author: Smith, Presiding Judge.

text:
    A00A2539.
    WEATHERBY et al. v. BARSK et al.
    (545 SE2d 701)
   Smith, Presiding Judge.

Steve Weatherby and Utopian Concepts, Inc., a corporation wholly owned by Weatherby (hereinafter collectively Weatherby), brought suit against Robert Barsk, a real estate developer, and two corporations in which Barsk is an officer, Stonewall Farms, Ltd. and Heritage Creek, Inc. (hereinafter collectively Barsk). Weatherby alleged that Barsk had breached an oral agreement under which Weatherby was to furnish certain services and Barsk was required to pay him ten percent of the value of the development property. Alternatively, Weatherby sought recovery under the theory of quantum meruit for services performed. Weatherby also sought attorney fees and expenses under OCGA § 13-6-11 for Barsk’s alleged bad faith.

Barsk answered, asserting several defenses. He denied the existence of any agreement; he asserted that even if such a contract existed, Weatherby was barred from recovering under the Statute of Frauds because it was not in writing; he alleged that Weatherby could not recover under a theory of quantum meruit because even if services were performed by Weatherby, they were of no benefit to Barsk; and he maintained that any services performed by Weatherby were performed either in Weatherby’s employment capacity as director of economic development for Greystone Power Corporation or in his volunteer capacity as vice chairman of the Douglas County Development Authority.

Barsk moved for summary judgment, which was granted on the grounds that recovery under the contract was barred by the Statute of Frauds; that Weatherby had failed to present evidence creating a material issue of fact regarding whether Barsk “requested, accepted, or authorized any alleged services” or whether any such services were performed on behalf of Greystone Power or the Douglas County Development Authority; and that Weatherby had failed to present any evidence of the value of the services he allegedly rendered. This appeal by Weatherby ensued. We conclude that the trial court erred in finding that the alleged contract was within the purview of the Statute of Frauds. We also find that Weatherby presented sufficient evidence to create a genuine issue of material fact with regard to whether Barsk requested, accepted, and authorized the services, whether the services were performed, and the capacity in which Weatherby performed them. We therefore reverse the trial court’s grant of summary judgment to Barsk.

The record shows that Barsk is a native of Sweden who moved to this country to pursue real estate investment. He owned certain parcels of land in Douglas County that he desired to develop. Weatherby was employed by Greystone Power, which sold electricity in Douglas County. He also served in a volunteer capacity as vice chairman of the Douglas County Development Authority. In addition, he was acquiring properties in east Douglas County as a personal venture, with a view toward eventually developing those properties.

The parties agree that they were introduced in 1992. They also agree that they had discussions concerning the acquisition and development of properties Barsk owned in Douglas County. But any agreement ends there.

Barsk presented an affidavit in which he stated that his dealings with Weatherby were solely in Weatherby’s capacities as a representative of Greystone Power or the Douglas County Development Authority. Weatherby, on the other hand, presented an affidavit in which he stated that he dealt with Barsk in his personal capacity and that these dealings were “outside the scope of [his] employment with Greystone Power” or his work for the development authority.

Barsk denied entering into any contract with Weatherby or authorizing Weatherby to perform any services, although he admitted having received “unsolicited suggestions” for the development and construction of a certain tract, which suggestions he believed were given in Weatherby’s capacity as a representative of Greystone Power. Weatherby, on tbe other hand, insists that Barsk “requested the services in issue; agreed to pay for such services”; and knew that he was performing them in his individual capacity because he “expressly discussed with Mr. Barsk the fact that I was performing these services in my personal capacity and to accomplish my personal business objectives.” He claims he devoted all his free time to the project and completed his contractual obligations, which included formulating and implementing development strategies for the property, conveying to Barsk the contracts necessary for assembling the tract in issue, negotiating a reduction in price on one parcel, negotiating the furnishing of site utilities and various site improvements, planning and negotiating the construction of a public road through the property, working on and procuring approval of zoning changes, and working on other facets of the property development, including its tax status.

1. The Statute of Frauds provides that “[a]ny contract for sale of lands, or any interest in, or concerning lands” is required to “be in writing and signed by the party to be charged therewith or some person lawfully authorized by him” in order to bind the promisor. OCGA § 13-5-30 (4). The services Weatherby claims to have performed under the contract with Barsk were not for the “sale of lands,” nor was he claiming “any interest in” lands. But the statutory language “concerning lands” raises the question of whether the alleged contract is within the purview of the statute. Weatherby contends it is not.

The parties have not cited to this court any case on all fours with this one, and we have found none. But we have reviewed cases involving oral contracts for services concerning land that have been held to be within the purview of the Statute of Frauds. This review persuades us that those cases involve the sale of land or conveyance of an interest in land. This case involves neither.

Barsk cites Shivers v. Barton & Ludwig, Inc., 164 Ga. App. 490 (296 SE2d 749) (1982) in support of his position that OCGA § 13-5-30 (4) is not ambiguous and has been interpreted by our courts as covering any contract concerning land. But Shivers clearly involved the question of whether a signatory to a limited partnership agreement was in fact the agent of a third-party nonsignatory to the agreement. The limited partnership was formed in part to buy and sell real property and to acquire interests in certain tracts of land. This court applied the predecessor statute to OCGA § 10-6-2 to hold that since the agreement to sell or buy real property must be in writing, an agency to execute an agreement for the sale of property must also be in writing. Id. at 492.

Barsk also cites Cherokee Falls Investments v. Smith, 213 Ga. App. 603 (445 SE2d 572) (1994), on which the trial court relied, in support of his position that recovery under the alleged oral contract here is barred by the Statute of Frauds. Cherokee Falls involved a written addendum to a contract for the sale of land. The addendum was relied upon by the plaintiff to establish the existence of a joint venture. Although the parties’ dealings in Cherokee Falls involved services, the parties also had dealings with each other involving various sales of land and interests in land. One section of the addendum provided that the defendant was to be paid five percent of lot sales by the venture. Id., at 604. The defendant contended that this mention of the joint venture was merely an agreement to agree upon the terms of a joint venture. Id. at 603. This court agreed, finding the addendum too indefinite to be enforceable. Id. at 605 (1). Finding that the addendum was part of a contract for the sale of land and that the addendum provision lacked certainty, this court held that it was unenforceable because “a court of equity will not decree the specific performance of a contract involving an interest in land unless there is a definite and specific statement of the terms of the contract.” (Citations and punctuation omitted; emphasis supplied.) Id.

