelling “back and forth in the lane of travel” but states that the vehicle was not “crossing either line”. There is, therefore, no illegal operation of the vehicle observed. When asked about this driving, Mr. XXXXX explained quite honestly that he was having transmission problems with his vehicle, and the facts bear this explanation out. What’s more, the traffic stop ended at the resolution of its investigation when the officer expressly told XXXXX XXXXX that he did not think he was under the influence of alcohol or drugs to the extent that he was a less safe driver – a point made clear by Hayes v. State because anything further would necessarily unduly prolong the traffic stop. More recently than Hayes, in Heard v. State, 2013 Ga. App. LEXIS 990, 4 (Ga. Ct. App. Nov. 22, 2013), the Court found that the officer’s actions, just like the officer’s actions in this case, had unduly prolonged the traffic stop (even though the stop itself lasted only about ten minutes) to conduct a drug investigation without having a legal basis for doing so.
B. There is no logical connection between unusual, but not illegal, vehicle operation and concealed drugs.
In the case at bar, the arresting officer claimed that he witnessed XXXXX XXXXX cross the center line during a turn, and he observed the vehicle “travelling back and forth in the lane of travel without crossing either line”. See Primary Narrative by XXXXX XXXXX, Case No. XX-XX-XX-XXX. It is true that there can be articulable suspicion for a traffic stop even when the traffic violation is minor, but it is also important to note that there is no crime implicated by this manner of driving. See generally Lee v. State, 188 Ga. App. 406, 373 S.E.2d 28 (Ga. Ct. App. 1988)(running a stop sign sufficient articulable suspicion). The conclusion of the inquiry with a reasonable explanation provided should have ended the encounter, but the officer decided to pursue the encounter, and started a new investigation. The law is clear that even a legitimate traffic stop will require the presence of probable cause to pursue further information – “the detention must be reasonably related in scope to the circumstances which justified the interference in the first place. Generally, an investigative detention must last no longer than is necessary to effectuate the purpose of the stop.” United States v. Beltran-Palafox, 731 F. Supp. 2d 1126, 1145, 2010 U.S. Dist. LEXIS 54541 (D. Kan. 2010). At the point that the officer had sated his curiosity about the manner in which the vehicle had been operated, told XXXXX XXXXX that he did not think he was under the influence of anything to the extent that he was less safe to drive, and been refused consent to search, the brief investigative detention ended and an unlawful detention began, because the purpose of the traffic stop had been fulfilled.
As in the case of State v. Burke, 230 Ga. App. 392 (Ga. Ct. App. 1998), “there were insufficient facts and circumstances within the knowledge of” the officer involved “or of which he had reasonably trustworthy information sufficient to warrant a prudent man in believing that” XXXXX XXXXX had concealed drugs on the vehicle he was driving, based on either the officer’s observations of the vehicle or the officer’s observations of the driver. Burke at 393-394. In the Burke case, the officer involved discovered the defendant with a gash in his leg caused, according to witnesses, while operating a motorcycle. Though sobriety tests were not given, the defendant admitted to consuming two beers. However, the Court found that the valid arrest effected for driving with a suspended license did not give the officer carte blanche to further conduct a DUI test. While it is easy to argue that the case should be narrowly-construed to apply only to arrests under OCGA § 40-6-391 and tests based on suspicion of alcohol consumption, the case analogy should certainly apply to a vehicle search based on unformed suspicion and body language. That situation is plainly analogous, since the entire basis for the officer’s decision to engage in a K-9 search of the vehicle operated by XXXXX XXXXX arises, according to the report itself, from the investigation by the officer of the possible failure to maintain lane offense. It is important to note that he only effected the arrest when he later found drugs on the vehicle.
II. There were no valid grounds to search XXXXX XXXXX’ vehicle longer after the Traffic Stop ended.
An officer may certainly detain motorists for investigation when he observes them driving erratically, based on his suspicion that a legal violation is occurring, as “the behavior giving rise to the reasonable suspicion need not be a violation of the law.” Semich v.State, 234 Ga. App. 89, 91, 506 S.E.2d 216 (Ga. Ct. App. 1998). Further, the seminal case of Hayes v. State in 2008 stated that “even if police have no basis for suspecting that a person detained at a traffic stop is engaged in criminal activity unrelated to the stop, police may lawfully ask questions during the course of the stop about such unrelated activity, so long as the questioning does not prolong the stop beyond the time reasonably required to complete the purpose of the traffic stop” (emphasis supplied). 292 Ga. App. 724, 730, 665 S.E.2d 422 (Ga. Ct. App. 2008).
