                               FOURTH DIVISION
                                 BARNES, P. J.,
                             RAY and MCMILLIAN, 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


                                                                  November 19, 2015




In the Court of Appeals of Georgia
 A15A0833. GONZALEZ v. THE STATE.

      MCMILLIAN, Judge.

      Edgar Yuri Gonzalez appeals the trial court’s denial of his motion for new trial

following his conviction on one count each of trafficking methamphetamine,

possession of cocaine, possession of less than one ounce of marijuana, and driving

on a suspended license. On appeal, Gonzalez argues that the trial court erred in

refusing to hear his motion to suppress, which the court found to be untimely.

Alternatively, if his motion was untimely, Gonzalez asserts that his trial counsel was

ineffective in failing to file it in a timely manner. Finding no merit to either of these

arguments, we affirm.

      Viewed in the light most favorable to the verdict, the evidence at trial showed

that on May 7, 2010, Detective Samuel Eaton of the Dalton Police Department was
attempting to serve a search warrant at the house located at 1420 Classic Chase Drive

in Whitfield County (the “Residence”), when he noticed a woman at the curb and

children, who were visibly upset, approaching her. He observed one of these children

leaving the Residence as she approached the woman. After Detective Eaton learned

that the woman had called police to report a domestic disturbance, he saw a man leave

the Residence and drive away at a high rate of speed in a blue Dodge pickup truck,

which was towing a utility trailer containing lawn equipment. Detective Eaton

attempted to follow the truck and also sent a description of the vehicle to dispatch.

      Meanwhile, Sergeant Chris Brunson of the Whitfield County Sheriff’s Office

had received a call on the domestic disturbance at the Residence. As he was en route

to the scene, he received a report that the “subject” had left the Residence in a blue

truck and detectives were following him. When Deputy Brunson spotted the truck,

which Gonzalez was driving, he initiated a traffic stop to verify Gonzalez’s

involvement in the domestic report. Deputy Brunson asked Gonzalez enough

questions to verify that he was at the Residence and was involved in the domestic

disturbance. During the stop, Deputy Brunson also ran Gonzalez’s license and

discovered that it had been suspended. He then asked Gonzalez to step out of the car

and placed him into custody.

                                          2
       Detective Eaton, who had arrived on the scene, read Gonzalez his rights. When

the detective asked Gonzalez whether there was anything illegal in his truck,

Gonzalez began to cry and told him that there were “six ounces” in a bag in his truck.

A search of the truck resulted in the discovery of 115.46 grams of methamphetamine,

3.23 grams of cocaine, and less than one ounce of marijuana, resulting in the charges

in this case.

       On August 27, 2010, Gonzalez’s counsel filed a motion to suppress, which

stated in its entirety:

                                 MOTION TO SUPPRESS

                COMES NOW the Defendant in the above-styled case, by and
       through the undersigned counsel, and moves this Honorable Court to
       suppress the following:


                1. Any and all evidence illegally obtained and/or seized by the
                State.


                2. Any and all evidence of pre-trial and in-court identification of
                the Defendant.


                3. Any and all statements made by the Defendant.




                                             3
             In support of said Motion, the Defendant asserts that the above-
      referenced evidence was obtained in violation of the laws of the United
      States and the State of Georgia.


             Defendant expressly reserves the right to amend and supplement
      this motion as new facts and information become available through the
      State’s responses to the Defendant’s discovery requests, or otherwise.


             WHEREFORE, the Defendant respectfully requests that this
      Honorable Court conduct a full and complete hearing regarding this
      Motion to Suppress and order the suppression of any evidence seized,
      obtained, or acquired in violation of the laws of the United States and
      the State of Georgia.


Gonzalez waived formal arraignment and pled not guilty to the charges on September

3, 2010.

