Judge Stephen Dillard Chief Judge Stephen Dillard, Georgia Court of Appeals (Photo: John Disney/ALM)

In reversing a trial judge’s denial of a motion to suppress evidence, the Georgia Court of Appeals seems to invite review of the law regarding what constitutes a valid traffic stop.

The opinion features a 20-year-old critique by a law student who is now a justice.

Chief Judge Stephen Dillard wrote last week reversing Lumpkin County Superior Court Judge N. Stanley Gunter’s denial of a motion to suppress evidence. Defendant David Abercrombie alleges that the officer who stopped him lacked reasonable suspicion to do so. The officer testified that he made the stop because Abercrombie’s pickup truck lacked a rearview mirror. Afterward, the officer discovered pipes and drugs and arrested Abercrombie for possession of methamphetamine, according to the court.

The officer testified that he understood the law to mean that any factory equipment on a vehicle must be in good working condition and that he thought rearview mirrors were required, even though the truck had two working sideview mirrors. The trial judge determined the statute was “vague enough” that the officer was likely correct and concluded that, even if the officer was wrong, he acted in good faith, according to Dillard.

But Dillard, with the support of Judge Tripp Self and Presiding Judge Billy Ray, determined the officer was wrong, and the law as it stands does not have an exception for good faith.

“Abercrombie argues that the officer who stopped him lacked reasonable, articulable suspicion to initiate a stop of his vehicle. Specifically, he contends that his truck’s lack of an interior rearview mirror did not constitute a violation of OCGA § 40-8-7 and OCGA § 40-8-72 and, as a result, could not have given the officer the requisite reasonable, articulable suspicion to justify a stop. We agree,” Dillard wrote.

The winning lawyer is Penny Hunter of the Enotah Circuit Public Defender’s Office. She declined to comment.

On the losing side is Enotah Circuit District Attorney Jeff Langley. He could not be reached.

Dillard went on to say that, in order to initiate a traffic stop, a law-enforcement officer must have “specific and articulable facts that provide a reasonable suspicion that the individual being stopped is engaged in criminal activity.”

“The state has the burden of proving the lawfulness of a search and seizure at the motion-to-suppress hearing,” Dillard said.

Furthermore, Dillard said, Georgia Supreme Court precedent shows “there is no good faith exception.”

The binding precedent here comes from Gary v. State, 1998, Dillard said. And he highlighted that law as one the Supreme Court might want to look at again.

In a footnote, Dillard cited a paper Justice Keith Blackwell wrote 20 years ago as a law student: “Gary v. State: The Georgia Supreme Court Dodges a Confrontation with the Good Faith Exception,” 32 GA. L. REV. 927 (1998).

“We take this opportunity to note that almost twenty years ago, Justice Blackwell (then a law student) questioned the validity of the Supreme Court’s conclusion in Gary,” Dillard wrote. The University of Georgia law student Blackwell suggested the Supreme Court misconstrued the law.

Dillard concluded: “Given the above criticisms and considerations, our Supreme Court may wish to revisit Gary’s construction of OCGA § 17-5-30.”

The case is Abercrombie v. State, No. A17A1847.