The services Weatherby claims to have performed for Barsk under the alleged oral contract do not involve selling or buying the land in issue and do not involve his obtaining an interest in the land. Although the phrase “concerning land” appears on its face to be extremely broad, it has been interpreted more narrowly. It is well established that certain services “concerning land” are not subject to the Statute of Frauds. Real estate brokerage contracts and other contracts for commissions based on arranging the sale of lands, for instance, have long been held not to be within the Statute of Frauds. See, e.g., Stacey Realty v. Calvary Baptist Church, 188 Ga. App. 822, 824 (2) (374 SE2d 537) (1988); Pierce v. Deich, 81 Ga. App. 717 (59 SE2d 755) (1950); Cantrell v. Johnston, 74 Ga. App. 74, 78 (2) (38 SE2d 893) (1946). We find the services allegedly contracted for and performed by Weatherby to be more analogous to those in Stacey Realty, Pierce, and Cantrell than to those in Cherokee Falls. For that reason, and because they did not involve the sale of land or the conveyance of an interest in land, we conclude that the alleged oral contract was not subject to the Statute of Frauds and that the trial court erred in granting summary judgment to Barsk on that ground.

Decided February 28, 2001

Reconsideration denied March 30, 2001

2. Because we have concluded that the alleged oral contract was not required to be in writing, we need not consider whether part performance took it out of the Statute of Frauds. Since the alleged oral contract need not have been in writing, we must also reverse the trial court’s ruling that Weatherby was not entitled to recover damages for bad faith because he failed to show that an enforceable contract existed.

3. Even had this contract been covered by the Statute of Frauds, that statute is not a bar to relief in quantum meruit. Llop v. McDaniel, Chorey & Taylor, 171 Ga. App. 400, 403 (4) (320 SE2d 244) (1984). And we cannot agree with the trial court that Weatherby did not present sufficient evidence to raise questions of fact regarding whether Barsk requested, authorized, or accepted the services he alleges he performed, whether those services had any value to Barsk, or whether those services were performed in his individual capacity rather than as an agent of Greystone Power or the Douglas County Development Authority. Weatherby’s affidavit establishes all those facts.

Barsk relies upon Thornton v. Carpenter, 222 Ga. App. 809 (476 SE2d 92) (1996) to support his assertion that his denial that Weatherby performed the services or that he authorized or accepted them was sufficient to pierce Weatherby’s pleadings in this regard. That reliance is misplaced. Thornton involved the simple denial of an agency relationship. It has long been established that the denial of an agency relationship, made by a purported party thereto, is a statement of fact sufficient to support a motion for summary judgment when it is uncontradicted. Id. at 812 (2) (a). In this case, the statement was not a denial of agency, nor was it uncontradicted.

While it is true that Weatherby’s statements in his affidavit may be self-serving as well as conclusory, the same may be said of Barsk’s statements to the contrary in his own affidavit. If Weatherby’s statements may not be considered as establishing those facts, neither may Barsk’s statements be considered as piercing the allegations of Weatherby’s complaint. Weatherby presented ample evidence to create genuine issues of material fact regarding his right to recover under quantum meruit, and the trial court erred in granting summary judgment to Barsk on this ground.

Judgment reversed.

Johnson, P. J., and Phipps, J., concur.

       Weatherby merely alleges that he was to be paid a percentage of the value of the lands involved.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A01A0414, A01A0415.
    BETHEA et al. v. CORALLI et al.; and vice versa.
    (546 SE2d 542)
   Phipps, Judge.

Genevieve Bethea and her husband, Harvey, brought this action against her cardiologist, Dr. Richard Coralli, and his medical partnership, The Atlanta Heart Group, P.C. (collectively referred to as “Coralli”). The Betheas seek to recover damages for injuries to Mrs. Bethea based on theories of common law fraud and violation of Georgia’s informed consent statute (OCGA § 31-9-6.1). The trial court granted Coralli’s motion for directed verdict on the fraud theory only. The jury then returned a verdict in favor of Coralli. In Case No. A01A0414, the Betheas appeal. They challenge the trial court’s application of Georgia’s informed consent law and various of its jury instructions. In Case No. A01A0415, Coralli cross-appeals the court’s partial denial of its motion for directed verdict. Because the trial court committed no error in its application of the law or in its jury charges, we affirm the judgment entered on the jury verdict and dismiss the cross-appeal as moot.

Mrs. Bethea’s internist referred her to Dr. Coralli because of symptoms she reported. Because Mrs. Bethea had risk factors suggestive of coronary artery disease, Dr. Coralli asked her to perform a treadmill test. According to Dr. Coralli, the test had to be discontinued after several minutes because Mrs. Bethea experienced chest pain and profound shortness of breath. As a result, he recommended that she submit to a cardiac catheterization the following day. She agreed. During the catheterization, cholesterol plaque dislodged from her arterial walls and was carried through her bloodstream to her brain and kidneys, causing her to suffer a stroke and incur permanent injuries including vision problems.

1. The Betheas complain of the trial court’s grant of Coralli’s motion for directed verdict on the fraud count of their complaint and of the court’s refusal to give requested jury instructions relating to that count.

The trial focused on whether Dr. Coralli made misrepresentations to the Betheas concerning the availability of diagnostic procedures less invasive than a cardiac catheterization. OCGA § 31-9-6.1 (a) states that any person who undergoes certain surgical or diagnostic procedures shall be provided various information. It is undisputed that a cardiac catheterization is a diagnostic procedure to which subsection (a) applies. Subsection (a) (5) requires that the patient be informed in general terms of “[t]he practical alternatives to [the] proposed surgical or diagnostic procedure which are generally recognized and accepted by reasonably prudent physicians.” Before submitting to the catheterization, Mrs. Bethea signed an informed consent form documenting that she had been informed that there were no practical alternatives to the catheterization. Her husband testified that he had been particularly concerned that an invasive procedure was being ordered, had asked Dr. Coralli if anything else could be done, and had been told no. According to the Betheas’ medical expert, Dr. Coralli could have employed other, noninvasive diagnostic studies such as a thallium or radio nuclide scan. According to Dr. Coralli and his medical experts, the less invasive procedures would not have resulted in a reliable diagnosis of Mrs. Bethea’s condition.

The trial court ruled that the Betheas have no viable claim against Coralli for fraud, based on OCGA §§ 31-9-6 (d) and 31-9-6.1 (d). OCGA § 31-9-6.1 (d) provides that a failure to comply with the requirements of OCGA § 31-9-6.1 shall not constitute a separate cause of action but may give rise to an action for medical malpractice. Under OCGA § 31-9-6 (d), a fraudulent misrepresentation of material facts invalidates the consent.

In Albany Urology Clinic v. Cleveland, our Supreme Court held that prior to enactment of the informed consent statute, Georgia physicians were not required to disclose to their patients any of the risks associated with a particular medical treatment or procedure, but that a physician did then and does now have a common law duty to answer truthfully a patient’s questions regarding medical or procedural risks.

In reliance on this aspect of the Albany Urology decision, the Betheas argue that because Mr. Bethea specifically asked about the availability of alternative procedures, Dr. Coralli violated his common law duty to speak the truth and therefore can be held liable for fraud.