However, the question then arises in this case as to whether the detention was unnecessarily expanded by the actions of the investigating officer who stopped a motorist having car problems and then decided to go far further than the observed facts indicated and pursue hidden drugs. There is no question that an officer can conduct a search of a vehicle driven by a citizen for drugs incident to arrest or if the contraband is in plain view. However, there is absolutely NO indication that XXXXX XXXXX was formally placed under arrest prior to the search, and every indication that he was illegally detained until an open-air sniff of his vehicle by a K-9 could be conducted; he was not permitted to leave until after the additional search took place.
The officer engaged in permissive behavior up to and including his request for consent to search from Defendant. However, he went further than the law allows. “[I]t is not the nature of the question that offends the Fourth Amendment, it is whether in asking the questions the officer impermissibly detains the individual beyond that necessary to investigate the traffic violation precipitating the stop.” State v. Mauerberger, 270 Ga. App. 794, 795 (608 SE2d 234) (2004). The officer was permitted by Hayes and its progeny to ask for consent to search, even as an afterthought at the conclusion of the investigatory traffic stop, but the denial of consent to search created an entirely new situation that violates that rule.
There were decidedly two different phases of the traffic stop in question – the first being solely the traffic stop itself, which concluded when the officer told XXXXX XXXXX that he did not appear to be under the influence of anything. The second phase began the instant that the investigating officer insisted on performing a search of the vehicle with a K-9 unit after the initial traffic stop had been investigated and concluded, and purposefully kept XXXXX XXXXX at the scene while he conducted the search. Though it is termed a “free air search”, there was nothing “free” about this incident. There was nothing new discovered during that traffic stop that gave the officer any reason to believe that XXXXX XXXXX was concealing illegal substances somewhere on the vehicle he was driving, and the officer was preventing XXXXX XXXXX from continuing with his business and actively keeping his vehicle from leaving. A seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. United States v.Jacobsen, 466 U.S. 109, 124, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984). The interests are enshrined in both the United States and Georgia Constitutions for the protection of citizens against unreasonable government behavior; this certainly qualifies.
The officer noted in his report that “Mr. XXXXX was moving a small amount on a constant basis”, and because he apparently looked around town in places other than directly at the car driven by the police officer and the officer felt that his explanations were inconsistent, was acting nervous. Contrary to the actions taken by the officer, even coupling nervous behavior with inconsistencies isn’t sufficient, either. Migliore v. State, 240 Ga. App. 783, 786, 525 S.E.2d 166 (Ga. Ct. App. 1999); Simmons v. State, 223 Ga. App. 781, 782 (2), 479 S.E.2d 123(Ga. Ct. App. 1996); Berry v. State, 248 Ga. App. 874, 881, 547 S.E.2d 664 (Ga. Ct. App. 2001); Gonzales v. State, 255 Ga. App. 149, 150, 564 S.E.2d 552 (Ga. Ct. App. 2002)(nervousness alone isn’t enough). Indeed, the officer administered those tests and, though he noted a lack of convergence on one, told XXXXX XXXXX he was satisfied. His decision to pursue a further level of investigation without any reasonable cause to do so demonstrates that the evidence seized by law enforcement officers from XXXXX XXXXX must be suppressed in the interests of justice.
Since there were factually two separate investigations, the officer was bound by a higher legal standard for the subsequent search. “The appropriate legal standard for determining whether the additional questioning and the walk-around exceeded the scope of permissible investigation, in the absence of consent, is whether the officers had a reasonable suspicion that [the Defendant] was transporting illegal drugs. See State of Georgia v. Montford, 217 Ga. App. 339, 340-341 (457 S.E.2d 229) (1995). If the officers had no reasonable suspicion that [the Defendant] was transporting drugs, and if [the Defendant] did not consent to the search, then the detention following the conclusion of the traffic stop exceeded the scope of permissible investigation.” Berry, at 881 (referencing Simmons at 782).
