                            FIRST DIVISION
                             PHIPPS, C. J.,
                    ELLINGTON, P. J., and MCMILLIAN, 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/


                                                                      March 2, 2015




In the Court of Appeals of Georgia
 A14A2066. THE STATE v. CASTILLO.

      PHIPPS, Chief Judge.

      Based on evidence collected during a traffic stop on May 14, 2000, Efrain

Castillo was charged with driving while his license was suspended, having no proof

of insurance, and committing second-degree forgery (for presenting to the officer who

stopped him a social security card that did not belong to him). Castillo filed a motion

to suppress the evidence, challenging the legality of the stop. The state responded that

the officer had reasonable suspicion that the vehicle – which had a dealer’s drive-out

tag – was being driven in violation of state vehicle registration law. After a hearing,

the trial court granted Castillo’s suppression motion. The state appeals. For reasons

that follow, we affirm.
                Investigative stops of vehicles are analogous to Terry1 stops and,
      therefore, must be justified by specific, articulable facts sufficient to
      give rise to a reasonable suspicion of criminal conduct. Operation of any
      vehicle required to be registered in the State of Georgia without a valid
      numbered license plate is a misdemeanor, except that, during the 30-day
      period within which vehicle registration is required, the purchaser of a
      new or used vehicle may operate the vehicle with a temporary plate
      issued by the dealer. At the time of the traffic stop in this case, Georgia
      law did not require the temporary plate to show its expiration date[.]
      [S]uch a requirement was added by OCGA § 40-2-8 (b) (2) (B) (i),
      effective July 1, 2000.2


And cases such as Chiasson v. State3 recognize that, prior to July 1, 2000, the stop of

a vehicle to investigate compliance with state registration law may have been

authorized if the vehicle bore a dealer’s drive-out tag which, based upon its

“weathered” look, appeared to have been on the vehicle beyond the statutory 30-day

period.4


      1
           Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LEd2d 889) (1968).
      2
         Chiasson v. State, 250 Ga. App. 63, 64 (1) (549 SE2d 503) (2001)
(punctuation and footnotes omitted); see Ga. L. 2000, p. 523 § 1; see also Bius v.
State, 254 Ga. App. 634, 636 (2) (563 SE2d 527) (2002) (noting change to Georgia
law).
      3
           Supra.
      4
           Chiasson, supra at 63-64 (1).

                                             2
      OCGA § 17-5-30 (b) states that “the burden of proving that the search and

seizure were lawful shall be on the state.” Hence, “[i]t is the State’s burden to

establish the existence of circumstances constituting an exception to the general

prohibition against warrantless searches and seizures.”5

      When the trial court convened the suppression hearing on January 9, 2014,

thirteen years had passed since the officer stopped Castillo on May 14, 2000 at about

7:00 p.m. The officer was asked on direct examination to “[t]ell the court about the

circumstances of that contact” with Castillo. The officer testified, “I initially stopped

the vehicle that Mr. Castillo was driving for a drive-out tag that appeared very worn

and old. It appeared that it had been on the vehicle more than 30 days. That’s why I

initiated the traffic stop.” The officer described the tag as “one of those paper plates.”

The officer was further asked on direct examination, “Did it seem substantially more

than a month old or just a little bit more than a month old?” He answered, “As I’m

trying to remember, it was pretty worn out. I’m trying to recall. But for me to have

stopped it, it must have been fairly worn out.”




      5
     See State v. Massa, 273 Ga. App. 596, 597 (615 SE2d 652) (2005), citing
OCGA § 17-5-30 (b).

                                            3
      In support of his challenge to the traffic stop, Castillo called as a witness his

sister, who was the owner of the vehicle at the time in question. She testified on direct

examination that she had purchased the car on May 4, 2000. Given that testimony,

defense counsel included in closing argument,

      [S]he bought this car on May 4, 2000. Briefly ten days later, during the
      summer and not during a time when it is snowing a lot or there would be
      anything that would cause this tag to be weathered a lot, only ten days
      later, this tag looked, according to the officer, so old and outdated that
      he couldn’t read it or so weathered that he found that it was a [sufficient]
      basis for stopping the car.