Even if we were to accept this argument, it would not benefit the Betheas here. This is so because the trial court did charge the jury, relative to the Betheas’ claim against Coralli for violation of the informed consent statute, that Mrs. Bethea’s consent would not be valid if it was obtained through fraudulent misrepresentations by Dr. Coralli. By its verdict, the jury necessarily found that Dr. Coralli did not commit fraud. Consequently, the issue of fraud was resolved against the Betheas.

2. The Betheas contend that the court erred in charging the jurors that they were to determine Coralli’s liability based upon information available to and known by Dr. Coralli at the time the procedure was performed rather than on hindsight.

The hindsight charge “becomes appropriate in a medical malpractice case where the evidence raises an issue as to whether the negligence claim is based on later acquired knowledge or information not known or reasonably available to the defendant physician at the time the medical care was rendered. (Cit.)” [Cit.]

Through expert medical testimony, as well as argument of counsel, the Betheas raised such an issue. They sought to show that Dr. Coralli should not have performed the catheterization based on the fact that the procedure revealed no evidence of significant heart disease. Therefore, the complained-of charge was authorized.

3. Because there was evidence that Mrs. Bethea had peripheral vascular disease which may have contributed to vision problems suffered as a result of her stroke, the court did not err in charging the jury that the Betheas could not recover for injuries or disabilities not connected with the acts or omissions of Coralli and not proximately caused thereby.

4. The court committed no error harmful to the Betheas in charging the jury on OCGA § 31-9-6.1 (d).

Under subsection (d), a failure to comply with the requirements of OCGA § 31-9-6.1 may give rise to an action for medical malpractice upon a showing:

(1) That the patient suffered an injury which was proximately caused by the surgical or diagnostic procedure; (2) That information concerning the injury suffered was not disclosed as required by this Code section; and (3) That a reasonably prudent patient would have refused the surgical or diagnostic procedure or would have chosen a practical alternative to such proposed surgical or diagnostic procedure if such information had been disclosed.

The Betheas do not dispute that OCGA § 31-9-6.1 (a) (3) requires disclosure of generally recognized and accepted material risks that could result from the proposed procedure. Mrs. Bethea was apprised of the risks of the procedure. Their claim is that she would not have chosen it if she had been informed of noninvasive alternatives as required by OCGA § 31-9-6.1 (a) (5). In pertinent part, the trial court charged the jury that if Dr. Coralli did not make one or more of the disclosures required by the informed consent statute, then in order for the Betheas to recover, they must prove that Mrs. Bethea suffered an injury which was proximately caused by the catheterization and that a reasonably prudent person would have refused such procedure or chosen a practical alternative if such information had been disclosed. The trial court thus charged the jury on requirements imposed by parts (1) and (3) of subsection (d) while omitting any reference to requirements contained in part (2). Although it is debatable whether part (2) of subsection (d) applies in this case, unquestionably parts (1) and (3) apply. Therefore, no ground for reversal appears.

Decided March 2, 2001

Reconsideration denied March 30, 2001.

Bird & Mahrey, William Q. Bird, Karin A. Middleton, for appellants.

Love & Willingham, Robert P. Monyak, Anna B. Fretwell, for appellees.

Judgment affirmed in Case No. A01A0414. Appeal dismissed in Case No. A01A0415.

       See Smith v. Wilfong, 218 Ga. App. 503, 506-507 (2) (462 SE2d 163) (1995).

       272 Ga. 296, 298 (1) (528 SE2d 777) (2000).

        Horton v. Eaton, 215 Ga. App. 803, 807 (4) (452 SE2d 541) (1994).


author: Eldridge, Judge.

text:
    A01A0570.
    HESTON v. LILLY.
    (546 SE2d 816)
   Eldridge, Judge.

Tracey Heston aggravated a pre-existing left knee injury, which she had suffered several days prior to a collision in which she was rear-ended in a motor vehicle collision with Thomas Malcolm Lilly. In Lilly’s answer, he admitted that he had been “negligent” in causing the collision between their vehicles, but in the same sentence of his answer denied that Heston was injured in the collision and that “the accident was the proximate cause of any alleged injury.” On trial of the case, the jury returned a defendant’s verdict.

Plaintiff appeals from the denial of her motion for new trial where she contended that the trial court erred in giving the standard pattern jury instruction on negligence, including proximate cause, when the defendant contested causation of the injury and aggravation of any pre-existing injury from the collision. At trial and on appeal, plaintiff sought to have defendant’s admission in his answer that he was “negligent” in causing the collision but in denying proximate cause and damages treated as an admission of liability so that the jury had only to determine the amount of damages for the injury. Thus, plaintiff argued to the jury that the defendant admitted negligence. Under such facts and circumstances, the trial court did not err in giving the standard charge on negligence, because the elements of causation of injury and damages are two of the four essential elements necessary to constitute negligence that plaintiff had to prove and were factually in dispute. Also, the plaintiff argued that such admission of “negligence” constituted a full admission of liability, requiring the trial court to charge on the four elements of negligence so that the jury could decide what had been admitted and what plaintiff had left to prove. The plaintiff submitted no request to charge on such issue, made no exception to the charge on negligence, and did not object when the defendant argued proximate cause in closing argument. Therefore, the trial court did not err in denying the motion for new trial.

1. The defendant admitted in his answer that he negligently caused the collision, while at the same time contesting that plaintiff’s injuries were proximately caused by the collision and that plaintiff suffered any personal injuries, i.e., damages from the collision, which allowed him to introduce evidence on such issues of proximate cause and damages without being estopped to deny such issue. Aycock v. Calk, 228 Ga. App. 172, 173 (491 SE2d 383) (1997). Thus, by admission in judicio, the defendant expressly admitted a duty and a breach of such duty, which a lay person thinks of as negligence, but in his answer he also expressly set up a defense of contested causation and damages. Id. at 173. Under the Civil Practice Act, pleadings are to be construed liberally and reasonably to achieve substantial justice consistent with the statutory requirements of the CPA. Skelton v. Skelton, 251 Ga. 631 (1) (308 SE2d 838) (1983); Jacobs v. Shaw, 219 Ga. App. 425, 427 (2) (465 SE2d 460) (1995); Bosworth v. Cooney, 156 Ga. App. 274, 279 (2) (274 SE2d 604) (1980); Tahamtan v. Dixie Ornamental Iron Co., 143 Ga. App. 561, 562 (239 SE2d 217) (1977). The defendant in his answer did not in fact admit all the four elements of legal negligence, despite what plaintiff argues to the contrary. However, to establish legal negligence, four essential elements must be proved or admitted, which the defendant did not do. Defendant contested the last two elements of negligence in his answer.

To state a cause of action for negligence in Georgia, the following elements are essential: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty. Lee Street Auto Sales v. Warren, 102 Ga. App. 345 (1) (116 SE2d 243) (1960).

