                                FIRST DIVISION
                                 DOYLE, C. J.,
                             ANDREWS and RAY, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                   February 17, 2017




In the Court of Appeals of Georgia
 A16A1813. THE STATE v. MARTINEZ-ARVEALO.                                     DO-060 C

      DOYLE, Chief Judge.

      Gerardo Martinez-Arvealo was charged with driving without a license1 after

a traffic stop precipitated by an officer’s check of the vehicle’s license plate.

Martinez-Arvealo filed a motion to suppress, arguing that the officer had no

reasonable articulable suspicion to stop him despite the fact that the officer’s license

plate check returned information that the owner of the vehicle, who was not the same

gender as Martinez-Arvealo, was not a licensed driver. The trial court granted the

motion to suppress, and the State appeals this order. For the reasons that follow, we

affirm.




      1
          OCGA § 40-5-29.
             When reviewing a trial court’s ruling on a motion to suppress, an
      appellate court must construe the evidentiary record in the light most
      favorable to the factual findings and judgment of the trial court. This
      means that the reviewing court generally must accept the trial court’s
      findings as to disputed facts unless they are clearly erroneous . . . .
      Viewed in this way, the evidence at the suppression hearing . . . shows
      the following.2


      Officer Tabitha Denson was parked beside a four-way stop at approximately

10:30 p.m. one evening when a vehicle driven by Martinez-Arvealo came to the stop.

The officer explained that she often parked her patrol car in a church lot beside the

four-way stop to run license plates. The officer ran the license plate number in her

cruiser’s computer, and it returned as being registered to an unlicensed owner, Laura

Patricia Guadarrama Martinez. The officer explained that the computer system returns

information on the owner, including name, which she testified was “clearly” a female

name in this instance. Officer Denson testified that “[m]ost times we don’t go that far

[to look at the owner’s name or gender.]” She initially testified “that the information

[about the driver’s gender] would have been on the computer, but [she] [couldn’t] say




      2
       (Citation and punctuation omitted.) State v. Allen, 298 Ga. 1, 2 (1) (a) (779
SE2d 248) (2015), quoting Hughes v. State, 296 Ga. 744, 746 (770 SE2d 636) (2015).

                                          2
that at this time [whether she] knew . . . if [she] looked at the identity, like the gender,

of who was actually driving.”

       Although there is a light at the four-way stop, Officer Denson testified that at

that time of night “you can’t see the driver of a vehicle clearly.” She followed the

vehicle after it left the stop, and after the results of the license plate scan came back,

she pulled the vehicle over. The officer approached the vehicle, which was occupied

by a male driver, later learned to be Martinez-Arvealo, and he presented an

international identification card but could not show that he was licensed to drive in

the state.

       In its order, the trial court found that although the officer was presented with

the gender of the unlicensed owner associated with the license plate search, the

officer did not attempt to ascertain the driver’s gender prior to proceeding to stop the

vehicle even though there was some lighting in the area. Because of these failures, the

trial court found that the officer lacked a reasonable articulable suspicion for

continuing the stop based on the results of the license plate search revealing an

unlicensed owner of the vehicle.

       The State appeals, arguing that the trial court erred by granting the motion to

suppress because an officer does not have a duty to corroborate the gender of the

                                             3
driver with the gender of the owner prior to effectuating a traffic stop based on a

report of prior violation of the law connected to that owner.

      As an initial matter, we note that the word “duty” is found in the trial court’s

summary of the defendant’s argument and is not a term used by the trial court in

announcing its opinion. Instead, the trial court’s analysis is conducted under the

reasonable articulable suspicion standard.

              [A] brief investigative stop of a vehicle is justified “when an
      officer has a reasonable and articulable suspicion that the driver or
      vehicle is subject to seizure for violation of the law.” In this regard, we
      have held that reasonable and articulable suspicion must be “an
      objective manifestation that the person stopped is, or is about to be,
      engaged in criminal activity, and that this determination can only be
      made after considering the totality of the circumstances.” And in
      viewing the totality of the circumstances, the officer must be able to
      point to “specific and articulable facts which, taken together with
      rational inferences from those facts, provide a particularized and
      objective basis for suspecting the particular person stopped of criminal
      activity.”3




      3
          (Footnotes omitted.) Lewis v. State, 323 Ga. App. 709, 711 (747 SE2d 867)
(2013).

