Johnson v. State

• Decision Date: 02 July 2009
• Docket Number: No. A09A0746.,A09A0746.
• Parties: JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

682 S.E.2d 601

299 Ga. App. 474

JOHNSON v. The STATE.

No. A09A0746.

Court of Appeals of Georgia.

July 2, 2009.

Motion for Reconsideration Denied July 30, 2009.

Certiorari Denied November 2, 2009.

Robert W. Chestney, Atlanta, for appellant.

Douglas C. Vassy, Solicitor-General, Stephen J. Tuggle, Asst. Solicitor-General, for appellee.

BERNES, Judge.

Following a stipulated bench trial, Kathy Green Johnson appeals her DUI conviction. Johnson argues that the trial court erred by denying her motion to suppress evidence allegedly obtained as the result of an unlawful detention. We find no error and affirm.

On appeal from the denial of a motion to suppress, we defer to the trial court's findings of disputed facts but review de novo the court's application of the law to the undisputed facts. Williams v. State, 297 Ga. App. 626, 677 S.E.2d 773 (2009). See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). To the extent that the controlling facts in this case are undisputed because they are plainly discernable from the patrol car-mounted video recording, we review those facts de novo. Lyons v. State, 244 Ga.App. 658, 658-659, 535 S.E.2d 841 (2000).

The evidence presented to the trial judge during the motions hearing showed that Johnson was the owner of a daycare center in Carrollton. On the day in question, police were dispatched to the daycare center after a 911 caller reported a violent domestic disturbance on the premises.

After the responding officer arrived, he learned that the alleged victim of the domestic violence incident worked as an employee at the daycare center. The alleged perpetrator had been repeatedly calling and harassing both the victim and a second employee at the daycare center. The perpetrator came to the daycare center and assaulted the victim, ultimately tearing off her shirt.¹ The alleged assault occurred in the middle of the afternoon, with children present.

During the course of his investigation, the officer learned that Johnson was present during the assault, but that it was the victim's father who called 911 to report the incident. The victim's father told the officer that when Johnson learned that 911 had been called, she got into a van and "left real quick." The father also told the officer that he believed that Johnson may have been drinking alcohol.

As the officer was concluding his investigation, Johnson entered the parking lot driving a van full of children and ordered the officer to move his patrol car. The officer declined to move his vehicle, but made it clear to Johnson that he wanted to discuss with her the importance of calling 911 when a violent incident occurred on her premises that potentially placed the children at risk. Although the officer did not smell alcohol on Johnson at that time, he noticed that her eyes were glassy and described her as being in an "over-emotional state." The officer allowed Johnson to unload the children from the bus and take them inside, but told her to return when she was finished. After waiting for approximately five minutes, the officer viewed Johnson through an office window and motioned for her to return outside. She complied.

The officer engaged Johnson in a conversation in which he repeatedly emphasized to her how he considered her negligent and derelict in protecting the safety of her children by failing to call 911. During this exchange, the officer smelled alcohol on Johnson's breath and called for a second officer to conduct a roadside sobriety test. The events that followed ultimately led to Johnson's submission to a breath test which revealed that she had an alcohol concentration of 0.15 grams.

Johnson was arrested and charged with less safe DUI, in violation of OCGA § 40-6-391(a)(1); per se DUI, in violation of OCGA § 40-6-391(a)(5); and eight counts of child endangerment, in violation of OCGA § 40-6-391(l). Johnson moved to exclude all physical and testimonial evidence gathered after the point in which the officer signaled her through the window to return outside, arguing that the officer's command amounted to an unlawful seizure in violation of the Fourth Amendment to the United States Constitution. After an evidentiary hearing, the trial court denied the motion, finding that the officer's conduct at all times was reasonable in light of the circumstances presented. The parties then stipulated to the evidence presented during the hearing for the purposes of a bench trial, and the trial court found Johnson guilty on all counts. This appeal followed.

Johnson contends that the officer's insistence that she return outside after she was permitted to enter into the daycare facility amounted to an unlawful detention without an articulable suspicion of criminal activity.