Berry may be easily analogized to the case at bar using the similarities between the two cases: “Since the dog search was in no way connected to any problem with the [turn from one road onto an adjoining road], the officer must have had a reasonable suspicion that [XXXXX XXXXX] was transporting drugs.” Id.(referencing Simmons at 782). “[E]ven if Berry were nervous, as if most citizens would not be when stopped by the police, “reasonable suspicion to detain and investigate for illicit drug activity does not arise from nervousness. . . .” Id. (referencing Migliore at 786). Stated more plainly, and directly applicable to this case, “[t]o meet the reasonable suspicion standard, an officer’s investigation during a traffic stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Although this suspicion need not meet the standard of probable cause, it must be more than mere caprice or a hunch or an inclination.” Id. at 882. All that Hayes did was to make it alright for the officer to conduct a K-9 free-air sniff around the vehicle as a part of the same stop. That was clearly not what happened here.
It is well-established that a display of nervousness, without more, is insufficient to authorize a search of a vehicle. See Montero v. State, 245 Ga. App. 181, 184, 537 S.E.2d 429 (Ga. Ct. App. 2000). There was no arrest before discovery of contraband during a vehicle search that arose after the one anomaly in driving by XXXXX XXXXX had been thoroughly investigated and had ended without an arrest. Therefore, the search of the vehicle in fact further extended the detention without consent and without being either a search incident to arrest or a search conducted pursuant to Hayes. The contraband located must lawfully be suppressed under the governing legal standards.
This case is one to crow about, because it is a strike in favor of the rights of the individual to be free from unlawful harassment by law enforcement such as is known in principle but rarely seems to be applied in fact.
This case goes into detail about the different tiers of a police-citizen encounter. Specifically, it talks about the transition between a “First-Tier Encounter” (the most minimally-intrusive kind of police-citizen encounter, such as one generally has with anybody that one encounters) into a “Second-Tier Encounter” (which is the point when an otherwise consensual encounter becomes a seizure, in which the person is no longer free to leave; this kind of encounter must be supported by something known as “articulable suspicion”, but that suspicion cannot be based on a mere hunch).
Below are a few examples of the broad, sweeping statements of law this case – good law, all around, it appears – embodies:
“A second-tier, investigatory detention was authorized “ ‘if based on the totality of the circumstances [the officer] had specific and articulable facts which, taken together with rational inferences from those facts, gave [him] a particularized and objective basis for suspecting [Martin] of criminal activity.’”
“Applying the proper legal principles to this case, and considering the totality of the circumstances, we conclude that when the officers detained Martin after they knew that he had permission to be sleeping in his truck in the funeral home parking lot, they did not have an articulable suspicion, i.e., an “objective manifestation,” that Martin was or was about to be engaged in criminal activity.”
That last clause is the most important in this case – the officer did not have an articulable suspicion that [the Defendant] was or was about to be engaged in criminal activity“.
“Yarbrough did not see or smell any illegal substances; he did not question Martin regarding his appearance or demeanor; he did not determine whether Martin had taken prescription or over the counter medication that may cause drowsiness; he did not determine if Martin had consumed alcohol; he did not describe Martin’s appearance or demeanor as being specifically indicative of intoxication by an illegal substance, as opposed to a legal substance; and he did not perform any field tests to determine if Martin was under the influence of anything. ”
Take a look at the amazing statement of legal principles in defense of the rights of individuals that is Martin v. State, 316 Ga.App. 220 (Ga. Ct. App. 2012):
“Lisamarie Nellyn Bristol, for Martin.
Layla Hinton Zon, Walter Cliff Howard, Marie Elizabeth Greene, for The State.
James W. Martin, Jr. appeals the trial court’s order denying his motion to suppress evidence seized from his truck. For the following reasons, we reverse.
The proper standard of review was recently reiterated by the Supreme Court:
(W)hen a motion to suppress is heard by the trial judge, that judge sits as the trier of facts…. (T)he trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous…. (T)he reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. [Cit.] However, as a reviewing court, “(we) owe no deference to the trial court’s conclusions of law. Instead, we are free to apply anew the legal principles to the facts.” [Cit.]
The record, including a videotape of the incident, shows that at approximately 2:20 a.m. on January 4, 2010, Walton County Sheriff’s Deputy Yarbrough spotted Martin’s truck parked behind a closed funeral home with the engine running and the passenger door one-quarter open. The deputy decided to investigate, and after parking his patrol car and approaching on foot, he saw two people inside the truck. Yarbrough was initially concerned for the occupants’ welfare—it was 19 degrees outside and neither person appeared to be breathing—and he thought for a moment that Martin was dead. In fact, the occupants were asleep, and Martin woke up when Yarbrough tapped on the window. Martin then woke up the woman in the driver’s seat. Yarbrough testified that Martin and the woman appeared lethargic and sluggish, their speech was slurred, their eyes were glassed over, and they were not able to answer questions as quickly as the deputy would have expected a person to be able to do.