      Subsequently, at a calendar call on October 22, 2010, ten days prior to

Gonzalez’s trial, his counsel filed a motion to continue and tendered a more

particularized motion to suppress. The State opposed the motion as untimely, noting

that all the facts in the case had been developed through testimony presented at a July

23, 2010 probation revocation hearing for Gonzalez. Defense counsel explained,

however, that she was waiting to determine whether a tape of the traffic stop existed



                                          4
before amending Gonzalez’s preliminary motion to suppress,1 and she had just

learned the day before that there was no tape. The trial court found that Gonzalez’s

preliminary motion was “pure boilerplate,” with “no factual allegations in it

whatsoever,” and thus provided no “basis for rightful amendment.” And the trial court

determined that any question regarding the existence of a tape of the traffic stop was

“a matter for the determination of the defense about whether it [wanted] to file” an

amended motion, but it “[did] not provide a basis for allowing an untimely motion.”

Therefore, the trial court ruled that the amended motion to suppress would not be

heard.

         1. Gonzalez first contends that the trial court erred in refusing to hear his

motion to suppress on the ground it was untimely. In its order denying Gonzalez’s

motion for new trial on this ground, the trial court reiterated its reasons for refusing

to hear Gonzalez’s motion to suppress, stating that the preliminary motion “was

infirm for lack of specificity under OCGA § 17-5-30,” and the proposed amended

motion was untimely under OCGA § 17-7-110.




         1
        The State asserted that Detective Eaton had testified at the revocation hearing
that he had no tape, and he did not know if Deputy Brunson had a tape.

                                           5
      Under OCGA § 17-7-1102 and USCR 31.1, a motion to suppress must be filed

within ten days of the date of arraignment unless the trial court extends the time for

filing the motion. “The purpose of [this] time requirement . . . is fundamental fairness

to all parties and those who must attend trial. Failing to file a timely motion to

suppress amounts to a waiver of even constitutional challenges.” (Citations omitted.)

Hatcher v. State, 224 Ga. App. 747, 748-49 (1) (482 SE2d 443) (1997). Thus,

“[w]hether the motion [to suppress] has merit is not an issue; the rule does not apply

only to non-meritorious motions.” Id. at 749 (1). And where, as here, the defendant

waives arraignment, “the ten-day period in which [the defendant] must file pretrial

motions begins on the date that the waiver of arraignment is filed.” Bighams v. State,

296 Ga. 267, 270 (2), n.4 (765 SE2d 917) (2014). Accordingly, because Gonzalez

failed to move for and obtain an extension of time, the pretrial motions in this case

should have been filed by September 13, 2010.


      2
         OCGA § 17-7-110 provides, in pertinent part, that “[a]ll pretrial motions,
including demurrers and special pleas, shall be filed within ten days after the date of
arraignment, unless the time for filing is extended by the court.” And under USCR
31.1, “[a]ll motions, demurrers, and special pleas shall be made and filed at or before
the time set by law unless time therefor is extended by the judge in writing prior to
trial.” See also Davis v. State, 272 Ga. 818, 819 (1) (537 SE2d 327) (2000) (“USCR
31.1 does not allow exceptions; its flexibility is provided by when and how an
extension of time for filing may be granted.”).

                                           6
      Moreover, OCGA § 17-5-30 (b) outlines the requirements for a motion to

suppress. “The statutory provision mandates that a motion to suppress ‘be in writing

and state facts showing that the search and seizure were unlawful.’ . . . Compliance

with OCGA § 17-5-30 (b) is required because evidence exclusion is an extreme

sanction and one not favored in the law.” (Citations and punctuation omitted;

emphasis supplied.) Young v. State, 282 Ga. 735, 735-36 (653 SE2d 725) (2007).

Thus, “[a]ll motions to suppress, whether based on statutory or non-statutory grounds

must state facts and not merely conclusions.” (Citation and punctuation omitted.)

Davis v. State, 203 Ga. App. 315, 316 (2) (416 SE2d 789) (1992).

      Although Gonzalez’s original motion was timely, actually pre-dating the

waiver of arraignment, it failed to provide any factual statement, much less any

factual support for the arguments he raised in his amended motion to suppress.

Because the original motion did not meet the statutory requirements, it was subject

to dismissal. See Davis, 203 Ga. App. at 316 (2).