(Punctuation omitted.) Bradley Center v. Wessner, 250 Ga. 199, 200 (296 SE2d 693) (1982); see also Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 730 (1) (333 SE2d 829) (1985); Sutter v. Hutchings, 254 Ga. 194, 196-197 (1) (327 SE2d 716) (1985); Tuggle v. Helms, 231 Ga. App. 899, 901 (2) (499 SE2d 365) (1998). Thus, the defendant admitted the first two elements necessary to establish legal negligence, but denied the last two elements as a defense, forcing plaintiff to prove the proximate cause of her injury and the damages. Although the defendant used “negligence” in his answer to indicate an admission of duty and breach of such duty, the remainder of his answer made clear that he was contesting the issues of proximate cause and damages as notice pleadings. Since the defendant, in the very same sentence that he admits negligence, denies causation and damages, then the plaintiff relinquished no right to rely upon the legal definition of negligence. From the pleadings, plaintiff had actual notice in the pleadings that the answer plainly stated that the last two elements of causation and damages were in dispute.

When admissions in judicio conflict with evidence on the merits, the trial court, [on trial], can either treat such evidence as amending the pleadings or not allow the conflicting evidence to be admitted so that the admission [s] in judicio govern [ ] until formally withdrawn by amendment.

(Citation omitted.) Aycock v. Calk, supra at 173. In this case, plaintiff made no objection to the introduction of evidence of plaintiff’s preexisting injury, waiving such objection. See Summerlot v. Crain-Daly Volkswagen, 238 Ga. 546, 547 (1) (233 SE2d 749) (1977); Walker v. Jack Eckerd Corp., 209 Ga. App. 517, 518 (1) (434 SE2d 63) (1993); Stephens v. Tate, 147 Ga. App. 366, 367 (1) (249 SE2d 92) (1978).

Further, the plaintiff failed to move for a directed verdict on the first two elements of negligence, duty and breach of duty, which the defendant had clearly admitted in judicio. Hambrick v. Makuch, 228 Ga. App. 1 (491 SE2d 71) (1997).

2. Plaintiff complains in her motion for new trial that the verdict was in error, because the trial court confused the jury by charging on negligence. However, at the conclusion of the charge when called upon by the trial court for her exceptions, the plaintiff through her attorney stated, “[n]o exceptions to the charge as given.” Such constitutes an express waiver of alleged error in charge. See OCGA § 5-5-24 (a); Pierce v. Pierce, 241 Ga. 96, 100 (4) (243 SE2d 46) (1978).

Decided March 5, 2001

Reconsideration denied March 30,2001.

Van C. Wilks, for appellant.

John A. Allen, for appellee.

Even if the alleged error had not been waived, the charge as to proximate cause and injury was a correct statement of the law and was necessary under the facts and circumstances of this case where plaintiff had sustained an injury to her knee several days prior to the collision and where there was a factual dispute as to whether the collision caused or aggravated the alleged injury. See Bradley Center v. Wessner, supra at 200; Central Anesthesia Assoc. v. Worthy, supra at 730; Levine v. Choi, 240 Ga. App. 384, 385 (1) (522 SE2d 673) (1999); Tuggle v. Helms, supra at 901-902; Hambrick v. Makuch, supra at 3-4 (2) (b).

This is not a case in which the charge on the elements of negligence comes within OCGA § 5-5-24 (c), because the charge did not constitute a substantial error of law under the facts and circumstances of this case. See Gunn v. Dept. of Transp., 222 Ga. App. 684, 686 (1) (476 SE2d 46) (1996).

3. The trial court did not err in denying a motion for new trial.

A trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict. . . . Evidence that plaintiff’s injuries were pre-existing is sufficient for a jury to find the accident did not proximately cause the injuries.

(Citations and punctuation omitted.) Levine v. Choi, supra at 384-385 (D.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.


author: Barnes, Judge. Pope, Presiding Judge, RUFFIN, Judge, Eldridge, Judge,

text:
    A00A1885.
    THE STATE v. GIBBONS et al.
    (547 SE2d 679)
   Barnes, Judge.

Pursuant to OCGA § 5-7-1 (a) (4), the State appeals the trial court’s grant of a motion to suppress filed by Michael Stinemetz and Vincent Gibbons. The State contends the trial court erred by finding that the state trooper impermissibly expanded the scope of the traffic investigation and also erred by failing to find that the trooper had a reasonable suspicion to request Stinemetz’s consent to search his person. We disagree and affirm.

1. In reviewing a trial court’s decision on a motion to suppress, an appellate court’s responsibility is to ensure that there was a substantial basis for the decision. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). Our Supreme Court has established three guiding principles for reviewing such rulings:

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 evidence to support it. 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.

(Citation and punctuation omitted; emphasis in original.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). Further,

[determining the credibility of witnesses and the weight to be given their testimony is a . . . power that lies solely with the trier of fact. The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony.

Id. at 56 (3).

2. Construed most favorably toward upholding the trial court’s findings and judgment, the evidence shows that a Georgia State Trooper pulled over Stinemetz and Gibbons for a seat belt violation. The traffic stop was recorded by a videocamera in the trooper’s cruiser, and the trial court viewed this videotape during the motion to suppress hearing. This tape shows that the state trooper immediately asked Stinemetz “twenty questions” that were unrelated to the reason he pulled him over. A transcript of their encounter follows:

