Chavez-Ortega v. State, No. A14A2188.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: RAY, Judge.
• Citation: 331 Ga.App. 500,771 S.E.2d 179
• Parties: CHAVEZ–ORTEGA v. The STATE.
• Docket Number: No. A14A2188.
• Decision Date: 24 March 2015

331 Ga.App. 500
771 S.E.2d 179

CHAVEZ–ORTEGA
v.
The STATE.

No. A14A2188.

Court of Appeals of Georgia.

March 24, 2015.

771 S.E.2d 180

Herman Maddox Kilgore, for Appellant.

Barry Edward Morgan, Marietta, Michael Dane Deariso, for Appellee.

Opinion

RAY, Judge.

331 Ga.App. 500

Jonathan Chavez–Ortega has been charged by accusation with driving under the influence of alcohol, reckless driving, and racing. We granted Chavez–Ortega's application for interlocutory review of an order denying a motion to suppress his custodial statements. Because we find that Chavez–Ortega was in custody when he invoked his right to remain silent, but that the police nonetheless continued to question him which led to the incriminating evidence which he

331 Ga.App. 501

seeks to suppress, we reverse the trial court's denial of Chavez–Ortega's motion to suppress.

Three fundamental principles must be followed when conducting an appellate review of a motion to suppress. 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 [her] 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

771 S.E.2d 181

support them. 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.... Where the issue turns on the question of whether a trial court committed an error of law in granting a motion to suppress, we apply a de novo standard of review.

(Citations and punctuation omitted.) Williams v. State, 329 Ga.App. 650, 650, 766 S.E.2d 82 (2014).

The evidence adduced at the suppression hearing shows that Officer Archevald and Officer Denson, with the Cobb County Police Department, observed two vehicles make a turn at a high rate of speed on wet road conditions. Both officers heard tires squealing, and the cars appeared to be racing as they continued to accelerate along Barnes Mill Road. The officers activated their sirens and emergency lights to initiate a traffic stop as both cars turned onto Ven Villa Drive, but only the car driven by Gerald Sanders stopped. The second car continued down the road. Chavez–Ortega was later seen walking back to the traffic stop location. When an officer approached Chavez–Ortega, he noticed that Chavez–Ortega smelled of alcohol and had watery, bloodshot eyes.

Officer Taylor responded to the scene as backup. He briefly spoke to Chavez–Ortega and asked him where he was coming from. When Chavez–Ortega stated that he was walking from a friend's house, but could not provide details as to where the friend lived, Officer Taylor detained him in handcuffs and placed him in the back of the patrol car while the other two officers were finishing the investigation of Sanders. The State played a video recording of the interior of the patrol car during the suppression hearing. The visual field of the camera was trained toward the front of the patrol car, but the audio portion is audible. Officer Taylor informed Chavez–Ortega that he was “not arrested yet” and that he would be “free to go” if they did not

331 Ga.App. 502

find his car nearby. Officer Denson then questioned Chavez–Ortega about whether he had been drinking, where he had been that evening, and if he had been driving the other car. Chavez–Ortega admitted to drinking at a buddy's house nearby, but stated that he had not been driving. Officer Taylor acknowledged at the suppression hearing that Chavez–Ortega was “detained” and not free to leave once he was handcuffed and placed in the patrol car. Officer Denson then arrived and questioned Chavez–Ortega about where he lived and how old he was. Chavez–Ortega quickly stated that he did not want to talk, and Officer Denson advised him of his Miranda rights.

The video recording shows that at the conclusion of the Miranda warning, Chavez–Ortega can be heard to tell the officer “I don't want to talk to you.” It appears from the transcript that the trial court could not understand this statement during the suppression hearing due to the poor quality of the audio recording.

Officers continued to question Chavez–Ortega about where his car was located. Chavez–Ortega again stated that he had not been driving and that he was coming from a friend's house, but admitted that he was drunk. Once taken outside the patrol car, Chavez–Ortega again stated that he did not want to talk.

During the course of the investigation, Sergeant Paul Rushing, who also responded as backup, located Chavez–Ortega's vehicle up the street. He testified that the driver's floor mat was wet, but that the passenger's side was only dirty, indicating that only one person had been in that car.

After indictment, Chavez–Ortega filed a motion to suppress the statements he had made before and after he was issued a Miranda warning. The trial court denied the motion, finding, inter alia, that Chavez–Ortega was not in custody during his questioning, that Officer Denson recited the Miranda warning to Chavez–Ortega “as a safety precaution[,]” and that his statements were made voluntarily and without coercion.

1. Chavez–Ortega argues that the trial court erroneously determined that he was not “in custody” when he made statements to...