Baker v. State

• Decision Date: 03 December 2001
• Docket Number: No. A01A1090.,A01A1090.
• Citation: 252 Ga. App. 695,556 S.E.2d 892
• Parties: BAKER v. The STATE.
• Court: Georgia Court of Appeals

556 S.E.2d 892

252 Ga. App. 695

BAKER v. The STATE.

No. A01A1090.

Court of Appeals of Georgia.

December 3, 2001.

Chestney-Hawkins Law Firm, Robert W. Chestney, Atlanta, for appellant.

Joseph J. Drolet, Solicitor-General, A. Dionne Allen, Katherine Diamandis, Asst. Solicitors-General, for appellee. MIKELL, Judge.

After a jury trial, Chris Baker was convicted of driving under the influence of alcohol to the extent that he was a less safe driver.¹ Baker appeals his conviction, arguing that the trial court improperly denied his motion in limine to exclude evidence gathered from a roadblock, erroneously admitted his alco-sensor test results, and incorrectly charged the jury on the horizontal gaze nystagmus ("HGN") evaluation. We reverse.

On appeal, "this court views the evidence in the light most favorable to support the verdict, and an appellant no longer enjoys a presumption of innocence." (Punctuation omitted.) Dumas v. State, 239 Ga. App. 210-211(1), 521 S.E.2d 108 (1999). Further, "[w]here the evidence is uncontroverted and there is no issue as to witness credibility,... we review de novo the trial court's application of the law to the undisputed facts." State v. Becker, 240 Ga.App. 267, 268, 523 S.E.2d 98 (1999).

The uncontroverted evidence shows that on May 5, 2000, while working at a roadblock, Officer A.M. Wright stopped Baker and asked for his driver's license and insurance information. Officer Wright testified that he noticed that Baker's eyes were enlarged, a moderate odor of alcohol emanated from his breath, and his speech was very fast and "stutterish." Based on these observations, Officer Wright asked Baker to pull to the side of the road.

Responding to Officer Wright's instructions to recite the alphabet from "C" to "Q," Baker twice recited the alphabet from C to Z. Each time, Baker's recitation of the letters between C and Q was unintelligible. Officer Wright then told Baker to exit his vehicle and asked if he would perform several field sobriety tests. Baker agreed to do so.

The first test that Officer Wright administered to Baker was the HGN evaluation. Baker exhibited several clues of impairment. The next tests administered were the walk and turn test and the one-leg stand test. Officer Wright testified that four indicators on the walk and turn test suggest alcohol impairment, and Baker exhibited at least five. On the one-leg stand test, swaying and using one's arms to balance are the impairment indicators, and Baker exhibited both. Based on Baker's performance on these tests, Officer Wright concluded that Baker "was definitely under the influence of alcohol."

Officer Wright then offered Baker a preliminary breath test which he agreed to take. Despite Officer Wright's instructions to blow into the alco-sensor tube, Baker sucked on the tube instead. After Officer Wright explained the instructions again, Baker blew into the tube, and the results were positive for alcohol. Concluding that Baker was not a safe driver, Officer Wright arrested him.

1. During the hearing on Baker's motion to suppress all evidence gathered at the roadblock, Officer Wright testified that he was not present when one of his supervisors decided to implement the roadblock, and that he could not remember which of the two supervisors had made the decision. In light of this testimony and the fact that Officer Wright was the state's only witness, Baker contends that the state failed to prove the roadblock was lawful. Thus, he argues, his motion in limine seeking suppression of the evidence should have been granted. We agree.

LaFontaine v. State, 269 Ga. 251, 497 S.E.2d 367 (1998), articulates the factors to be considered in determining whether a roadblock is lawful. It provides,

A roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the "screening" officer's training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

Id. at 253(3), 497 S.E.2d 367, citing State v. Golden, 171 Ga.App. 27, 318 S.E.2d 693 (1984). Baker argues that the state did not prove the first and last of these five factors. The first factor must be examined in light of the recent decision by the United States Supreme Court in City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).