      The prosecutor countered that the stop was justified, in light of the officer’s

testimony and the holding of Chiasson.6 Additionally, as the prosecutor addressed,

      [T]he final argument that the defense made basically comes down to
      credibility. . . . [The] defense’s argument is that the officer is not
      credible. We submit that, Judge, nothing has been shown in this hearing
      to impugn on the credibility of the officer. He had absolutely no reason
      to make this up. And in fact, there’s a big bias for the witness who
      testified. It wasn’t an independent witness. It was the defendant’s sister.
      So obviously she actually does have a reason to state falsely when she
      actually bought the car. . . .Your Honor has only her word as far as when
      she bought the car. There is no official documentation tendered into


      6
          Supra.

                                           4
      evidence that shows exactly when this car was bought or when the
      drive-out tag was bought.


The prosecutor added,

      Even if later on it came out to be that the tag was fairly new or it was
      less than a month old, that’s not the standard. The standard is at the time
      of the stop whether the officer reasonably believed that the tag was old.
      So even if later on the defense was able to show that the tag was less
      than a month old, that does not make the stop illegal. It’s what the – the
      information that the officer had at the time of the stop that’s relevant.


      The trial court acknowledged the officer’s testimony concerning the condition

of the tag; also, the court agreed with the prosecutor that, under Chiasson, a

weathered car tag could provide the requisite basis to stop a vehicle, acknowledging

that even if “the tag wasn’t 30 days old, . . . it is the perspective at the time of the

observation . . . not the truth of whether it is 30 days old but what it looks like.”

      However, the trial court explicitly questioned the officer’s recollection of the

tag’s condition 13 years earlier, further remarking, “[T]here’s no picture of the tag.”

The court stated that it was faced with a “dilemma”: “I certainly find [the officer’s]

testimony credible, but I also found the defense witness’s testimony credible.” The

trial court ended the hearing, electing to reserve ruling on the motion so as to give the



                                           5
defense opportunity to supplement the record, and stating that such evidence could

“undermine” the officer’s testimony relating to the condition of the tag.

      When the court reconvened the parties on February 4, 2014, it announced that

it had reviewed “the additional documentation that [defense counsel] has provided.”

And as the state concedes in its appellate brief, “[t]he Appellee was . . . allowed to

supplement the record with documents showing that the vehicle was purchased on

May 4, 2000.” Further, the trial court again acknowledged Chiasson’s holding, as

well as the officer’s testimony. Then the court revealed its determination that other

testimony and evidence was contrary to the officer’s testimony, which had “raise[d]

enough doubt” such that the court would not give “credence” to the officer’s

testimony. Hence, the court stated that it would grant Castillo’s motion. The next day,

the court entered the order, which summarily granted the motion.

      The Supreme Court of Georgia has enunciated three fundamental principles

which must be followed when conducting appellate review of a ruling upon a motion

to suppress:

      First, when a motion to suppress is heard by the trial judge, that judge
      sits as the trier of facts. The trial judge hears the evidence, and his
      findings based upon conflicting evidence are analogous to the verdict of
      a jury and should not be disturbed by a reviewing court if there is any


                                          6
      evidence to support [them]. Second, the trial court’s decision with
      regard to questions of fact and credibility must be accepted unless
      clearly erroneous. Third, the reviewing court must construe the evidence
      most favorably to the upholding of the trial court’s findings and
      judgment. On numerous occasions the appellate courts of this state have
      invoked these three principles to affirm trial court rulings that upheld the
      validity of seizures. These same principles of law apply equally to trial
      court rulings that are in favor of the defendant. . . .7


      In this appeal, the state maintains that the officer’s testimony, together with the

holding in Chiasson, showed that the officer had reasonable suspicion to conduct the

traffic stop of Castillo’s vehicle. But the state has wholly failed to address the

credibility underpinning of the trial court’s decision.