Q. How ya doing? May I see your driver’s license please? I stopped you because you didn’t have your seat belt on, but I see you got it on now.
A. [Unintelligible.] . . . better put it on.
Q. Y’all didn’t have ‘em on did you? Where are y’all heading to?
A. Huh?
Q. Where y’all heading to?
A. Back to Nashville.
Q. Where you been?
A. We went down to Atlanta to visit some friends. They had a Memorial Day party down there.
Q. Step back. [Unintelligible.] ... I can’t hardly hear you.
[Stinemetz complies by getting out of the car, and he and the officer stand in front of the patrol car directly in front of the videocamera.]
A. Yeah, they had a Memorial Day party with some friends. Were down there visiting, today.
Q. Where you work at?
A. Upchurch Construction.
[Stinemetz tucks his shirt in and places his left hand in his left pocket in a natural, habitual manner.]
Q. Take your hand out of your pocket for me. You work where now?
A. Upchurch Construction.
Q. What do you do for them?
A. Drive a dump truck.
Q. Do you have a commercial driver’s license?
A. Yes.
Q. Whose car?
A. Mine, well, it’s in my Mom’s, but it’s just mine.
Q. Who is this gentleman you have with you?
A. Uh, he’s just a friend of mine. We went down to visit some friends today.
Q. What’s his name?
A. Mario.
Q. What’s his last name?
A. Don’t know his last name. [Unintelligible.]
Q. How long you known him?
A. About a year, probably.
Q. Where y’all go to school at?
A. Well, we went to Hunter’s Lane.
Q. What’s that?
A. High school. I mean I been out for awhile. I known his cousin. I just known him about a year.
Q. Whose, where did you go to in Atlanta?
A. North, North Town apartments.
Q. How long y’all been down there?
A. Just a couple of hours. Down there visiting some friends. Did I do something wrong or something?
Q. Well, you’re not wearing your seat belt. Georgia’s got a seat belt law.
A. Yeah. [Unintelligible.] ... he had his on. [Unintelligible.] ... we saw you [Unintelligible.] . . . so I put it on.
Q. That’s what you did wrong. But, on the seat belt violation, that’s the reason I stopped you.
A. Okay.
Q. Do you have business with these people in the other car? Do /all know them?
A. No, uh, uh. I think the cop had them pulled over when we pulled up here.
Q. How long were /all in Atlanta?
A. Just a couple of hours.
Q. Whose friends are they?
A. His friends, his cousin’s friends.
Q. Did his cousin go too?
A. No. Uh-uh.
Q. Do you have anything in your pockets?
A. No, uh-uh.
Q. Do you mind if I search your pockets?
A. Uh. . .
Q. Do you have a knife or a gun or anything?
[Stinemetz reaches for pockets in searching, responsive manner, and officer prevents him from placing hands in his pockets.]
Q. Do you mind if I search your pocket?
[Trooper places hand on outside of Stinemetz’s pocket and feels outside of it.]
A. Well, I mean . . .
Q. It’s for my safety and yours too. Do you have anything in your pockets?
A. No, not really.
Q. Do you mind if I search your pockets?
A. No.
Q. You don’t mind? What you got here? A pager?
[After this statement, trooper places hand inside right pocket and removes a pager.]
A. Yeah. Uh-huh.
Q. What you got in this pocket? Turn for me.
[Trooper places hand in left pocket.]
Q. You don’t have a hypodermic in there or nothing do you?
[Trooper removes plastic pill vial.]
Q. What’s in the vial here?
A. Nothing. Nothing, now.
Q. Cocaine residue? Is that what it is?
[Trooper handcuffs Stinemetz and places him in the back of his patrol car.]

After placing Stinemetz in the patrol car, the state trooper questioned Gibbons about their trip and how they knew each other. Gibbons’ answers agreed substantially with what Stinemetz had said. The trooper then arrested Gibbons for possession of the substance in the vial found in Stinemetz’s left pants pocket. The trooper then performed an inventory of Stinemetz’s car and found a package of cocaine in the trunk.

In a preliminary hearing held three months after the appellants’ arrest, the trooper’s testimony about his encounter with the appellants varied from both the videotape and his later testimony in the motion to suppress hearing. The trooper initially claimed that Stinemetz could not produce a valid driver’s license, but later admitted in the motion to suppress hearing that he had. He also testified in the preliminary hearing that he asked for Stinemetz’s consent to search the car and his person after questioning Gibbons about their itinerary and getting a “completely different” story. The videotape shows the trooper never asked for consent to search the car, that he did not question Gibbons before asking for consent to search Stinemetz’s pockets, and that the appellants’ stories were substantially similar. In the preliminary hearing, the trooper claimed that he asked to search Stinemetz for officer “safety,” but when asked what made him believe he was in jeopardy, the officer replied, “I don’t know. I don’t know the answer to that. Just twenty years of law enforcement you sometimes get an uneasy feeling about certain people.” In the later motion to suppress hearing, the officer claimed that he asked to search because he saw bulges in Stinemetz’s pockets and he “didn’t know if it was a knife or a gun.”

The trial court found that by asking questions unrelated to the seat belt violation, the trooper exceeded the authorized scope of the original stop. Therefore, the trial court found that the trooper’s detention of appellants was impermissible because he had no reasonable articulable suspicion for starting the new investigation. Because the evidence was seized during the unlawful detention, the trial court granted the motion to suppress.

An officer who questions and detains a suspect for reasons other than those connected with the original purpose of the stop exceeds the scope of permissible investigation unless he has “reasonable suspicion” of other criminal activity. Simmons v. State, 223 Ga. App. 781, 782 (2) (479 SE2d 123) (1996). This reasonable suspicion must be based on more than a subjective, general suspicion or hunch. Holden v. State, 241 Ga. App. 524, 525 (527 SE2d 237) (1999). The detention must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the detention, and the trooper must have some basis from which the court can determine that the detention was neither arbitrary nor harassing. Id.

In this case, the trooper admitted that he held Stinemetz’s driver’s license while asking questions that were not related to the seat belt violation. According to the trooper, Stinemetz was “not free to go” while he asked these questions. The tape shows that when Stinemetz, who was obviously puzzled by the trooper’s detailed quizzing about his whereabouts, asked what he had done wrong, the trooper reminded him about the seat belt violation and then launched into his unrelated investigation once again.

The trial court did not err by concluding that the detention was unauthorized. Simmons v. State, supra, 223 Ga. App. at 782; Smith v. State, 216 Ga. App. 453, 454-455 (2) (454 SE2d 635) (1995). Because Stinemetz’s consent to search his person was the product of this illegal detention, it was not valid. VonLinsowe v. State, 213 Ga. App. 619, 622 (2) (445 SE2d 371) (1994). As the cocaine residue in the bottle and the cocaine in the trunk were located as a result of the illegal search of Stinemetz’s person, the trial court did not err by granting the motion to suppress this evidence.

Judgment affirmed.

Blackburn, C. J., concurs. Pope, P. J., Johnson, P. J., Smith, P. J., Ruffin, Miller, Ellington and Phipps, JJ., concur and concur specially. Andrews, P. J., Eldridge and Mikell, JJ., dissent.

Pope, Presiding Judge,

concurring specially.

I concur in the majority opinion but write separately to stress two points.

First, the trial court found that the officer continued to detain the defendant during the questioning and during the request for consent to search his person. The court stated, “Rather than ticket Stinemetz or release him, the officer decided to conduct a drug investigation.” It is this continued detention that makes the questioning and request to search without reasonable suspicion of criminal activity impermissible. State v. Sims, 248 Ga. App. 277 (546 SE2d 47) (2001).

Second, an officer who has completed a traffic stop may question the driver on another topic and request consent to search so long as the driver is not still being detained, i.e., the encounter is consensual.