There are three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief "seizures" that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

(Citation and punctuation omitted.) McClain v. State, 226 Ga.App. 714, 716(1), 487 S.E.2d 471 (1997). A police-citizen encounter remains consensual and does not implicate the Fourth Amendment "[s]o long as a reasonable person would feel free to disregard the police and go about his business." (Footnote omitted.) Ward v. State, 277 Ga.App. 790, 791-792, 627 S.E.2d 862 (2006). A seizure requiring a showing of reasonable suspicion has occurred, however, once a reasonable person no longer believes that he is free to leave. McClain, 226 Ga.App. at 716(1), 487 S.E.2d 471. At that point, "[t]he detention must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably, warrant the detention, and the [officer] must have some basis from which the court can determine that the detention was neither arbitrary nor harassing." State v. Gibbons, 248 Ga.App. 859, 864(2), 547 S.E.2d 679 (2001).

We agree with Johnson that her encounter with the officer elevated to a second tier encounter once the officer made it clear that she was not authorized to disregard his request that she return outside. See, e.g., Ward, 277 Ga.App. at 792, 627 S.E.2d 862; Davidson v. State, 257 Ga.App. 260, 263(1)(b), 570 S.E.2d 698 (2002). We do not agree, however, with Johnson's contention that the temporary detention was not justified by a reasonable suspicion of criminal activity.

At the time that the officer detained Johnson, he was aware that Johnson had failed to call 911 when a violent domestic disturbance had occurred on her premises that potentially placed the children at risk, and that she had "left real quick" upon learning that the police had been summoned. The officer had also been informed Johnson may have been drinking. Finally, when Johnson returned driving a van full of young children, the officer observed that she had glassy eyes and was in an "over-emotional state." These specific and articulable facts, taken together with rational inferences from those facts, warranted the officer's temporary detention of Johnson based on a reasonable suspicion that she had committed the crime of driving under the influence of alcohol. See generally Maloy v. State, 293 Ga.App. 648, 650(1), 667 S.E.2d 688 (2008) (the observation of glassy eyes and suspicious demeanor of a driver may justify a temporary detention); Veal v. State, 273 Ga.App. 47, 49-50, 614 S.E.2d 143 (2005) (the behavior giving rise to a reasonable suspicion of unlawful activity need not itself be unlawful); Johnson v. State, 251 Ga.App. 659, 661(3), 555 S.E.2d 34 (2001) (an apparent attempt to avoid police in conjunction with other factors can give rise to a reasonable suspicion of criminal activity).

Moreover, the fact that a violent domestic disturbance had erupted in the presence of children under Johnson's care and control and Johnson failed to summon the police supported a reasonable suspicion that she may also have been guilty of reckless conduct. See OCGA § 16-5-60(b) ("A person who ... endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor."); Baker v. State, 280 Ga. 822, 823(1), 633 S.E.2d 541 (2006) (the act of leaving a nine-month-old child in a walker unsupervised on the second floor of a townhome with no protective device blocking the stairs supported appellant's conviction of reckless conduct); Reyes v. State, 242 Ga. App. 170, 172-173(1), 529 S.E.2d 192 (2000) (inadequate supervision that exposes a child to a foreseeable, substantial and unjustifiable risk supports a finding of reckless conduct); McCauley v. State, 222 Ga.App. 600, 601, 475 S.E.2d 669 (1996) (reckless conduct conviction predicated upon appellant's act of endangering a child by striking an officer while holding the child).

As pointed out by Johnson, the officer testified that when he signaled Johnson to come outside, he did not suspect her of criminal wrongdoing, but intended only to discuss with her the importance of calling 911 for assistance when children are exposed to potentially dangerous circumstances. Nevertheless, when analyzing whether a person has been unconstitutionally seized, we are not bound by the detaining officer's subjective belief. See Garrett v. State, 259 Ga.App. 870, 875(2), 578 S.E.2d 460 (2002); Cole v. State, 254 Ga.App. 424, 426(2), 562 S.E.2d 720 (2002). Rather, the touchstone of any Fourth Amendment analysis is a determination of whether an officer's conduct is reasonable based upon all of the objective facts. Hayes v. State, 292 Ga.App. 724, 729(2)(c), n. 32, 665 S.E.2d 422 (2008). The circumstances presented here...