Following a bench trial upon facts adduced at its motion to suppress hearing stipulated by the parties, the State Court of Cobb County convicted Steven Edward Fisher of a single count of having a blood alcohol level of .08 or greater within three hours of driving OCGA § 40-6-391 a 5.1 He was sentenced to twelve months confinement to serve one day, the remainder probated, and a $500 fine. Fisher appeals, contending that the state court erred in denying his motion to suppress, the police having stopped his vehicle upon information which, as false, was insufficient to show that a reasonable and articulable suspicion existed warranting the stop. See Terry v. Ohio , 392 U.S. 1, 26-27 88 SC 1868, 20 LEd 2d 889 1968 person may be lawfully seized for purposes of a brief investigation when only a reasonable and articulable suspicion exists. We disagree and affirm. Viewed in the light most favorable to the state court’s finding as to the suppression motion, the evidence shows that at approximately 7:00 p.m. on March 24, 2002, Sergeant Stanley Wheeler and Officer Robbie Ray were dispatched separately by police radio to the Kennesaw residence of Fisher’s former spouse, Deneice Smith. Fisher had gone to the residence to pick up his son from weekend court-ordered visitation. The dispatcher advised Wheeler and Ray that Smith had called 911 and reported him at her residence in violation of a temporary protective order and driving on a suspended license.2 As Wheeler and Ray proceeded to Smith’s residence, further radio traffic ensued. The dispatcher advised Wheeler and Ray that Fisher had left the residence, gave them a physical description of Fisher, and a description of his vehicle and the tag number. Seeing a vehicle and driver fitting the descriptions he had been given en route to Smith’s residence, Sergeant Wheeler activated his blue lights and stopped Fisher’s vehicle. Officer Ray arrived on the scene as this occurred and shortly thereafter detected signs that Fisher had been driving under the influence. On this, Officer Ray called the Sheriff’s office and learned that no temporary protective ordered had been entered against Fisher and that he was driving on a valid driver’s license. Fisher was arrested after he failed the field sobriety tests administered at the scene, and an Intoxilizer 5000 later measured his blood alcohol content at 0.118. Held :
There is no merit to Fisher’s claim that the police radio dispatches upon which he was stopped were insufficient to establish that a reasonable and articulable suspicion existed for doing so. Obviously, that which may constitute a false report of crime under OCGA § 16-10-263 and that which constitutes a reasonable, articulable suspicion warranting a stop are wholly independent issues of law. This situation is one of the rare situations in which hearsay was properly used to explain Wheeler’s conduct. The issue before the court was not whether Fisher was actually intoxicated and driving erratically, but whether Sergeant Wheeler had a reasonable and articulable suspicion of . . . conduct . . . justifying his investigation of Fisher. In forming his suspicion, Sergeant Wheeler was entitled to rely on the information given him by a fellow officer. The information provided him by the dispatcher was thus admissible to explain Sergeant Wheeler’s reason for investigating Fisher. Citations and punctuation omitted. Morrow v. State , 257 Ga. App. 707, 708 2 572 SE2d 58 2002; accord State v. Harris , 236 Ga. App. 525, 525-526 1 513 SE2d 1 1999 information received from another officer can create articulable suspicion justifying vehicle stop; officer’s action upon good faith belief that a crime has been committed not vitiated by later determination to the contrary.