                                          4
      In support of its argument, the State cites to this Court’s opinions in

Hernandez-Lopez v. State4 and Humphreys v. State.5 In Humphreys, the suppression

hearing showed that the officer checked a vehicle license plate and discovered that

the owner of the vehicle “was male and had a suspended driver’s license.”6 In that

case, prior to effectuating a stop of the vehicle, the officer observed that the driver

was male.7 This Court reasoned that the stop was authorized because the officer had

a “particularized and objective basis for the initial stop [based on the] information

from [Georgia Crime Information Center] — in this case, that the male owner of the

registered vehicle Humphreys operated had a suspended driver’s license.”8

      In Hernandez-Lopez, this Court addressed the issue of whether an officer

lacked a reasonable articulable suspicion to support a stop of a vehicle based on an


      4
          319 Ga. App. 662 (738 SE2d 116) (2013).
      5
         304 Ga. App. 365 (696 SE2d 400) (2010). This Court did not address “the
issue of whether officers are authorized to use the Georgia Crime Information Center
computers for random checks of the status of vehicles or drivers who are otherwise
lawfully driving on the roadway because that issue was not raised below.” Id. at 366,
n.1.
      6
          304 Ga. App. at 365.
      7
          See id.
      8
          Id. at 367.

                                          5
alert from the officer’s on-board license plate reader, which notified the officer that

the vehicle was linked to an individual with an outstanding warrant.9 The facts in that

case showed that the officer received a wanted-person alert for a male driving a

specific vehicle, and the officer confirmed prior to conducting the stop that the driver

was “an adult male.”10

      Neither of those cases, however, address a situation in which the officer had

or easily could have had knowledge of the discrepancy between the gender of the

unlicenced owner as shown in the license plate search and the observed driver of the

vehicle.

      Here, the trial court found that the officer lacked a reasonable articulable

suspicion for making the stop because she completely failed to note the unlicensed

owner’s name and gender as listed in the license plate search report, and she made no

attempt to observe the driver’s gender prior to the stop, even though, as the court

specifically noted in its order, there was a light at the intersection. Based on the

evidence presented at the hearing on the motion to suppress, there is no clear error in

the trial court’s findings.

      9
          See Hernandez-Lopez, 319 Ga. App. at 662.
      10
           See id. at 662.

                                           6
               [W]hen deciding whether to grant or deny a motion to suppress,
      a trial court sits as the trier of fact, and its findings are akin to a jury
      verdict and will not be disturbed unless no evidence exists to support
      them. Accordingly, we cannot, and will not, usurp the authority of the
      trial judge to consider such factors as demeanor and other
      credibility-related evidence in reaching its decision.11


      It is clear from the language used in the order that the trial court found the

officer’s testimony questionable. And while the trial court could have accepted the

officer’s testimony that she was wholly unable to observe the driver’s gender prior

to the stop, and based on such credited testimony, the trial court could have

determined that the officer had reasonable articulable suspicion to effectuate the stop,

the trial court was not required to do so.




      11
           (Footnotes and punctuation omitted.) Id. at 663.

                                             7
      Accordingly, based on our standard of review, and the current law of this

State,12 we discern no error in the trial court’s grant of Martinez-Arvealo’s motion to

suppress.

      Judgment affirmed. Andrews and Ray, JJ., concur.




      12
         Compare with People v. Cummings, __ Ill. __ (46 NE3d 248) (2016) (on
remand from the United States Supreme Court after its decision in Rodriguez v.
United States, 575 U. S. ___ , ___ (135 SCt 1609) (191 LE2d 492) (2015), holding
that an officer can ask for a driver’s identification because initial stop based on a
license plate search returning a female unlicensed owner was valid and officer could
not discover until approaching the stopped vehicle that the driver was male). See also
State v. Candelaria, 149 N. M. 125, 129 (A) (245 P3d 69) (2011) (collecting cases
showing that a majority of jurisdictions presume that the owner of the vehicle is
operating the vehicle “absent additional facts suggesting otherwise,” and therefore
return of a license plate check showing the owner is unlicensed or has an outstanding
warrant constitutes reasonable articulable suspicion under normal circumstances).

                                          8