      “Credibility of witnesses and the weight to be given their testimony is a

decision-making power that lies solely with the trier of fact. The trier of fact is not




      7
        Miller v. State, 288 Ga. 286-287 (1) (702 SE2d 888) (2010), quoting Tate v.
State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); see Jones v. State, 291 Ga. 35, 36-
37 (1) (727 SE2d 456) (2012) (“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. To the
extent an issue concerns a mixed question of fact and law, we accept the trial court’s
findings on disputed facts and witness credibility unless they are clearly erroneous,
but independently apply the law to the facts.”) (citations omitted).

                                           7
obligated to believe a witness even if the testimony is uncontradicted and may accept

or reject any portion of the testimony.”8

       It is evident that the officer’s claim of the tag’s condition – which was the sole

articulated basis for the stop – was found by the trial court to lack credibility.9

       Motions to suppress, by their nature, often turn on difficult questions of
       credibility and specific findings of fact. The principles of appellate
       review applicable to these motions were set forth to ensure that, in

       8
        Tate, supra at 56 (3) (citation and footnote omitted); see State v. Hester, 268
Ga. App. 501, 505 (602 SE2d 271) (2004) (“The trial judge, like the jury, is the
primary guardian of the rights of a citizen. An absolute rule requiring the trial judge
to believe the witnesses called by the state would contradict the American system of
justice.”) (whole court).
       9
          See Barnett v. State, 204 Ga. App. 491, 492 (1) (420 SE2d 43) (1992)
(analyzing that the trial court, “perforce of its ruling on the suppression motion,”
made credibility determination) (cited in Tate, supra at 57 (3) and n. 6, as an example
of the way reviewing courts “interpret” judicial orders in cases where the trial court,
as Tate ascertained, did not make specific findings); see also Hester, supra at 504
(ascertaining that the trial court chose to disbelieve the officer’s testimony, where the
trial court granted the suppression motion, even though the state presented an
officer’s testimony, which, “[i]f believed by the trial court, . . . would [have been]
more than adequate to justify” the traffic stop); Massa, supra at 597-598 (determining
that, although the trial court did not explicitly reject the officer’s testimony, the trial
court’s findings of fact and case law cited “suggested that the trial court had rejected
the officer’s testimony” that underlay the state’s claim that the officer’s intrusion was
authorized); see generally Miller, supra at 289-290 (2) (concluding that, where the
“trial court explicitly questioned the bases presented as the purpose for the stop of
[the accused],” “credibility determinations played a significant part in the trial court’s
[suppression] ruling,” and thus, “[t]his credibility question lies at the very core of the
trial court’s ruling, and it should not be negated by [the appellate court]”).

                                            8
      difficult cases such as this one, the trial court’s resolution of these issues
      would be given deference, as only the trial court actually sees the
      witnesses and hears their testimony. Staying true to these principles, a
      clearly erroneous standard of review must be applied in this case. . . .10


We find no clear error in the trial court’s credibility determination.11 The state, having

thus failed to adduce credible evidence that the officer observed a tag that appeared

more than 30 days old, has supplied no basis to disturb the trial court’s decision to

grant Castillo’s motion to suppress.12

      Judgment affirmed. Ellington, P. J., and McMillian, J., concur.



      10
           Miller, supra at 290 (2).
      11
           See Tate, supra at 55-56 (2) and n. 5 (noting an issue of credibility
concerning the officer’s testimony was created, where such testimony was considered
in light of other “circumstantial evidence” that was presented at hearing; further
enumerating “demeanor” as a factor that can lead a finder of fact to disregard
testimony by an officer that an accused was violating the law; and concluding that
“[a] rational trier of fact could believe that [the officer’s] testimony was not truthful
and that the officer was claiming that [accused] broke the law in order to justify an
illegal stop”); Massa, supra; Hester, supra at 504-506 (affirming the grant of
suppression motion, where the trial judge disbelieved the officer’s testimony that
underlay the state’s claim that the traffic stop was justified; reiterating that “when no
error of law appears on the record, and the trial court’s ruling is based on the
credibility of the oral testimony presented at the hearing, [an appellate court] must .
. . leave the decision to the trial judge as the trier of fact”); Barnett, supra. See also
Miller, supra.
      12
           See Miller, supra; Tate, supra; Massa, supra; Hester, supra; Barnett, supra.

                                            9
