McClain v. State

• Decision Date: 05 June 1997
• Docket Number: No. A97A0793,A97A0793
• Citation: 487 S.E.2d 471,226 Ga.App. 714
• Parties: , 97 FCDR 2211 McCLAIN v. The STATE.
• Court: Georgia Court of Appeals

Page 471

487 S.E.2d 471

226 Ga.App. 714, 97 FCDR 2211

McCLAIN v.The STATE.

No. A97A0793.

Court of Appeals of Georgia.

June 5, 1997.

J.M. Raffauf, Decatur, for appellant.

Ralph T. Bowden, Jr., Solicitor, Michael D. Johnson, W. Cliff Howard, Asst. Solicitors, for appellee.

BEASLEY, Judge.

In appealing his DUI conviction, Stanley McClain claims that the trial court should have suppressed an officer's testimony about McClain's performance on certain field sobriety tests.McClain argues that the officer lacked an articulable suspicion to stop McClain, thus violating his constitutional rights.Because the first possible "stop" occurred after the officer had smelled alcohol on McClain's breath, the judgment is affirmed.

At 4:00 a.m. on January 26, 1996, a police officer witnessed McClain leave the parking lot of a bar in a quickly accelerating vehicle.Believing that McClain might soon exceed the speed limit, the officer followed for about a mile and a half and caught up where McClain was waiting to make a left turn at a stoplight.When the light changed, McClain turned left and immediately made a sharp right turn into a lit parking lot at the rear of a shopping center.The officer watched as McClain slowly made a counterclockwise turn so that he faced the officer, who was now entering the parking lot.Even though the officer did not flag McClain, turn on his blue flashing lights, nor do anything else to indicate he wanted McClain to stop, McClain stopped and the officer pulled up alongside.To this point, the officer had observed no traffic violations.

As the two men sat in their vehicles, the officer asked McClain how he was doing, what brought him out this time in the morning, and whether he was lost.McClain responded that he was fine and was going to an area different than the direction he had originally been traveling.The officer smelled alcohol and requested McClain to "wait here just a second."The officer pulled his patrol car around to face the rear of McClain's vehicle, exited, and spoke to McClain through McClain's window.He asked for McClain's driver's license and proof of insurance, which McClain could not find.

As the officer continued to speak with McClain, the odor of alcohol became stronger, and McClain appeared unsteady, had dilated, glassy, red eyes, and slurred his speech.When asked if he had had anything to drink, McClain stated he had had five or six beers.The officer asked McClain to submit to several field sobriety tests, including the horizontal gaze nystagmus, the walk and turn, and the one-leg stand, which tests McClain had difficulty completing.After the officer placed McClain under arrest, McClain refused to undergo any chemical tests of his blood, breath, or urine, claiming that he was taking a prescription drug (Paxil) that he felt would interfere with the tests.

On the morning of trial, McClain moved in limine to exclude the officer's testimony on the ground that the officer had no articulable suspicion to stop McClain.The court preferred to hear the motion following the presentation of the evidence, so McClain renewed it at the conclusion of the State's case.The court denied the motion, finding that no stop had occurred.The jury convicted McClain of driving under the influence of alcohol (OCGA § 40-6-391(a)(1)), and acquitted him of driving under the influence of alcohol and drugs (OCGA § 40-6-391(a)(4)).

1.McClain enumerates as error denial of his motion in limine and motion to suppress, on the ground there was no articulable suspicion justifying a Terry stop.SeeTerry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889(1968).¹"Because there was no physical evidence sought to be introduced, defendant's motion is more accurately denominated a motion in limine to exclude the officer's testimony based on the alleged constitutional violation."State v. Roe, 211 Ga.App. 129(1), 438 S.E.2d 186(1993).

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.(Cits.)" '[Cit.]"Alexander v. State, 166 Ga.App. 233, 234(2), 303 S.E.2d 773(1983)."In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave....The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen.In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity."(Citations omitted.)State v. Banks, 223 Ga.App. 838, 839-840, 479 S.E.2d 168(1996).

