1 Hernandez also was co nvicted of obstruction of

a law en forcem ent officer, but that conv iction is n ot imp ortant f or the p urpo ses of this app eal. 294 Ga. 903 FINAL C OPY

S13G155 4. HERNANDEZ v. THE STATE. B LACK WE LL , Justice. Edgar Betancourt and app ellant Oscar Hernandez were tried by a jur y and convicted of traffickin g in cocai ne. 1 At trial, the State pr esented evidence that Beta ncourt and He rnandez

were s topped by

law e nforcement offic ers on Interstate 85 in Gwinne tt County . In thecourse of that tra ffic sto p, the of

ficers found a large quantity of coca ine hidden in the c ar in whi ch Bet ancou rt an d Hernandez were t

raveling, a Ni ssan wit

h a Mas sachusetts tag a

nddar k tinted windows. The State als o presented evid ence of a similar transactio n, in which Betan court

and Hernandez had b een stopped two weeks earlier by la w enforcement

officers on I nterstate 77 in North Carolin a. In the course of that stop, the Nort

h Carolina offic ers found $19 5,000 hid den in the car in wh ich Beta ncourt and He rnandez

weretraveling, a Merc edes with a Massachusetts tag and dark tinted windows. Betanc ourt and Hernandez both appealed from the ir convict ions, and among other clai ms of error, Hernan dez asserted that th e trial2

court should h ave suppress ed the evidence of th e similar transa ction

beca use the State f ailed to prove the

lawfulness of th e North C arolina traffic stop. In Betancourt v. State , 322 Ga . App. 20 1 (744 SE2d 419 ) (2013), t he Court of Appeal s affirmed the c onviction s. About t he suppre ssion of the

similar transa ction

evidence, the C ourt of Appeals noted that the exc lusionary rule i s intended pri ncipallyto deter unlawful searc hes and seizures, a nd “the rule applies only when its remedial o bjectives are thought m os t ef

ficaciously served.” 322 Ga. App. at 208 (3 ) (b) (cita

tion and pu

nctuation omit

ted). T he Court of Appeals reas oned that the suppre ssion of e vidence seize d by out-of

state law e nforcement offic ers would yi eld no apprec iable d eterre nce, a nd as a result, it held t

hat theexclus ionary rule did n ot apply in this c ase to require the suppressi on of the similar tran saction eviden ce, even assuming that s uch evidence was se ized unl awfully . Id. at 209-21 0 (3) (b). O n the pe tition of Hernandez, we granted a writ of cert iorari t o consider this holding by the C ourt of Appeal s. We now

affirm the judgment of the

Court of A

ppeals, albeit

on another ground. Our statutor y law provides a

procedure by wh ich an accuse d may move to suppress ev idence that was obt ained unlawfu lly. See OCGA § 17-5-3 0. A3

motion to suppress must “be in writing and state facts showin g that the search and seizure were unlawful .” OCGA § 1 7-5-30 (b). In the a bsence of such a motion, the State has no bu rden to prove th e lawfulness of the manner in which evidence was obta

ined, a ndthe ac cused fa

ils to pre serve any error with res pect to the suppressi on of the evid ence. See Rucker v. State , 250 Ga . 371, 375 (11) ( 297 SE2d 481) (19 82) (defendant wa ived suppre ssion whe n he mov ed t o suppress evidence orally, rather tha n in writing); Gilreath v. State , 247 Ga. 814, 822 (2) (279 SE2d 650) (1981) (same); Yeldell v. State , 240 Ga. 37, 38 (2) ( 239 SE2d 364) (1977) (f

inding no error in failure

of trial court to suppress ev idence wheredefendant moved to suppress orally, rather tha n in writing, and failed to state any fa cts dem

ons tratin g that the search and seizure were unlawful ). See also 6 LaFave, Search & S eizu re § 11.2 (a

) (5 thed. 2013) (ev en “evidence acquired in violat

ion of theFourth Am endmentis no t excluded fro m criminal trials a s a ma

tter of c ourse”)