Yarbrough confirmed the occupants’ identities and asked what they were doing parked behind the funeral home. Martin and the woman said that they had no place to stay, that they got tired, and they were there to take a nap. Martin said that he lived in the truck, and he explained that the owner of the funeral home had given him permission to park there and rest. The deputy realized that he knew Martin had a pending charge of drug possession; he also had information “from another source” that Martin was possibly selling methamphetamine in another area of Walton County. But the dispatch center reported that a computer check revealed no outstanding warrants for Martin, and his license “came back clean” at about four minutes and fifteen seconds into the stop. Yet Yarbrough called for a second deputy, And at about six to eight minutes into the stop, Deputy Stowe arrived.
Yarbrough then asked Martin and the woman if there were any narcotics in the vehicle. He explained:
I asked them if there was anything illegal in the vehicle because I had concerns that, just based off their manifestations of how they were acting and that they were real, real sluggish, slow to respond, and I had asked them if there was anything illegal in the vehicle because I had a feeling that there was possibly, they were either using narcotics or that maybe there was narcotics in the vehicle. [And] [b]ased off my prior knowledge of Mr. Martin and having the one possession charge and also the information I’d been receiving.
(Emphasis supplied.) The couple denied having any narcotics in the truck. At a little over eight minutes into the stop Yarbrough then [316 Ga.App. 222]asked for permission to search; Martin replied that without a warrant he did not want the officer to search his truck. After the refusal, about 11 minutes into the stop, Yarbrough inquired as to whether a K–9 unit was available. Three or so minutes later, the officer said that although he could not smell anything in the vehicle, “If it’s anything, he’s going to have meth in the vehicle.” He testified, “ I had a feeling that there was something going on other than just the fact that they were sleeping there.” (Emphasis supplied.) He testified that although the couple had just woken up and their demeanor could be consistent with someone who had just been in a deep sleep, Martin’s demeanor never really changed during the encounter; he continued to be slow to answer questions, and his speech was “ slurred a little bit.”
At about 2:33 a.m.,1 Yarbrough asked the dispatch officer to contact the owner of the funeral home to confirm whether he had given Martin permission to park there, and at about 2:38 a.m., dispatch reported back that it left a message for the owner. During this latter exchange, Yarbrough formally requested that a K–9 officer be called. Four minutes later (about 2:43 a.m.), dispatch reported to Yarbrough that the owner called and confirmed that Martin had permission to sleep there. Yarbrough testified that at this point, however, Martin was not free to leave because he was continuing to investigate the possibility of the presence of narcotics.
At about 2:44 a.m., the officer reported over the radio that “he wanted it noted that it was obvious that [Martin] was under the influence of something.” Yarbrough confirmed during his testimony that he first commented that Martin appeared to be on drugs after dispatch confirmed that Martin had permission to be parked behind the funeral home. At about the same time, a K–9 officer left for the scene, and Yarbrough was told that the K–9 officer was expected to arrive in about 20 minutes. Martin went back to sleep in his truck briefly while everyone was waiting on the K–9 officer to arrive. The K–9 officer arrived between 25 and 28 minutes later, or almost 53 minutes into the encounter. The K–9 officer indicated that the dog alerted, and a subsequent search of the vehicle revealed suspected methamphetamine residue. Martin was arrested and placed in custody at 3:26 a.m.2
1. The trial court found that the event began as a first tier encounter but that by the time the deputy had called for the K–9 [316 Ga.App. 223]officer to be dispatched, the defendant was no longer free to leave, and therefore a second tier encounter was underway. The court found that by that time, Yarbrough had a reasonable and particularized suspicion that Martin and the driver were under the influence of some drug for these reasons: Yarbrough had discovered them asleep at 2:20 a.m. in a deserted parking lot of a funeral home; it was well below freezing; one door was open; Martin and the driver “were notably sluggish, their speech was slurred; they had difficulty answering questions as quickly as a non-intoxicated person in the same situation …”; and Yarbrough had knowledge of Martin’s criminal history and reputation as a drug dealer and user. The court added,
Therefore, regardless of the point at which the encounter shifted from a first tier to a second tier encounter, after the deputy had spoken with [Martin] and the driver and obtained their identification, he had reasonable suspicion that they were under the influence of drugs and might still be in possession of drugs.