      Gonzalez’s proffered amendment of the motion to suppress, which was

tendered more than one month after he waived arraignment, was untimely. “When a

defendant files an untimely pre-trial motion, the trial court may dismiss the motion

or entertain a request by the defendant to accept the late filing.” Taylor v. State, 326

                                           7
Ga. App. 27, 30 (2) (755 SE2d 839) (2014). Therefore, the trial court had the

discretion to determine whether Gonzalez was to be afforded an opportunity to file

an untimely amendment to his legally defective preliminary motion, and we will not

disturb the trial court’s ruling on appeal in the absence of an abuse of that discretion.

State v. Mojica, 316 Ga. App. 619, 622-23 (2) (730 SE2d 94) (2012); Davis, 203 Ga.

App. 316-17 (3).

      Here, the record indicates that Gonzalez had the benefit of testimony from the

State’s witnesses regarding the issues in the case at the probation revocation hearing

in July 2010. Even though Deputy Brunson apparently did not testify at the hearing,

Gonzalez could have alleged the facts as he knew them in his preliminary motion to

suppress. He also could have moved for an extension of time to file a more

particularized motion at the time he filed the preliminary motion. If he later obtained

a videotape that added new facts or contradicted the other evidence, he could have

moved for leave to amend his motion based on any newly acquired evidence.

Therefore, Gonzalez was not denied a meaningful opportunity to challenge the traffic

stop; rather, he failed to take timely advantage of the opportunity to do so.

Accordingly, we find no abuse of discretion by the trial court in refusing to hear the



                                           8
motion to suppress.3 See Hatcher, 224 Ga. App. at 749 (1); Davis, 203 Ga. App. at

317 (3).

         2. Gonzalez alternatively asserts that his trial counsel was ineffective in failing

to file his amended motion to suppress in a timely manner. He argues that the timely

filing of the motion would have resulted in the suppression of the evidence because

he asserts that Deputy Brunson lacked reasonable articulable suspicion to stop his

truck.

         To prevail on his claim of ineffective assistance of counsel, Gonzalez

         must show counsel’s performance was deficient and that the deficient
         performance prejudiced him to the point that a reasonable probability
         exists that, but for counsel’s errors, the outcome of the trial would have
         been different. A strong presumption exists that counsel’s conduct falls
         within the broad range of professional conduct.


(Citations and punctuation omitted.) Pruitt v. State, 282 Ga. 30, 34 (4) (644 SE2d

837) (2007). See also Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012).

Because we find that a motion to suppress based on the validity of the traffic stop


         3
         We note that the practice in many jurisdictions is to allow late amendments
to a motion to suppress and thus the trial court would have acted well within its
discretion to have allowed the particularized motion. But this Court sits to correct
error, and we find no legal error in the denial of the motion to suppress as untimely.

                                              9
would have been meritless, we conclude that Gonzalez has failed to carry his burden

of demonstrating that his trial counsel was ineffective. See Lockheart v. State, 284

Ga. 78, 80 (3) (663 SE2d 213) (2008) (where motion to suppress evidence would

have been meritless, counsel’s failure to file such a motion did not amount to

ineffective assistance); Quinn v. State, 268 Ga. 70, 72 (485 SE2d 483) (1997) (where

suppression motion would not have been meritorious, defendant was not prejudiced

under the second prong of test for ineffectiveness of counsel).

      “When trial counsel’s failure to file a motion to suppress is the basis for a claim

of ineffective assistance, the defendant must make a strong showing that the

damaging evidence would have been suppressed had counsel made the motion.”

(Citation and punctuation omitted.) Mastrogiovanni v. State, 324 Ga. App. 739, 742

(2) (751 SE2d 536) (2013). Gonzalez argued in support of his motion for new trial

that the drug evidence in this case was subject to suppression because Deputy

Brunson lacked reasonable articulable suspicion to initiate the traffic stop. However,

in its order denying that motion, the trial court concluded that under the totality of the

circumstances, Deputy Brunson, who already was en route to the scene of the

disturbance, could rely on the dispatch report that police were pursuing a “suspect”

in that disturbance to stop Gonzalez’s truck, which matched the description provided.