. In this case, the Sta

te gave notice to He

rnandez — about se ve n months beforetrial —

that it intende d to offe r eviden ce of the North Carolina traffic stop as a simil ar tra

nsacti on. Although H ernande z objec ted to the admis sion of that evidence on several grounds, he never a rgued bef ore trial that the evid ence2 The State n oted o n the re cord that i t atte mpted to sche dule the hearing e arli er, but

Hernandez refused t o sti pulate that he was involved i n the North Carol ina st op. Hernandez acknowledged at the hearing that he had prior notice of the State’ s int ention t o intr oduce the simil ar trans acti on evidence at tri al and that

he had no object ion to t he timi ng of the hear ing. 4 had been unlawfully

obtained, and h e never filed a written motion to suppress. Instea d, he waited until a hea ring on theadmis sibility

of the si mila

r transaction evidence — held out of

the presence of th e jury, but midway thro ugh the tri al 2

— to say anything about th e law fulness of the Nort h Carolina traf

fic stop. And

even then, he pointed to no facts sugg esting that th e stop was unlawful . To the contrary, he merely

argued t hat theState had fai led to pro ve the l awfulne ss of the stop. The State, of

course, had no burden t o prove the la wfulnes s of the stop until its lawfulness was put in issue by a motion that c omplie d with the statuto ry require ments , and it is undispute d that He rnande z file d no such m otion. Accordingly, the trial c ourt rule d that the State was not required

to prove that the evidence was obtained lawfu lly. About thi s, the trial court was exactly right, and Hernandez has faile d to preserve any error with re spect to the suppression of the3 Because Hernandez has fa iled t o preser ve any e rror wit

h respect to the suppress ion of the similar transaction ev idence, it is not necessa ry in this case to consider th e exte nt to which the excl usionar

y r ule appl ies t o simil ar tr ansacti on evidence obt ained as a resul t of a s earch a nd seizur e by out -of-st ate l aw enforcement offi cers. Accordingly , we express no opin ion ab out the correc tness o f the v iews of the Co urt of A ppea ls upo n that su bject.

4 He rnan dez a lso arg ued in the Court of Appeals that

his trial counsel was ineffect ive be cause he fail ed to pres erve the suppress ion is sue. About t hat, Hernandez fail ed to prove prejudi ce, an essent ial e lement of any cl aim that

counsel rendered i neffecti ve assi stance. See Strickla n d v. Washingt on , 466 U. S. 668, 691-694 (II I) (B) ( 104 SCt 2052, 80 LE2d 674) (1984). At the hear ing on the adm issibility of the similar tra nsac tion ev idenc e, the S tate offered the te sti mony of a North Caroli na officer who arrivedat the scene only after another officer had stoppedBeta ncou rt and H ernan dez. T he S tate did not offer t he test imony of t

he other North C arolina officer, wh o app arently was on vacati on at the time of t rial . As such, Hernandez argues t

hat the State c ould nothave proved the lawfulnes s of the North Caroli na stop. But if hi s lawy er had done what Hernandez c ontends he should have done — if he had file d a writt en mot io n to suppre ss — the State would ha ve had noti ce that it would be requir ed to pro ve the lawf ulnes s of th e stop , and it conce ivably could have made arrang eme nts for the ot her North Carol ina offic er to t esti fy ( the rec ord does not show otherw ise). On his motion for new trial , Her n ande z did n ot off er any testim ony fro m this other officer , so t

he record doe s not re flect whether his test imony woul d have been insuffi cient

to prove t

he lawfulnes s of the s earch. And as such, H ernande z failed to carry his burden to s how prejudice . See Dick ens v . State , 280 Ga. 320, 322-323 (2) ( 627 SE2d 587) (20 06)

.

5 similartransa ction e vidence . Upon tha t ground, 3 we aff

irm the judgme nt of the Court of A

ppeals. 4 Judgme nt affir

med. All the

Justice s concur .6 Decid ed March 28, 2014. Certio rari to t

he Court of Appeals of Ge orgia – 322 Ga. A pp. 201. Jess B. Johnson , for appellant. Daniel J. Porter, District Attorney, Ka r en M. Harris, Assis tant District Attorney , for appellee.