The record supports the court’s finding that the second tier encounter began when Yarbrough formally called for a K–9 unit at 2:38 a.m., which was about 18 minutes into the stop; Yarbrough essentially testified to as much. See generally In the Interest of D.H., 285 Ga. 51, 53(2), 673 S.E.2d 191 (2009) (re: three types of police-citizen encounters). But even construing the evidence most favorably to upholding the trial court’s decision, we disagree with the legal conclusion that “after the deputy had spoken with [Martin] and the driver and obtained their identification,” or by 2:38 a.m., Yarbrough had a reasonable suspicion that Martin was in possession of illegal drugs.
A second-tier, investigatory detention was authorized “ ‘if based on the totality of the circumstances [the officer] had specific and articulable facts which, taken together with rational inferences from those facts, gave [him] a particularized and objective basis for suspecting [Martin] of criminal activity.’ [Cit.]” State v. Hopper, 293 Ga.App. 220, 222, 666 S.E.2d 735 (2008). See also Jones v. State, 291 Ga. 35(2), 727 S.E.2d 456 (2012). By 18 minutes into the encounter, Yarbrough knew the following information: (1) Martin and his companion were dead asleep in a running truck with one door ajar at 2:20 a.m. on a very cold night in a funeral home parking lot; (2) the couple claimed that they had no other place to stay and that they had permission of the owner to park and sleep there; (3) when they woke up and thereafter, the couple appeared lethargic and sluggish and they had slurred speech, were groggy, glassy-eyed, and slow to respond; and (4) Martin had a pending charge of possession and there was hearsay regarding Martin possibly selling methamphetamine at some other location. Yarbrough also knew that a computer check of Martin’s and his companion’s licenses and registration were in order; he had not smelled any odors or seen any substances inside or outside of the truck suggesting illegal activity; Martin was not in the driver’s seat; and Martin denied consent to search the truck. Within four more minutes, Yarbrough also knew that Martin had permission from the owner of the funeral home to park and sleep on the premises.3
Applying the proper legal principles to this case, and considering the totality of the circumstances, we conclude that when the officers detained Martin after they knew that he had permission to be sleeping in his truck in the funeral home parking lot, they did not have an articulable suspicion, i.e., an “objective manifestation,” that Martin was or was about to be engaged in criminal activity. See State v. Dixson, 280 Ga.App. 260, 261, 633 S.E.2d 636 (2006). Once the unusual circumstances were clarified, and setting aside his prior knowledge of Martin, all Yarbrough had was Martin’s and his companion’s appearance and demeanor, which, Yarbrough admitted, could be consistent with someone being woken up from a deep sleep. Although this demeanor led Yarbrough to conclude that Martin might be on something, he twice characterized his conclusion as “a feeling.” But “[t]o stop a citizen, the officer must possess more than a subjective, unparticularized suspicion or hunch.” Black v. State, 281 Ga.App. 40, 43(1), 635 S.E.2d 568 (2006).
Yarbrough did not see or smell any illegal substances; he did not question Martin regarding his appearance or demeanor; he did not determine whether Martin had taken prescription or over the counter medication that may cause drowsiness; he did not determine if Martin had consumed alcohol; he did not describe Martin’s appearance or demeanor as being specifically indicative of intoxication by an illegal substance, as opposed to a legal substance; and he did not perform any field tests to determine if Martin was under the influence of anything. Cf. Bell v. State, 295 Ga.App. 607, 609–610(2), 672 S.E.2d 675 (2009) (this Court discounted an officer’s observation that the defendant, who had been driving, appeared to be “under the influence of some type of drug” given that the officer never intended to charge him with DUI and performed no field sobriety tests). Thus, despite the court’s conclusion that Yarbrough had a particularized suspicion that Martin was under the influence of “some drug,” [316 Ga.App. 225]Yarbrough simply did not have “a particularized and objective basis for suspecting [Martin] of criminal activity.” Dixson, 280 Ga.App. at 261, 633 S.E.2d 636.