As stated in Sims,

The Fourth Amendment protects a person’s right to be secure against unreasonable searches and seizures. The “ ‘touchstone of the Fourth Amendment is reasonableness.’ Florida v. Jimeno, 500 U. S. 248, 250 (111 SC 1801, 114 LE2d 297) (1991).” Ohio v. Robinette, 519 U. S. 33, 39 (117 SC 417, 136 LE2d 347) (1996). “Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.” Id. And, the Supreme Court has consistently rejected bright-line rules in applying this test. Id. In deciding whether the question about drugs and weapons, standing alone, was unreasonable, we note that “mere police questioning does not constitute a seizure.” Florida v. Bostick, 501 U. S. 429, 434 (111 SC 2382, 115 LE2d 389) (1991). The Supreme Court has made clear that “[s]o long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.” (Citation and punctuation omitted.) Id.; Simmons v. State, 223 Ga. App. 781, 783 (2) (479 SE2d 123) (1996) (if the police questioning was consensual, then questions on an unrelated topic after the conclusion of a valid traffic stop are allowed). Second, with regard to the consent to search, “one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” (Citations omitted.) Schneckloth v. Bustamonte, 412 U. S. 218, 219 (93 SC 2041, 36 LE2d 854) (1973). See also Dean v. State, 250 Ga. 77, 80 (2) (a) (295 SE2d 306) (1982). In deciding whether consent to search is valid, the Supreme Court has made clear that the sole test is whether the consent was voluntary. Robinette, 519 U. S. at 40. And, if the consent is voluntary, an officer may obtain consent to search a car following the conclusion of a valid traffic stop, without reasonable suspicion of criminal activity. Id. Finally, “ ‘voluntariness is a question of fact to be determined from all the circumstances.’ ” (Citation omitted.) Id. In Robinette, the defendant was stopped for speeding, and after the stop was completed and his license returned, the officer asked him whether he had any drugs or weapons. Robinette, 519 U. S. at 36. Robinette answered no, after which the officer asked if he could search the car. Robinette consented. Id. The Ohio Supreme Court had ruled that the evidence subsequently discovered in the car should be suppressed because the search resulted from an unlawful detention because Robinette had not been told that he was free to go. Id. The Supreme Court reversed and held that the Fourth Amendment did not require such a bright-line test. Robinette, 519 U. S. at 39. Rather the test to be employed is whether under the totality of the circumstances the consent was voluntary. And the officer’s subjective intent is immaterial to the question. Id. at 38 (citing Whren v. United States, 517 U. S. 806 (116 SC 1769,135 LE2d 89) (1996)). However, as is shown in Migliore [v. State, 240 Ga. App. 783 (525 SE2d 166) (1999),] and Smith v. State, 216 Ga. App. 453, 454-455 (454 SE2d 635) (1995), if the officer continues to detain the subject after the conclusion of the traffic stop and interrogates him or seeks consent to search without reasonable suspicion of criminal activity, the officer has exceeded the scope of a permissible investigation of the initial traffic stop. This is so because “a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.” (Citations omitted.) Terry v. Ohio, 392 U. S. 1, 18 (88 SC 1868, 20 LE2d 889) (1967). And, “(t)he scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.” Id. at 19. As stated in State v. Blair, 239 Ga. App. 340, 341 (521 SE2d 380) (1999), “An officer who questions and detains a suspect for other reasons exceeds the scope of permissible investigation unless he has ‘reasonable suspicion’ of other criminal activity.”

(Footnote and emphasis omitted.) Sims, 248 Ga. App. at 278-280.

To reiterate, “So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.” (Citation and punctuation omitted.) Florida v. Bostick, 501 U. S. at 434. Here, like in Sims, the trial court found that the defendant was detained without justification when the officer began to question the defendant about drugs and request consent to search. Therefore, the continued encounter was not consensual. Without reasonable suspicion to justify the continued detention, the subsequent consent to search was the product of this impermissible seizure. Accordingly, the trial court did not err in suppressing the evidence obtained in the search.

I am authorized to state that Presiding Judge Johnson and Judge Ellington join in this special concurrence.

RUFFIN, Judge,

concurring specially.

I concur with the majority opinion and with Presiding Judge Pope’s concurring opinion. I write separately to further address why a police officer who stops a motorist for a routine traffic violation is not permitted to expand the detention into a fishing expedition for evidence of unrelated offenses.

The dissent posits that the officer was permitted to interrogate Stinemetz concerning a host of matters, unrelated to the seat belt violation, for the ostensible purpose of protecting the public and preventing crime. Although states clearly have a legitimate interest in preventing crime, “the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”

The initial intrusion in this case was justified by Stinemetz’s violation of the seat belt statute. Obviously, the State’s interest in enforcing the statute outweighed Stinemetz’s right to proceed along the roadway without any interference. In addition, the United States Supreme Court has recognized that once a motorist is detained for a routine traffic violation, the investigating officer has a right to inspect the driver’s license and registration papers and to ask him to get out of the car. Finally, under such circumstances, the officer would have been justified in asking Gibbons questions necessary to prosecute the seat belt violation and to issue him a citation. Again, the State’s interest in prosecuting the observed seat belt violation clearly outweighed Stinemetz’s right to be free from such questioning.

The record does not contain any evidence, however, which justified the officer’s interrogation into other matters, and the United States Supreme Court has proscribed such conduct. In Knowles v. Iowa, an officer stopped a motorist for speeding. The officer issued a citation and thereafter searched the driver’s car under the guise of a “ ‘search incident to citation.’ ” The Court found that the search violated the driver’s Fourth Amendment rights. Significantly, the Court reasoned that

[office [the driver] was stopped for speeding and issued a citation, all the evidence necessary to prosecute that offense had been obtained. No further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car.

Though the search at issue in Knowles may be considered by many a more serious intrusion than the interrogation at issue here, the reasoning employed by the Court is nonetheless applicable. The officer only had probable cause to stop the driver for a specific traffic violation, and the permissible scope of the detention was limited to investigating and prosecuting only that violation.

It does not matter, as the dissent here suggests, that the inappropriate questioning in this case took place “in the middle of a valid traffic stop.” The officer’s probing interrogation was unrelated to the safety belt violation, no matter when it occurred. Moreover, the dissent assumes that because the stop was valid at its inception, it was valid until the officer issued Stinemetz a citation. This assumption, however, ignores the fact that the continued detention became illegal because of the inappropriate questioning. If we were to adopt , the position taken by the dissent, then officers could merely delay issuing a citation while they conduct a fishing expedition for evidence of criminal activity. That is, after all, exactly what happened in this case.

Finally, I note that the Eleventh Circuit considered a case with almost identical facts and reached the same conclusion that the majority has here. In United States v. Pruitt, the court considered the propriety of an officer’s interrogation of a driver during a routine traffic stop for speeding. As in this case, once the officer in Pruitt advised the driver of the reason for the stop, he did not issue a citation, but instead began questioning him on unrelated matters such as where his family resided and how he was employed. The officer further “postpon [ed] the writing of [the traffic] ticket,” while attempting to determine whether he possessed any contraband. The court concluded that the Fourth Amendment did not authorize the officer’s extended interrogation into unrelated matters:

Lengthening the detention for further questioning beyond that related to the initial stop is permissible in two circumstances. First, the officer may detain the driver for questioning unrelated to the initial stop if he has an objectively reasonable and articulable suspicion illegal activity has occurred or is occurring. Second, further questioning unrelated to the initial stop is permissible if the initial detention has become a consensual encounter.