City of Indianapolis v. Edmond² recites the general rule that stopping a vehicle at a roadblock is a seizure, that only reasonable searches and seizures are allowed by the Fourth Amendment to the United States Constitution, and that seizures are usually unreasonable unless prompted by probable cause or by "individualized suspicion" of wrongdoing, i.e., by an articulable suspicion that the driver, or some other occupant of the particular vehicle stopped, has committed a crime. See Edmond, 531 U.S. at 37, 40, 121 S.Ct. 447, citing Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990), and Chandler v. Miller, 520 U.S. 305, 308, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). However, a series of decisions beginning in 1976 with United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), allowed an ever growing list of exceptions to the general rule. Among many exceptions were decisions validating roadblocks at or near a border to screen for illegal immigrants, Martinez-Fuerte, supra, and United States v. Montoya de Hernandez, 473 U.S. 531, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985). Additionally, Sitz, supra, validated the stopping of all traffic to remove impaired drivers from the road, and Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), validated stops to check driver's licenses.³

All of these exceptions to the general rule were subject to additional procedural requirements imposed by appellate courts to attempt to ameliorate these deviations from the Fourth Amendment. Federal precedents required that the roadblock be conducted pursuant to a plan devised by supervisory personnel and not by officers in the field using their unfettered discretion. Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979); Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. 3074. Georgia precedents required, among other safeguards, that "the decision to implement the roadblock" be made by supervisory personnel rather than by officers in the field. See, e.g., LaFontaine, 269 Ga. at 253, 497 S.E.2d 367, citing Golden, supra.

Justice O'Connor, writing for the majority in Edmond, worried that the exceptions were threatening to absorb the general rule. She argued that some line must be drawn or "the Fourth Amendment would do little to prevent such intrusions [roadblocks] from becoming a routine part of American life." 531 U.S. at 42,121 S.Ct. 447. The line drawn by O'Connor and her colleagues in Edmond was to invalidate roadblocks or checkpoints whose primary purpose is to uncover evidence of "ordinary criminal wrongdoing." 531 U.S. at 41, 42,121 S.Ct. 447.⁴ O'Connor's opinion in no way questions or diminishes the validity of the court's previous holdings in Martinez-Fuerte and Sitz. Moreover, the Edmond court asserted that the Fourth Amendment would "almost certainly" permit a roadblock "set up to thwart an imminent terrorist attack...." 531 U.S. at 44,121 S.Ct. 447.⁵

But the increased emphasis in Edmond on the primary purpose of a roadblock makes proof of a valid purpose a constitutional prerequisite to the admissibility of evidence seized at the roadblock. Moreover, because of the well established rule that supervisory personnel, rather than officers in the field, must make the decisions implementing the roadblock, Edmond now requires us to focus on the primary purpose decreed by the supervisors. As Edmond explains in a somewhat Delphic manner, what is required is "an inquiry into purpose at the programmatic level." 531 U.S. at 46, 121 S.Ct. 447. Furthermore, "the purpose inquiry in this context is to be conducted only at the programmatic level...." 531 U.S. at 48, 121 S.Ct. 447. Apparently, under the Edmond analysis, the purpose in the minds of the officers in the field, as evidenced by their testimony or their actual conduct at the roadblock, is not conclusive on the threshold issue of the supervisor's purpose. Paradoxically, "a program driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar." 531 U.S. at 47, 121 S.Ct. 447.

In the case at bar, the state attempted to prove, in response to a motion in limine, that the roadblock's primary purpose was to check for drivers operating vehicles under the influence of alcohol, a clearly valid purpose under Sitz. The evidence offered to prove the purpose was the testimony of the state's sole witness, Officer Wright of the Atlanta Police Department. Officer Wright testified that the purpose of the roadblock was "for DUI checks" and that the decision to set up the roadblock was made by "my supervisor of the evening." However, further examination revealed that Officer Wright did not remember which supervisor was on duty and which supervisor decided to implement the roadblock. Wright was not present when the decision was made and "had not participated in [the roadblock] the entire time."

Wright's testimony establishes clearly that his purpose was "DUI checks." His actions that morning and the actions of the other officers on the scene were consistent with that purpose. But his actions are not conclusive evidence of the supervisor's purpose in implementing the checkpoint. Wright's precise testimony was:

Q. Thank you. Who called this roadblock?

...