294 Ga. 903
FINAL COPY


                   S13G1554. HERNANDEZ v. THE STATE.

      BLACKWELL, Justice.

      Edgar Betancourt and appellant Oscar Hernandez were tried by a jury and

convicted of trafficking in cocaine.1 At trial, the State presented evidence that

Betancourt and Hernandez were stopped by law enforcement officers on

Interstate 85 in Gwinnett County. In the course of that traffic stop, the officers

found a large quantity of cocaine hidden in the car in which Betancourt and

Hernandez were traveling, a Nissan with a Massachusetts tag and dark tinted

windows. The State also presented evidence of a similar transaction, in which

Betancourt and Hernandez had been stopped two weeks earlier by law

enforcement officers on Interstate 77 in North Carolina. In the course of that

stop, the North Carolina officers found $195,000 hidden in the car in which

Betancourt and Hernandez were traveling, a Mercedes with a Massachusetts tag

and dark tinted windows. Betancourt and Hernandez both appealed from their

convictions, and among other claims of error, Hernandez asserted that the trial


      1
        Hernandez also was convicted of obstruction of a law enforcement officer, but that
conviction is not important for the purposes of this appeal.
court should have suppressed the evidence of the similar transaction because the

State failed to prove the lawfulness of the North Carolina traffic stop.

      In Betancourt v. State, 322 Ga. App. 201 (744 SE2d 419) (2013), the

Court of Appeals affirmed the convictions. About the suppression of the similar

transaction evidence, the Court of Appeals noted that the exclusionary rule is

intended principally to deter unlawful searches and seizures, and “the rule

applies only when its remedial objectives are thought most efficaciously

served.” 322 Ga. App. at 208 (3) (b) (citation and punctuation omitted). The

Court of Appeals reasoned that the suppression of evidence seized by out-of-

state law enforcement officers would yield no appreciable deterrence, and as a

result, it held that the exclusionary rule did not apply in this case to require the

suppression of the similar transaction evidence, even assuming that such

evidence was seized unlawfully. Id. at 209-210 (3) (b). On the petition of

Hernandez, we granted a writ of certiorari to consider this holding by the Court

of Appeals. We now affirm the judgment of the Court of Appeals, albeit on

another ground.

      Our statutory law provides a procedure by which an accused may move

to suppress evidence that was obtained unlawfully. See OCGA § 17-5-30. A

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motion to suppress must “be in writing and state facts showing that the search

and seizure were unlawful.” OCGA § 17-5-30 (b). In the absence of such a

motion, the State has no burden to prove the lawfulness of the manner in which

evidence was obtained, and the accused fails to preserve any error with respect

to the suppression of the evidence. See Rucker v. State, 250 Ga. 371, 375 (11)

(297 SE2d 481) (1982) (defendant waived suppression when he moved to

suppress evidence orally, rather than in writing); Gilreath v. State, 247 Ga. 814,

822 (2) (279 SE2d 650) (1981) (same); Yeldell v. State, 240 Ga. 37, 38 (2) (239

SE2d 364) (1977) (finding no error in failure of trial court to suppress evidence

where defendant moved to suppress orally, rather than in writing, and failed to

state any facts demonstrating that the search and seizure were unlawful). See

also 6 LaFave, Search & Seizure § 11.2 (a) (5th ed. 2013) (even “evidence

acquired in violation of the Fourth Amendment is not excluded from criminal

trials as a matter of course”).

      In this case, the State gave notice to Hernandez — about seven months

before trial — that it intended to offer evidence of the North Carolina traffic

stop as a similar transaction. Although Hernandez objected to the admission of

that evidence on several grounds, he never argued before trial that the evidence

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had been unlawfully obtained, and he never filed a written motion to suppress.

Instead, he waited until a hearing on the admissibility of the similar transaction

evidence — held out of the presence of the jury, but midway through the trial2

— to say anything about the lawfulness of the North Carolina traffic stop. And

even then, he pointed to no facts suggesting that the stop was unlawful. To the

contrary, he merely argued that the State had failed to prove the lawfulness of

the stop. The State, of course, had no burden to prove the lawfulness of the stop

until its lawfulness was put in issue by a motion that complied with the statutory

requirements, and it is undisputed that Hernandez filed no such motion.

Accordingly, the trial court ruled that the State was not required to prove that the

evidence was obtained lawfully. About this, the trial court was exactly right, and

Hernandez has failed to preserve any error with respect to the suppression of the




       2
         The State noted on the record that it attempted to schedule the hearing earlier, but
Hernandez refused to stipulate that he was involved in the North Carolina stop. Hernandez
acknowledged at the hearing that he had prior notice of the State’s intention to introduce the
similar transaction evidence at trial and that he had no objection to the timing of the hearing.

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similar transaction evidence. Upon that ground,3 we affirm the judgment of the

Court of Appeals.4

       Judgment affirmed. All the Justices concur.




       3
         Because Hernandez has failed to preserve any error with respect to the suppression
of the similar transaction evidence, it is not necessary in this case to consider the extent to
which the exclusionary rule applies to similar transaction evidence obtained as a result of a
search and seizure by out-of-state law enforcement officers. Accordingly, we express no
opinion about the correctness of the views of the Court of Appeals upon that subject.
       4
         Hernandez also argued in the Court of Appeals that his trial counsel was ineffective
because he failed to preserve the suppression issue. About that, Hernandez failed to prove
prejudice, an essential element of any claim that counsel rendered ineffective assistance. See
Strickland v. Washington, 466 U. S. 668, 691-694 (III) (B) (104 SCt 2052, 80 LE2d 674)
(1984). At the hearing on the admissibility of the similar transaction evidence, the State
offered the testimony of a North Carolina officer who arrived at the scene only after another
officer had stopped Betancourt and Hernandez. The State did not offer the testimony of the
other North Carolina officer, who apparently was on vacation at the time of trial. As such,
Hernandez argues that the State could not have proved the lawfulness of the North Carolina
stop. But if his lawyer had done what Hernandez contends he should have done — if he had
filed a written motion to suppress — the State would have had notice that it would be
required to prove the lawfulness of the stop, and it conceivably could have made
arrangements for the other North Carolina officer to testify (the record does not show
otherwise). On his motion for new trial, Hernandez did not offer any testimony from this
other officer, so the record does not reflect whether his testimony would have been
insufficient to prove the lawfulness of the search. And as such, Hernandez failed to carry his
burden to show prejudice. See Dickens v. State, 280 Ga. 320, 322-323 (2) (627 SE2d 587)
(2006).



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                          Decided March 28, 2014.

      Certiorari to the Court of Appeals of Georgia – 322 Ga. App. 201.

      Jess B. Johnson, for appellant.

      Daniel J. Porter, District Attorney, Karen M. Harris, Assistant District

Attorney, for appellee.




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