In Pruitt, as in this case, the circumstances did not permit such extended detention. There, the officer had no “objectively reasonable and articulable suspicion” that the driver committed any offense other than the traffic violation, and because the officer had not returned the driver’s license, the initial detention had not become a consensual encounter. Relying on Knowles, the court concluded that the “ ‘fishing expedition’ . . . [was] simply irrelevant, and constitute[d] a violation of Terry .” reach the same conclusion here.

I am authorized to state that Presiding Judge Smith, Judge Miller and Judge Phipps join in this special concurrence.

Eldridge, Judge,

dissenting.

To me, the majority amply demonstrates how far afield we have gotten through the application of the erroneous analysis contained in Smith v. State, wherein this Court held that during a valid traffic stop, an officer cannot ask traffic law enforcement questions which are unrelated to the specific traffic violation that produced the stop. Now, under Smith — as it is being applied herein and elsewhere — perfectly reasonable general investigative questions that this Court has accepted and which have been routinely asked for years are cause for suppression as somehow violative of Terry v. Ohio As was testified to in this case by the 17-year veteran of the Georgia State Patrol, “[t]he questions that I asked him [Gibbons] were questions I ask of many, many people. . . . I’ve addressed them to a lot of people.” In my view, such routine, general investigative questions are still permissible during the lawful course of a valid traffic stop, and Smith v. State should be overruled.

1. In Terry v. Ohio, the United States Supreme Court held that:

We must decide whether at that point it was reasonable for Officer McFadden to have interfered with petitioner’s personal security as he did [the pat-down]. And in determining whether the [pat-down] seizure and search were “unreasonable” our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.

This Court in Smith v. State extracted the above Terry pat-down analysis and applied it to a valid traffic detention:

we must determine “whether the officer’s action (in pulling Smith over) was justified at its inception, and whether (the detention) was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, [supra at 20].

Based thereon, this Court reversed in Smith because the defendant was stopped for failure to maintain a lane/DUI investigation, and in the midst of such, the investigating officer asked Smith whether he possessed drugs: “the officer proceeded to ask Smith questions that did not relate to his suspicion that Smith was driving under the influence and that did not relate to any traffic violations, but instead probed into Smith’s possession of contraband.” We held that “[a]t the point the officer initiated this later probe, he went beyond the permissible scope of the investigation and his further detention of Smith went beyond that permitted by Terry and its progeny.”

Since then, Smith has been cited for the idea that, without articulable suspicion arising during the course of a lawful stop, an officer cannot ask traffic law enforcement questions unrelated to the specific traffic violation that caused the stop and to do so somehow creates a Terry violation.

However, as the Eleventh Circuit clarified and held just this year,

a police officer’s questioning, even on a subject unrelated to the purpose of the stop, is not itself a Fourth Amendment violation. Mere questioning is neither a search nor a seizure. . . . [T]he issue regarding unrelated questions concerns not the content of the questions, but their impact on the duration of the stop. . . . Therefore, only unrelated questions which unreasonably prolong the detention are unlawful; detention, not questioning, is the evil at which Terry’s prohibition is aimed.

Contrary to our holding in Smith, questions asked during a valid traffic stop are not confined solely to the specific violation that produced the stop, but may be “reasonably related” to the purpose for the stop, which purpose includes legitimate traffic law enforcement concerns. The issue with regard to Terry is whether such questions “unreasonably prolong” an otherwise valid detention.

In that regard and since the underlying purpose of all Terry stops, traffic or otherwise, is to protect the public and prevent crime, reasonable general investigative questions have always been permitted during valid traffic stops, regardless of the specific traffic offense that caused the stop, i.e., questions about travel plans, itinerary, ownership of the vehicle, information on passengers, and followup questions based on conflicting answers and any suspicious circumstances which may arise. When, as in this case, a driver has been lawfully detained for a traffic violation, these general investigative questions are minimally intrusive and do not unduly prolong the lawful detention.

Also, the authority of an officer to ask a drug-related question during a valid traffic stop for speeding has been recognized: “Are you carrying any illegal contraband in your car? Any weapons of any kind, drugs anything like that?” Such simple inquiry is “reasonably related” to the legitimate traffic enforcement safety concern of ridding our highways and interstates of the use of illegal narcotics and weapons; is minimally intrusive; and does not prolong an already valid detention. During the course of a valid stop, such question is “not unconstitutionally intrusive in light of the problem of interstate drug traffic.” So too, during an authorized traffic stop, the Fourth Amendment is not violated merely by requesting consent to search a vehicle for drugs.

Similarly, regardless of the specific violation which causes a valid traffic stop, an officer may inquire into the status of a driver’s license, insurance, and tag. Such investigative inquiries, while not directly related to the violation which produced the stop, are “reasonably related” to the State’s “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles [and] that these vehicles are fit for safe operation.” As such, these investigative inquiries do not “unreasonably prolong” a valid detention.

The majority cites as dispositive State v. Sims and the Eleventh Circuit case of United States v. Pruitt. But I suggest the application of these cases to the instant case demonstrates how very far we have come from legitimate Terry analysis.

In both Pruitt and Sims, the evidence showed that the officer had completed his investigation, had written out the tickets, and had given them to the respective drivers. The officers in each case then specifically required the driver to remain for 15 or 20 minutes after the ticketing in order for the officer to conduct a “fishing expedition” and investigate matters other than the reasons for the traffic stops. From such concrete evidence, it was not difficult to conclude that the officers’ subsequent inquiries unreasonably prolonged the initial detention.

However, in this case, the officer had just stopped Gibbons; he had not yet ticketed Gibbons for the seat belt violation (which he did); there is absolutely no evidence that the brief, less than five-minute-long traffic stop was over when the officer asked for consent to search. The distinction is not fine. Here, without the concrete evidentiary support found in Pruitt and Sims, this Court finds — from the content of the officer’s investigative questions, alone — a Terry violation in the middle of a valid traffic stop. I submit, this is an irrational outcome of Smith v. State.

Further, an appellate court’s subjective interpretation of the contents of questioning is open to wildly variant results, as illustrated in this case where the majority states, “Rather than ticket Stinemetz or release him, the officer decided to conduct a drug investigation.” However, as noted by the trial court, the officer in this case undisputedly asked no questions about drugs, but asked questions about “itinerary, destination, passenger, and activities.” All of these general investigative questions have been considered lawful in previous opinions of this Court. See fn. 28, supra. To interpret such questions now as a “drug investigation” is pure speculation as to the officer’s subjective intent in asking the lawful questions — when it is well established that an officer’s subjective intent during lawful questioning plays no role in Fourth Amendment analysis: “We . . . foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.”

