MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE
State appeals from the trial court's grant of Larry
Shaw's motion to suppress evidence obtained as a result
of Shaw's traffic stop. The trial court granted the
motion to suppress, finding that the law enforcement officer
lacked reasonable articulable suspicion to justify the stop
of Shaw's vehicle. For the reasons set forth below, we
hearing on a motion to suppress, the trial court sits as the
trier of fact and its findings are analogous to a jury
verdict. Watts v. State, 334 Ga.App. 770, 771 (780
S.E.2d 431) (2015). Accordingly, we defer to the trial
court's credibility determinations and will not disturb
its factual findings in the absence of clear error.
Id. And "[w]hen reviewing the grant or denial
of a motion to suppress, an appellate court must construe the
evidentiary record in the light most favorable to the trial
court's factual findings and judgment." Caffee
v. State, 303 Ga. 557, 557 (814 S.E.2d 386) (2018).
Additionally, as a general rule, an appellate court must
limit its "consideration of the disputed facts to those
expressly found by the trial court." Id.
(punctuation omitted). "An appellate court may, however,
consider facts that definitively can be ascertained
exclusively by reference to evidence that is uncontradicted
and presents no questions of credibility, such as facts
indisputably discernible from a videotape." Id.
at 559 (1) (punctuation omitted). Finally, although we defer
to the trial court's fact-finding, we owe no deference to
the trial court's legal conclusions. Hughes v.
State, 296 Ga. 744, 750 (2) (770 S.E.2d 636) (2015).
Instead, we independently apply the law to the facts as found
by the trial court. Id.
viewed, the record shows that Shaw was arrested for driving
under the influence after he was stopped for an alleged
traffic violation. On July 27, 2018, a police officer was
"pacing traffic" to provide safety to officers
working on an accident up ahead. The officer activated his
patrol car's blue lights and weaved from left to right
over all three lanes of the road. Most cars stayed behind
him. Three cars passed him, one using the right shoulder, one
using the left lane, and one using the right lane. A fourth
vehicle, Shaw's, passed the officer on the right about
ten seconds after the third car and within view of the third
car. As the police officer drifted back towards the far right
lane, he came very close to the fourth car. The officer then
initiated a traffic stop on the fourth car. The officer told
the driver, Shaw, that he had stopped the car because Shaw
had not obeyed the officer's traffic directive to stay
behind the patrol car. Shaw responded that he passed the
officer "because everyone else was doing it."
he was arrested and charged with driving under the influence,
Shaw moved to suppress all evidence obtained as a result of
the traffic stop. At the hearing on Shaw's motion, the
officer testified and the State presented a video recording
of the incident from the officer's dash camera. The trial
court granted the motion to suppress, finding that there was
no reasonable articulable suspicion to justify the stop. The
State now appeals from that order.
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 S.E.2d 456) (2012). "Indeed, an investigatory stop
must be justified by some objective manifestation
that the person stopped is, or is about to be, engaged in
criminal activity." State v. Mincher, 313
Ga.App. 875, 877 (723 S.E.2d 300) (2012) (punctuation
omitted). "Although an officer's honest belief that
a traffic violation has actually been committed in his
presence may ultimately prove to be incorrect, such a
mistaken-but-honest belief may nevertheless demonstrate the
existence of at least an articulable suspicion and reasonable
grounds for the stop." Worsham v. State, 251
Ga.App. 774, 775 (554 S.E.2d 805) (2001). "The question
to be decided is whether the officer's motives and
actions at the time and under all the circumstances,
including the nature of the officer's mistake, if any,
were reasonable and not arbitrary or harassing."
