                               SECOND DIVISION
                                ANDREWS, P. J.,
                            MILLER and BRANCH, 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/


                                                                      June 10, 2015




In the Court of Appeals of Georgia
 A15A0620. THE STATE v. LUCAS.

      BRANCH, Judge.

      The State appeals the trial court’s grant of a motion to suppress evidence seized

in a search incident to arrest. For the reasons stated below, we reverse.

      The record shows that officers stopped Datavious Demon Lucas for speeding,

learned that Lucas had an outstanding warrant for his arrest, arrested Lucas, and

discovered contraband during the search incident to arrest. Lucas was charged with

possession of a controlled substance (Alprazolam), possession of less than an ounce

of marijuana, and speeding. Lucas moved to suppress the evidence obtained in the

search, the trial court granted the motion, and the State appeals that decision. In the

trial court, Lucas did not challenge the validity of the stop or that a search is
authorized incident to an arrest.1 Rather, he argued that his arrest was illegal because

it was based on an invalid arrest warrant, which was allegedly issued for his paternal

twin brother Datravious Deon Lucas, and that the State never produced any warrant

for the defendant during discovery or at the hearing on the motion to suppress.

      When a defendant moves to suppress evidence, “the burden of proving that the

search and seizure were lawful shall be on the state.” OCGA § 17-5-30 (b). When the

appellate courts review a trial court’s decision on a motion to suppress evidence, “the

trial court’s findings on disputed facts will be upheld unless clearly erroneous, and

its application of the law to undisputed facts is subject to de novo review.” Barrett

v. State, 289 Ga. 197, 200 (1) (709 SE2d 816) (2011) (citation omitted).

      Here, in its order granting the motion to suppress, the trial court found the

following facts:

      On July 3, 2013, City of Lilburn Police Officer Cody Belcher. . .
      observed Officer Bowles stop a vehicle for speeding inside the city
      limits of Lilburn; Defendant was the driver. Officer Bowles asked
      Defendant for his driver’s license, but he was unable to produce it.
      Instead, Defendant gave the officer his name and date of birth. Officer


      1
        “When a lawful arrest is effected a peace officer may reasonably search the
person arrested and the area within the person’s immediate presence” for certain
specified purposes. OCGA § 17-5-1 (a).

                                           2
      Bowles ran the information on [the Georgia Crime Information Center
      (GCIC)] and learned that Defendant had an outstanding warrant for his
      arrest. Defendant stated that the warrant was actually for his twin
      brother. Officer Bowles then called Gwinnett County Probation to verify
      the information, and a probation officer advised that Defendant had a
      tattoo of a pit bull on his right shoulder. Upon seeing the confirmatory
      tattoo on Defendant’s shoulder, the officer placed Defendant in
      handcuffs and told him to stand by the car.


      A police unit later arrived with a rapid identification [device], which
      takes an image of a person’s fingerprint and determines whether the
      person has any outstanding warrants. Upon scanning Defendant’s
      fingers, the test confirmed an outstanding warrant for the name
      Defendant provided and produced a photograph of Defendant, which
      matched Defendant’s appearance. Consequently, the officers arrested
      Defendant, and a search incident to his arrest revealed the subject
      contraband.


The court also noted that the State did not produce an arrest warrant for Lucas either

in discovery or in response to the motion to suppress.

      Based on these factual findings, the trial court concluded as a matter of law that

“the State’s failure to produce the arrest warrant during the motion to suppress

hearing is a fatal defect.” The court therefore concluded that the State had failed to

sustain its burden of proving the lawfulness of the arrest that led to the discovery of


                                          3
contraband. The court added that “[t]he fact that the officer may have acted properly

at the time of the arrest does not obviate the State’s burden of producing sufficient

evidence to prove the very existence of the arrest warrant.”

      1. The State argues that the trial court erred because Lucas’s motion to suppress

was not timely filed. But the State did not raise this argument below and it therefore

is waived. See Bowden v. State, 304 Ga. App. 896, 899, n. 1 (698 SE2d 372) (2010)

(arguments not raised by the State in the trial court will not be considered for the first

time on appeal); State v. Evans, 187 Ga. App. 649, 651 (2) (371 SE2d 432) (1988),

overruled on other grounds, State v. Smith, 268 Ga. 75 (485 SE2d 491) (1997).

      2. The State does not contend that the trial court clearly erred regarding the

findings of fact. And our review of the testimony at the hearing on the motion to

suppress shows that the trial court’s findings were not clearly erroneous.

      3. The next question is whether the officers were authorized to arrest Lucas and

therefore authorized to search him incident to his arrest.

      As the trial court noted, no evidence was presented to show that Lucas was

arrested pursuant to a warrant; thus, his arrest and subsequent search were not

authorized by a valid arrest warrant. Harvey v. State, 266 Ga. 671, 672 (469 SE2d

176) (1996) (because bench warrant had been recalled before suspect was arrested,

                                            4
suspect was not lawfully arrested pursuant to the bench warrant itself). “However, the

validity of an arrest is not necessarily dependent upon the existence of a valid arrest

warrant because if the person detained is outside of his home and probable cause to

arrest exists at the time of detention, a warrant is not required.” Id. (citation omitted).

Our Supreme Court has held that probable cause to arrest arises once an arresting

officer learns of the existence of an arrest warrant and that “[w]hether or not the

information about the warrant later prove[s] incorrect or invalid is immaterial.”

Buchanan v. State, 259 Ga. App. 272, 274 (576 SE2d 556) (2002), citing Harvey, 266

Ga. at 672-673. In Harvey, the Supreme Court upheld an arrest even though a bench

warrant was no longer valid because prior to the arrest, the officer had learned from

a computer check that there was a bench warrant for Harvey and had confirmed

through his dispatcher that the warrant was still outstanding and valid. Harvey, 266

Ga. at 671. The Supreme Court held that probable cause, which is based on the facts

and circumstances known to the arresting officer, included the officer’s knowledge

that a valid bench warrant had been issued for Harvey’s arrest, and that information

obtained from the Georgia and National Crime Information Centers was reliable




                                            5
enough to establish probable cause for arrest.2 Id. at 673. See also Buchanan, 259 Ga.

App. at 273 (probable cause to arrest existed where officer arrested Buchanan based

on a state computer check that revealed an outstanding warrant for his arrest

regardless of whether the warrant later proved to be incorrect or invalid).

      Similarly, here, the officers learned from the GCIC that Lucas had an

outstanding warrant for his arrest; verified through a probation officer Lucas’s

identity based on a tattoo; and verified through a fingerprint rapid identification

device that Lucas was the subject of the warrant. This information provided a reliable

basis for a determination of probable cause to arrest, and the trial court erred by

concluding that the failure of the State to produce a valid arrest warrant invalidated

the arrest. See, e.g., State v. Edwards, 307 Ga. App. 267, 273 (1) (704 SE2d 816)

(2010) (physical precedent only) (suppression reversed because dispatcher’s

statement to officer that there was an outstanding arrest warrant provided the probable

cause necessary to arrest).

      Judgment reversed. Andrews, P. J., and Miller, J., concur.

      2
        The Supreme Court distinguished State v. Stringer, 258 Ga. 605 (372 SE2d
426 (1988), upon which Lucas relies: “The officer in that case obtained no reliable
information from the NCIC or any other source that the bench warrant was still valid
and, as previously noted, the State stipulated that probable cause for the arrest did not
exist.” Harvey, 266 Ga. at 673-674.

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