                                           10
      “For a traffic stop to be valid, an officer must identify specific and articulable

facts that provide a reasonable suspicion that the individual being stopped is engaged

in criminal activity.” Jones v. State, 291 Ga. 35, 38 (2) (727 SE2d 456) (2012). “This

suspicion need not meet the standard of probable cause, but must be more than mere

caprice or a hunch or an inclination. A founded suspicion is all that is necessary,

some basis from which the court can determine that the detention was not arbitrary

or harassing.” (Citation omitted.) State v. Melanson, 291 Ga. App. 853, 854 (663

SE2d 280) (2008). Therefore, we review the evidence to determine whether,

considering the totality of the circumstances, specific and articulable facts exist to

support such a suspicion. See Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474)

(1994).

      “It is well settled that police officers are authorized to use information received

by radio dispatch as part of their basis for articulable suspicion to conduct a stop.”

(Citation and punctuation omitted.) Melanson, 291 Ga. App. at 854. Therefore,

      [r]easonable suspicion need not be based on a responding officer’s
      knowledge alone, but may exist based on the “collective knowledge” of
      the police when there is reliable communication between an officer
      supplying the information and an officer acting on that information. In
      this regard, police are authorized to stop an individual based on a “be on
      the lookout” dispatch or even a radio transmission from another officer

                                          11
      who observed facts raising a reasonable suspicion of criminal activity
      or a traffic violation.


(Citation and punctuation omitted.) McBurrows v. State, 325 Ga. App. 303, 306 (1)

(a) (750 SE2d 436) (2013).

      Construed most favorably to uphold the trial court’s ruling, the evidence here

demonstrates that Detective Eaton determined that the woman outside the Residence

had reported a domestic disturbance to police, and he observed visibly upset children

leaving the Residence to speak with the woman. He also observed Gonzalez leave the

residence at a high rate of speed, proceeded to follow him, and identified him on the

radio as the “suspect” in the domestic disturbance. Meanwhile, Deputy Brunson who

had been dispatched to the report of the domestic disturbance observed a vehicle

matching the description provided by Detective Eaton on the radio and initiated the

stop to determine if the driver were involved in the reported incident.

      As the trial court found, this case presents very similar facts to this Court’s

prior decision in Jones v. State, 314 Ga. App. 107 (722 SE2d 918) (2012). In that

case, police received a call from a neighbor about a domestic disturbance. While the

officers were on the way to the scene, the neighbor called back to report that shots

had been fired. Upon their arrival, the officers observed a truck pulling out of a

                                         12
driveway and radioed that “the ‘vehicle is pulling out of the driveway.’” Id. Another

responding officer was in the neighborhood and saw a truck pulling out of a driveway

from about 500 to 600 feet away. Although he did not verify that the truck was

pulling out of the driveway at issue, he saw no other vehicles pulling out of driveways

in the vicinity. Id. That officer initiated a stop of the truck, and after conducting field

sobriety tests, arrested the driver for driving under the influence. Id. This Court held

that based on the totality of the circumstances, “the stop was neither arbitrary nor

harassing, but was based on a founded suspicion of criminal activity.” Id. at 110.

       As in Jones, we find that the totality of circumstances in this case were

sufficient to have created a reasonable suspicion that Gonzalez may have been

involved in criminal activity. Although the present case did not involve any evidence

of gunshots as Jones did, the nature of the domestic disturbance was serious enough

that the children on the scene were crying and the woman involved felt compelled to

call for police intervention. Thus, the officers had a founded suspicion of possible

criminal activity. Accordingly, we find no evidence that the stop was based on mere

hunch or caprice or was in any way arbitrary or harassing. See, e.g., Harvey v. State,

328 Ga. App. 94, 96 (761 SE2d 507) (2014) (reasonable articulable suspicion existed

to support an investigatory stop, where officer was dispatched to investigate

                                            13
suspicious activity at a particular gas station and on a road near the gas station, she

saw a group of men that included a man she believed matched the description given

in the suspicious activity call); Brown v. State, 253 Ga. App. 741, 742-43 (1) (560

SE2d 316) (2002) (information received from dispatch of a citizen’s report of a

suspected drunk driver provided sufficient articulable suspicion for officer to stop

defendant’s vehicle where report contained specific information to identify the

vehicle).

      Accordingly, the trial court properly denied Gonzalez’s motion for new trial.

      Judgment affirmed. Barnes, P. J., and Ray, J., concur.




                                          14