State argues that the officer had a reasonable articulable
suspicion that Shaw illegally failed to obey an authorized
person directing traffic, in violation of OCGA § 40-6-2,
which provides that "no person shall fail or refuse to
comply with any lawful order or direction of any police
officer . . . with authority to direct, control, or regulate
traffic." We disagree.
officer testified that he was pacing traffic in order to slow
it down and that he kept cars behind him by weaving from left
to right over all three lanes of the road with the patrol
car's lights on. However, it is undisputed that the
officer let three cars pass his patrol car without initiating
traffic stops. Only after Shaw's car, the fourth car,
passed the patrol car did the officer initiate a traffic
hearing the officer's testimony and reviewing the video
of the traffic stop, the trial court found that the
officer's manner of slowing down traffic, by slowly
driving from left to right over three lanes with his lights
on, did not constitute a clear police order to stay behind
the officer's vehicle. Additionally, the trial court
determined that the officer's traffic directive was
ambiguous because the officer allowed three cars to pass him.
After independent review of the video, we discern no clear
error with these factual findings. See Watts, 334
Ga.App. at 771; Caffee, 303 Ga. at 557. Because the
officer did not give a clear directive that cars must not
pass him and even allowed three cars to pass him without
stopping them, Shaw did not violate any clear directive by
passing the patrol car. Additionally, there was no objective
basis for the officer to reasonably believe that Shaw
violated any such directive. See Mincher, 313
Ga.App. at 877-878 (affirming the trial court's grant of
a motion to suppress evidence obtained as a result of a
traffic stop because the conduct that was alleged as the
basis for the stop was not illegal and there was no objective
basis to suspect that the defendant was or was about to be
engaged in any criminal activity).
State also argues that the officer had reasonable articulable
suspicion to stop Shaw for "any alleged traffic
violation that the police officer observed in his
presence." The State contends that the officer could
have cited Shaw for violating OCGA §§ 40-6-390,
40-6-74, and 40-6-48 based on the video and the officer's
testimony. We disagree.
stop of a vehicle is ... authorized merely if the officer
observed a traffic offense." State v. Zeth, 320
Ga.App. 140, 141 (739 S.E.2d 443) (punctuation omitted); see
also Worsham, 251 Ga.App. at 775-776 (even assuming
that an officer's mistaken belief that Georgia's
motor vehicle registration law had been violated was not
reasonable, he was nonetheless authorized to initiate the
traffic stop after observing the defendant violate another
traffic law by failing to maintain his lane). "So long
as the stop was based upon conduct the officer observed, not
on a mere 'hunch,' and it was not pretextual,
arbitrary, or harassing, an officer may act on a legitimate
concern for public safety in stopping a driver."
State v. Calhoun, 255 Ga.App. 753, 755 (566 S.E.2d
447) (2002). Furthermore, even if an "officer's
honest belief that a traffic violation has actually been
committed in his presence may ultimately prove to be
incorrect, such a mistaken-but-honest belief may nevertheless
demonstrate the existence of at least an articulable
suspicion and reasonable grounds for the stop."
Worsham, 251 Ga.App. at 775.
address each of the violations alleged by the State in turn.
OCGA § 40-6-390 provides that "[a]ny person who
drives any vehicle in reckless disregard for the safety of
persons or property commits the offense of reckless
driving." Here, the video shows that the patrol car
drifted towards Shaw's car, as Shaw drove past the patrol
car in the far right lane. The trial court found that
"rather than [Shaw] almost striking the officer's
vehicle, it was the officer who came close to [Shaw's]
vehicle when he drove back across the lanes." The court
further found that Shaw "safely passed the officer on
the right." Based on independent review of the video, we
discern no clear error with these factual findings. See
Watts, 334 Ga.App. at 771. Shaw did not drive in a
reckless manner and did not violate OCGA § 40-60-390.
Accordingly, this alleged violation cannot provide a valid
basis for Shaw's traffic stop. See Zeth, 320
Ga.App. at 141.
OCGA § 40-6-74 (a),  this statute concerns a driver's
failure to yield to emergency vehicles. "To violate the
statute, an individual must obstruct the roadway, thereby
preventing an emergency vehicle from proceeding upon its
route in pursuit of a fleeing suspect or other
emergency." Jackson v. State, 223 Ga.App. 27,
28 (1) (477 S.E.2d 28) (1996). Here, the video shows that
Shaw passed the patrol car in the far right lane, leaving two
other empty lanes open for the patrol car to proceed forward
unobstructed. Therefore, Shaw did not obstruct the roadway
and did not fail to yield the ...