Yarbrough also had some prior knowledge of Martin—he knew that Martin was accused of possessing drugs in a separate incident and he had heard that Martin might have been involved with illegal drug sales. An officer’s knowledge of a suspect’s prior similar criminal behavior is relevant to a consideration of probable cause. See, e.g.,Hinton v. State, 280 Ga. 811, 820(8), 631 S.E.2d 365 (2006) (evidence of defendant’s prior conviction of kidnapping and indecent liberties was relevant for determining probable cause to search in new allegations that defendant committed kidnapping and murder). And the United States Supreme Court has held that an officer’s knowledge of prior arrests for similar conduct may be relevant to a determination of probable cause related to a new incident, even though the same evidence would not be admissible at trial. Brinegar v. United States, 338 U.S. 160, 172(II), 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). See also Caffo v. State, 247 Ga. 751, 755(2)(c), 279 S.E.2d 678 (1981) (suspect’s past criminal conduct can be used to support probable cause to issue a search warrant).
But in these cases, a similarity was established between the prior conduct and the current circumstances that provided support for the articulable suspicion of a new crime. In Brinegar, evidence that the investigating officer had arrested the defendant for illegal transportation of liquor several months earlier was part of the facts and circumstances that the officer could consider when assessing probable cause to search the defendant in a new incident of suspected illegal transportation of contraband. Id. But the officer knew additional information about Brinegar before the stop, including that he had seen Brinegar loading liquor into a vehicle on other occasions over the course of six months prior to the search and that he recognized the car as one Brinegar had used during that time. This information gave the officer “positive and convincing evidence that Brinegar was engaged in [illegal transportation of liquor]” at the time of the search and information that linked the officer’s knowledge of Brinegar’s earlier arrest to this incident. Id. at 170, 69 S.Ct. 1302.
In Hinton, evidence that the defendant had a “history of assaults on females, including the fact that he had previously abducted a victim and secreted her in his home” was considered as part of the support for a finding of probable cause to search the defendant’s home and car in a new incident involving the abduction and murder of a young woman. Hinton, 280 Ga. at 820(8), 631 S.E.2d 365. But that information was combined with other information placing the defendant in close proximity with the victim, as well as two telephone calls about the [316 Ga.App. 226]victim by a person fitting the defendant’s description. Id. See also Caffo, 247 Ga. at 754(2), 279 S.E.2d 678(b) (in addition to defendant’s prior criminal record, officers had information showing defendant saw victim on night of the crime near where victim’s vehicle was found and that defendant had items in his car similar to one found on the victim’s body).
Here, there is no evidence that Martin had ever used drugs before and therefore no evidence of use of a particular drug. And although he had been arrested for possession of illegal drugs, we conclude that a past arrest for possession, without more is simply not enough to provide reasonable articulable suspicion that the person is currently in possession. To hold otherwise would justify the authorities to conduct a second tier detention, including a dog-sniff test, of any person previously arrested for possession. Finally, although Yarbrough was aware of hearsay information that Martin had been selling methamphetamine, without any information about the reliability of the source of that information, it cannot be considered.4
We conclude that in this case, the officer simply did not have sufficient information as a matter of law to establish reasonable suspicion that Martin was engaged in or about to be engaged in a violation of the law. Accordingly, the trial court erred by denying the motion to suppress, and we reverse that decision. See Bell, 295 Ga.App. at 612, 672 S.E.2d 675.
BARNES, P.J., and McFADDEN, J., concur.
1. The trial court found that this occurred at 2:38 a.m., about 19 minutes into the encounter. But the video shows that the request was made at an elapsed time of approximately 13 minutes into the encounter.
2. Other than as noted in footnote 1, the trial court’s findings of fact are almost totally in accord with this recitation of the evidence.
3. There is no testimony that Martin fell asleep within the first 18 minutes of the encounter. In fact, Yarbrough testified that this occurred while everyone waited on the K–9 officer to arrive.
4. “[H]earsay is admissible in determining the existence of probable cause,” Banks v. State, 277 Ga. 543, 544(1), 592 S.E.2d 668 (2004), but without sufficient indicia of reliability, anonymous information does not provide reasonable suspicion of criminal activity. Florida v. J.L., 529 U.S. 266, 270(II), 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). See, e.g., State v. Dukes, 279 Ga.App. 247, 250, 630 S.E.2d 847 (2006) (“record is devoid of any evidence about the details of the report of drug activity received by the patrol officer”). Similarly, in this case, no basis for crediting the hearsay was offered.”
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