The first question is whether the officer stopped or detained McClain to the extent that such was a "seizure" under the Fourth Amendment.McKinley v. State, 213 Ga.App. 738, 739, 445 S.E.2d 828(1994)." 'A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave....In order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer's requests or otherwise terminate the encounter....'[Cit.]"Id.

The officer's following of McClain's vehicle (with no blue lights flashing on the patrol car) did not indicate that McClain was not free to drive on.State v. Wright, 221 Ga.App. 202, 206-208(4), 470 S.E.2d 916(1996).Nor did the officer's approaching McClain's stopped vehicle and making inquiries as to what was going on constitute a seizure of McClain.The actions of an officer approaching a stopped vehicle, requesting to see a driver's license, and inquiring about possible criminal or suspicious activity clearly fall within the realm of the first type of police-citizen encounter and do not amount to a stop.Burns v. State, 216 Ga.App. 178, 179-180, 454 S.E.2d 152(1995);VonLinsowe v. State, 213 Ga.App. 619, 621, 445 S.E.2d 371(1994);Rogers v. State, 206 Ga.App. 654, 656-657, 426 S.E.2d 209(1992);Ward v. State, 193 Ga.App. 137, 138(1), 387 S.E.2d 150(1989).²Cf.State v. Smith, 137 Ga.App. 101, 102, 223 S.E.2d 30(1975)(ordering a defendant to either roll down his window or open the door constitutes a seizure).³

The facts closely parallel those of Crosby v. State, 214 Ga.App. 753, 449 S.E.2d 147(1994).In Crosby, the officer followed a car into an apartment complex, where the car parked.The officer pulled alongside the car and asked for identification.The officer then got out of his car and approached the parked vehicle to see if the occupants were engaged in any illegal activity."When appellant rolled the window down, the officer noticed appellant's eyes were bloodshot and alcohol was on his breath."Id. at 754, 449 S.E.2d 147.After hearing the defendant slur his speech and admit to having a few beers and after observing the defendant act unsteady on his feet, the officer then administered some field sobriety tests and placed the defendant under arrest.In the appeal of the DUI conviction, this Court held that the initial encounter did not constitute a stop or seizure, ⁴ and that "once appellant rolled down his window and revealed his bloodshot eyes and the strong odor of alcohol, Officer Kemp had reasonable grounds to conduct an investigative inquiry."Id. at 755, 449 S.E.2d 147.

"When reviewing a trial court's decision on a motion to [exclude evidence], we must construe the evidence favorably to uphold the trial court's findings and judgment, and the trial court's findings must be upheld if any evidence supports them.[Cit.]"Richards v. State, 225 Ga.App. 777, 778(1), 484 S.E.2d 683, 685(1997).SeeState v. Banks, supra at 839, 479 S.E.2d 168(1996);Alex v. State, 220 Ga.App. 754, 470 S.E.2d 305(1996).The evidence supported the trial court's finding that there was no seizure when McClain voluntarily stopped his vehicle and the officer approached and inquired.During the inquiry, the officer smelled alcohol.Only at that point did the officer tell McClain to "wait here just a second" and park his patrol car behind McClain.Even if telling McClain to "wait here just a second" constituted a seizure, ⁵ at that point the officer had smelled the alcohol on McClain's breath, which provided "reasonable grounds to conduct an investigative inquiry to determine whether appellant was engaged in criminal activity, e.g., driving under the influence."Crosby, 214 Ga.App. at 755, 449 S.E.2d 147.SeeRichards v. State, supra at 778, 484 S.E.2d 683, 685-86(1997).

Denial of the motion in limine was not error.

2.McClain contends that the evidence was insufficient to sustain his conviction under Jackson v. Virginia, supra.In view of the evidence about McClain set forth above (failing sobriety tests, slurring his speech, having bloodshot, glazed eyes, appearing unsteady, admitting to having five or six beers, refusing to permit chemical analysis, etc.), this argument fails.SeeOCGA § 40-6-392(d)(refusal to permit chemical analysis is admissible against defendant).

3.In his third enumeration, McClain claims error in the court's allowing the officer to bolster his own testimony.In response to a question as to why he arrested McClain, the officer testified that blood and alcohol test results (when available) had consistently confirmed that those...