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

                    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


                                                                  September 15, 2016




In the Court of Appeals of Georgia
 A16A0891. STATE v. WALLACE

      RAY, Judge.

      Following a traffic stop, Charles Wallace was charged with possession of

marijuana with intent to distribute (OCGA § 16-13-30 (j) (1)), driving with a

suspended license (OCGA § 40-5-121 (a)), and improper lane change (OCGA § 40-6-

48 (1)). Wallace filed a motion to suppress all evidence recovered during the search

of his vehicle, challenging the basis for the traffic stop and alleging that law

enforcement lacked probable cause to detain him and search his vehicle. The trial

court granted the motion to suppress, however, on the basis that the State failed to

establish venue at the pre-trial suppression hearing. The State appeals, contending
that the trial court misapplied the law when it suppressed the evidence on that basis.1

For the reasons that follow, we reverse the trial court’s judgment and remand this case

for further proceedings consistent with this opinion.

      “When the evidence at a suppression hearing is uncontroverted and the

credibility of witnesses is not in question, we conduct a de novo review of the trial

court’s application of the law to the undisputed facts.” (Citation omitted.) Jones v.

State, 291 Ga. 35, 36-37 (1) (727 SE2d 456) (2012).

      The record shows that on August 27, 2015, two officers of the Atlanta Police

Department initiated a traffic stop because the vehicle operated by Wallace made an

abrupt and improper lane change without using its turn signal. As the two officers

approached Wallace’s car, they smelled a strong odor of marijuana coming from

inside the vehicle. During initial questioning, Wallace stated that he did not have a

driver’s license, and a computer check of the identification information that Wallace

provided to the officers revealed that his driver’s license had been suspended. Based

on the officers’detection of the odor of marijuana, Wallace’s vehicle was searched

and a large vacuum-sealed bag and several smaller sandwich bags containing

      1
        Although we extended the time for Wallace to file an appellee brief, he did
not file a brief in response to the State’s appeal. Additionally, we note that no
appearance was made by appellee’s counsel at oral argument.

                                          2
marijuana, along with a digital scale, were found in a bookbag on the passenger side

floorboard of his vehicle. Wallace’s person was also searched, and $365 in small

denominations were found in his front pocket.

      Wallace’s written motion to suppress was premised on the grounds that the

officers lacked a reasonable basis for the traffic stop and lacked probable cause to

detain him and search his vehicle. At the pre-trial hearing on the motion, the State

presented evidence that was narrowly tailored for the trial court’s consideration of

these issues. Although the State established that the traffic stop and the resulting

search and seizure occurred in Atlanta on Martin Luther King, Jr. Drive, it is

undisputed that the State did not attempt to establish venue in Fulton County.

      At the conclusion of the pre-trial hearing, Wallace moved to have the evidence

suppressed on the ground that the State did not establish venue. Apparently without

addressing the issues raised in the written motion to suppress, the trial court

suppressed the evidence and dismissed the case on the narrow basis that the State

“failed to establish venue of this case within Fulton County.” This appeal ensued.

      1. The State argues that venue is a jurisdictional fact to be proven at trial, and

that it has no bearing on the relevant issues of whether the officers had a reasonable

basis for the traffic stop or whether the warrantless search of the vehicle was

                                          3
supported by probable cause. Accordingly, the State contends that the trial court erred

in granting the motion to suppress on the basis of venue. We agree.

      Georgia’s exclusionary rule, codified at OCGA § 17-5-30, provides for the

suppression of evidence obtained from an unlawful search. See OCGA § 17-5-30 (a);

Harvey v. State, 266 Ga. 671, 672 (469 SE2d 176) (1996); Boatright v. State, 225 Ga.

App. 181, 183 (2) (483 SE2d 659) (1997). The exclusion of evidence is not a

constitutional right; it is a judicially created remedy2 which acts as a deterrent to

safeguard a person’s Fourth Amendment right against unreasonable searches and

seizures. See U. S. CONST. amend. IV; Black v. Wigington, 811 F.3d 1259, 1267 (III)

(B) (11th Cir. 2016); Harvey, supra at 671; State v. Young, 234 Ga. 488, 491 (1) (216

SE2d 586) (1975).

      Venue relates to the place of the trial because criminal actions are required to

be tried in the county where the crime occurred, unless otherwise provided by law.3

See Ga. Const. of 1983, Art. VI, Sec. II, Par. VI; OCGA § 17-2-2 (a). Accordingly,

venue is a jurisdictional fact and an element of the crime which the State must prove

      2
       We note, of course, that in Georgia the exclusionary rule has been statutorily
adopted by the General Assembly.
      3
        We note that the formal accusation charging Wallace with the stated offenses
alleges that the offenses occurred in Fulton County.

                                          4
beyond a reasonable doubt at trial. See Twitty v. State, 298 Ga. 204, 206 (2) (779

SE2d 298) (2015); Graham v. State, 275 Ga. 290, 292 (2) (565 SE2d 467) (2002);

State v. Hasson, 334 Ga. App. 1, 4 (1) (778 SE2d 15) (2015); Mock v. State, 306 Ga.

App. 93, 96 (1) (701 SE2d 567) (2010). Ultimately, it is up to the trier of fact at trial

to determine whether venue has been sufficiently established.4 See Graham, supra.

The State did not need to establish venue at the pretrial hearing on Wallace’s motion

to suppress as it was not relevant to the issues raised in his written motion.

       As the issue of venue has no bearing on whether the officers had a reasonable

basis for the traffic stop or whether the resulting search of Wallace and his vehicle

were supported by probable cause, we find that it was erroneous for the trial court to

suppress the evidence on the basis of venue. “[W]here it is apparent that the court

rests its judgment on reasons which are erroneous or upon an erroneous legal theory,

it commits reversible error.” (Citation and punctuation omitted.) State v. Willis, 184

Ga. App. 639, 641 (2) (362 SE2d 444) (1987). In reaching its decision on the narrow

grounds stated in its written order, it is apparent that the trial court did not address the

       4
         Notably, even the State’s failure to establish venue at trial will not bar the
retrial of a criminal defendant for the same offense because the failure to establish
venue is a procedural defect which may be cured by the State upon retrial. Stockard
v. State, 327 Ga. App. 184, 188-189 (2) (761 SE2d 351) (2014); Hudson v. State, 296
Ga. App. 758, 760 (1) (675 SE2d 603) (2009). Accord Twitty, supra at 207-208 (2).

                                             5
merits of the issues raised in Wallace’s written motion to suppress. Accordingly, we

reverse the trial court’s judgment and remand the case with direction that the trial

court make a determination on whether the officers had a reasonable basis for the

traffic stop and whether the resulting search was supported by probable cause, after

consideration of the evidence that was presented at the hearing. See generally, State

v. Hogans, 301 Ga. App. 261, 264 (2) (687 SE2d 230) (2009); State v. Willis, 207 Ga.

App. 76, 77 (427 SE2d 306) (1993).

      2. The State also argues that the trial court erred in granting the motion to

suppress on the basis of venue because Wallace did not raise the issue in his written

motion to suppress and, thus, the State was not properly placed on notice that the

issue of venue would be raised at the hearing. In light of our holding in Division 1,

we need not address this argument.

      Judgment reversed and case remanded with direction. Doyle, C. J., and

Andrews, P. J., concur.




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