I also submit that to apply Knowles v. Iowa to the instant case of brief investigative questioning, as urged by the majority, is to twist the frame of the Fourth Amendment even further. I candidly cannot fathom how a less than five-minute period of general investigative questioning prior to the issuance of a traffic ticket can be analogized to the full-blown automobile search invalidated in Knowles. Surely a result should be authorized by how it is reached.

“The touchstone of the Fourth Amendment is reasonableness. Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.” To that end the law does not, I think, champion our holding in Smith v. State that the Fourth Amendment requires police officers to have the same “articulable suspicion” necessary to support a traffic stop in order to simply question an already validly stopped driver about matters reasonably related to traffic law enforcement, when such questioning does not “unreasonably prolong” a valid detention.

While this Court has always been rightly sensitive to the danger that an officer will enlarge upon his authority to conduct a Terry-type search and seizure, our Fourth Amendment vigilance cannot permit us the equally offensive course of improperly expanding search and seizure law, thereby denying the people of Georgia the modicum of protection achieved through an officer’s ability to investigate and enforce the law within the parameters of the constitution. Likewise, we cannot ask police officers to continue to stand the wall between the law-abiding and the lawless, if we are going to unjustifiably dismantle it brick by brick.

Decided March 30, 2001.

T Joseph Campbell, District Attorney, Donald S. Smith, Assistant District Attorney, for appellant.

White, Choate & Watkins, Jay Choate, Cook & Connelly, Bobby Lee Cook, Rex B. Abernathy, for appellees.

The trial court’s determination that a Terry violation resulted when the officer asked questions unrelated to the seat belt violation is error as a matter of law. To the extent that our decision in Smith v. State supports the trial court’s erroneous determination, it should be overruled. The judgment below should be reversed.

2. The bottle containing the residue of cocaine was found pursuant to a consensual search. No factual findings were made by the trial court with regard to this issue. Accordingly, this case should be remanded for further findings of fact as to the issue of consent with a right of further appeal.

I am authorized to state that Judge Mikell joins in this dissent.

       There is no evidence that the trooper asked these questions while performing a license or vehicle registration check.

        Delaware v. Prouse, 440 U. S. 648, 653-654 (99 SC 1391, 59 LE2d 660) (1979).

       See OCGA § 40-8-76.1; Ohio v. Robinette, 519 U. S. 33, 38 (117 SC 417, 136 LE2d 347) (1996) (in light of speeding violation, officer had probable cause to stop motorist).

       See Prouse, supra, 440 U. S. at 659.

       See Robinette, supra, 519 U. S. at 38.

       See Knowles v. Iowa, 525 U. S. 113, 118 (119 SC 484, 142 LE2d 492) (1998).

       Id.

       Id.

       See id.

       Id.

       174 F3d 1215 (11th Cir. 1999).

       Id. at 1218.

       (Citations omitted.) Id. at 1220.

       Id.

       Id. at 1221.

       See, e.g., State v. Bassford, 183 Ga. App. 694, 698 (2) (359 SE2d 752) (1987).

       216 Ga. App. 453 (454 SE2d 635) (1995).

       392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968).

       Id. at 19-20.

        Smith v. State, supra at 454.

       Id. at 455 (2).

       Id. Interestingly, such determination based on the questions asked by the officer was not necessary to resolve the Smith case. The facts in Smith clearly established that the original traffic detention had ended and Smith was improperly held further in order for the officer to summon a K-9 unit.

       See, e.g., State v. Sims, 248 Ga. App. 277 (546 SE2d 47) (2001); Almond v. State, 242 Ga. App. 650, 652 (530 SE2d 750) (2000); Lyons v. State, 244 Ga. App. 658, 660 (535 SE2d 841) (2000); see also State v. Milsap, 243 Ga. App. 519, 521 (528 SE2d 865) (2000) (Ruffin, J., dissenting).

       (Citations and punctuation omitted; emphasis supplied.) United States v. Purcell, 236 F3d 1274, 1279-1280 (11th Cir. 2001).

        Radowick v. State, 145 Ga. App. 231, 237 (244 SE2d 346) (1978).

       See United States v. Sharpe, 470 U. S. 675, 685-686 (105 SC 1568, 84 LE2d 605) (1985) (“ ‘the purpose underlying a Terry stop [is] investigating possible'criminal activity.’ ”).

       See, e.g., United States v. Hardy, 855 F2d 753 (I) (N.D. Ga. 1988); Almond v. State, supra; State v. Hall, 235 Ga. App. 412 (509 SE2d 701) (1998); Sprauve v. State, 229 Ga. App. 478 (494 SE2d 294) (1997); Gamble v. State, 223 Ga. App. 653, 655-656 (478 SE2d 455) (1996); Sutton v. State, 223 Ga. App. 721, 723-724 (478 SE2d 910) (1996); Pitts v. State, 221 Ga. App. 309 (471 SE2d 270) (1996); Roundtree v. State, 213 Ga. App. 793 (446 SE2d 204) (1994); Benavides v. State, 193 Ga. App. 737 (388 SE2d 886) (1989); State v. Combs, 191 Ga. App. 625 (382 SE2d 691) (1989); O’Keefe v. State, 189 Ga. App. 519, 520 (376 SE2d 406) (1988); Lombardo v. State, 187 Ga. App. 440 (370 SE2d 503) (1988); Smith v. State, 184 Ga. App. 304, 305-306 (361 SE2d 215) (1987); Daugherty v. State, 182 Ga. App. 730 (356 SE2d 902) (1987).

        Ohio v. Robinette, 519 U. S. 33, 38-39 (117 SC 417, 136 LE2d 347) (1996).

       See Delaware v. Prouse, 440 U. S. 648, 654 (99 SC 1391, 59 LE2d 660) (1979).

        State v. Hall, 235 Ga. App. 412, 415 (509 SE2d 701) (1998); see also O’Keefe v. State, supra at 525 (“ ‘The public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit.’ ”).

        Kan v. State, 199 Ga. App. 170, 171 (1), (2) (404 SE2d 281) (1991).

        Delaware v. Prouse, supra at 658; Sutton v. State, 223 Ga. App. 721, 723 (478 SE2d 910) (1996).

       Supra.

       174 F3d 1215 (11th Cir. 1999).

        Whren v. United States, 517 U. S. 806, 813 (116 SC 1769, 135 LE2d 89) (1996); Garmon v. State, 271 Ga. 673, 678 (3) (524 SE2d 211) (1999). See also Stansbury v. California, 511 U. S. 318, 323 (II) (114 SC 1526, 128 LE2d 293) (1994); Hightower v. State, 272 Ga. 42, 43 (2) (526 SE2d 836) (2000) (subjective intent of officer during questioning generally irrelevant for Fourth Amendment purposes).

       525 U. S. 113 (119 SC 484,142 LE2d 492) (1998).

       (Citation and punctuation omitted; emphasis supplied.) Ohio v. Robinette, supra at 39.

        Whren v. United States, supra at 817-819; Delaware v. Prouse, supra at 659-660.