Owens v. the State.

• Decision Date: 10 March 2011
• Docket Number: No. A10A1948.,A10A1948.
• Citation: 707 S.E.2d 584,308 Ga.App. 374
• Parties: OWENSv.The STATE.
• Court: Georgia Court of Appeals

308 Ga.App. 374

707 S.E.2d 584

11 FCDR 667

OWENS

v.The STATE.

No. A10A1948.

Court of Appeals of Georgia.

March 10, 2011.

Sean Aaron Black, Toccoa, for Appellant.Dan T. Pressley Sr., Solicitor–General, for Appellee.ELLINGTON, Chief Judge.

On August 15, 2008, officers with the Georgia State Patrol stopped Virgil Owens at a roadblock and arrested him for driving under the influence of alcohol (“DUI”). Following a bench trial, Owens was convicted of DUI, based upon a violation of OCGA § 40–6–391(a)(5) (per se). On appeal, Owens claims that the trial court erred by denying his motion to suppress evidence obtained at the roadblock. He also argues that the officers lacked probable cause to arrest him for DUI. Finding no merit to Owens' arguments, we affirm.

1. Owens contends that the trial court erred in finding that the roadblock had been legally initiated and implemented and in denying his motion to suppress based upon such finding.¹ Specifically, he argues that the evidence shows that the roadblock was the result of an unauthorized, “on-the-fly” decision made jointly by an alleged supervisor and his field officers and that the roadblock was, essentially, an improper “roving patrol” of officers who illegally stopped and detained motorists.

It is axiomatic that a police officer's stop of a vehicle is a seizure that violates the Fourth Amendment unless it is reasonable. City of Indianapolis v. Edmond, 531 U.S. 32, 37(II), 40(III), 121 S.Ct. 447, 148 L.Ed.2d 333 (2000); Thomas v. State, 277 Ga.App. 88, 89–90, 625 S.E.2d 455 (2005). In general, a seizure is unreasonable absent some individualized suspicion of a crime. City of Indianapolis v. Edmond, 531 U.S. at 37(II), 121 S.Ct. 447; Thomas v. State, 277 Ga.App. at 89–90, 625 S.E.2d 455. As a result, “roving patrols in which officers exercise[ ] unfettered discretion to stop drivers in the absence of some articulable suspicion” are unconstitutional. (Citation omitted.) Thomas v. State, 277 Ga.App. at 90, 625 S.E.2d 455. A limited exception to the rule requiring individualized suspicion, however, allows standardized highway checkpoints or roadblocks that serve legitimate law enforcement objectives and that impose minimal intrusions on the motoring public. City of Indianapolis v. Edmond, 531 U.S. at 41–42(III), 121 S.Ct. 447; LaFontaine v. State, 269 Ga. 251, 253(3), 497 S.E.2d 367 (1998).²

To justify a traffic stop under this exception, the State must prove that a highway roadblock program “was implemented at the programmatic level ³ for a legitimate primary purpose,” that is, that the roadblock was ordered by a supervisor, rather than by officers in the field, and was “implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime.” ⁴ (Citations omitted.) Hobbs v. State, 260 Ga.App. 115, 116(1), 579 S.E.2d 50 (2003). “Elevating the roadblock decision from the officers in the field to the supervisory level limits the exercise of discretion by the officers in the field.” Thomas v. State, 277 Ga.App. at 90, 625 S.E.2d 455.

In addition, the State must prove that

all vehicles [were] stopped as opposed to random vehicle stops; the delay to motorists [was] minimal; the roadblock operation [was] well identified as a police checkpoint; and the screening officer's training and experience [was] sufficient to qualify him [or her] to make an initial determination as to which motorists should be given field tests for intoxication.

(Citation and punctuation omitted.) LaFontaine v. State, 269 Ga. at 253(3), 497 S.E.2d 367. “[T]he factors in LaFontaine are not general guidelines but are minimum constitutional prerequisites with which perfunctory compliance will not suffice.” (Citation, punctuation and footnote omitted.) Thomas v. State, 277 Ga.App. at 90, 625 S.E.2d 455.

In this case, the only witnesses who testified at the motion to suppress hearing were the supervisor who initiated and supervised the roadblock and the officer who screened Owens at the roadblock and eventually arrested him. Following the hearing, the trial court made the following findings of fact:

The order for the roadblock was issued by Sergeant Michael C. Johnson post commander of Post 7 of the Georgia State Patrol, Toccoa, Georgia.... Sgt. Johnson is in fact the commanding officer for the field officers at his Post and his duties include “Initiating road-checks[.]” ⁵ ... Sgt. Johnson initiated the roadblock verbally and the decision was made by him alone.⁶ ... Sgt. Johnson [then] supervised the roadblock.⁷

The court also found that, when Sgt. Johnson verbally initiated the roadblock on August 15, 2008, he called into the radio operator to report the roadblock. The roadblock approval form, which was admitted into evidence without objection, stated the reasons for the roadblock on August 15, 2008, and the court found that the information on the form did not conflict with any evidence presented as to when the roadblock was to be conducted or by whom it was authorized.⁸ The evidence presented during the hearing on the motion to suppress supports these findings of fact.

Contrary to Owens' contentions, there is no evidence in this case that Sgt. Johnson spontaneously decided in the field to conduct the roadblock or that the roadblock had any other characteristic of a “roving patrol.” ⁹ Instead, given the evidence presented, the trial court was authorized to conclude that Sgt. Johnson properly initiated, authorized, and supervised the roadblock and that his decision to implement the roadblock was made at the programmatic level for a legitimate primary purpose.¹⁰

*Ga.App.378 2. Owens contends that the trial court erred in finding that his detention by the officers was not excessive under the circumstances or otherwise illegal and in denying his motion to suppress based upon such finding. We disagree.

When a violator is placed in custody or under arrest at a traffic stop, the protection of Miranda ¹¹ arises. Thus, if an officer gives a field sobriety test to a person who is in custody or under arrest but who had not been warned of his right against self-incrimination, then the test results are inadmissible. Conversely, if the person is not in custody when he takes a field sobriety test, the results are generally admissible[,] even if the person had not been warned of his Miranda rights. The test to determine whether a detainee is in custody for Miranda purposes is whether a reasonable person in the detainee's position would have thought the detention would not be temporary. The safeguards prescribed by Miranda become applicable only after a detainee's freedom of action is curtailed to a degree associated with formal arrest. The rationale behind the holding is that although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee's exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights. The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court's determination will not be disturbed unless it is clearly erroneous.

(Citations and punctuation omitted.) Thomas v. State, 294 Ga.App. 108, 110(1), 668 S.E.2d 540 (2008).

As the trial court in this case found, the arresting officer

detained [Owens] for [20] minutes after the initial portable breath test to conduct an additional test. The reason given by the arresting officer was that [Owens] admitted he had something to drink recently and there could be residual mouth alcohol. Not until after the [20] minute wait and after the second portable breath test was possible was [Owens] placed under arrest.... The [20] minute delay was for the benefit of [Owens] to insure that the portable alcohol test was not affected by residual alcohol due to [Owens'] recent consumption of alcoholic beverages.

These findings of fact are supported by evidence in the record. Further, there was no evidence that Owens was handcuffed or otherwise restrained while he waited near the back of his vehicle during the brief detention.

We conclude that, under the circumstances presented, “a reasonable person could conclude that his freedom of action was only temporarily curtailed and that a final determination of his status was simply delayed.” (Citation and punctuation omitted.) Thomas v. State, 294 Ga.App. at 111(1), 668 S.E.2d 540. Thus, the trial court was authorized to conclude that the brief detention of Owens was neither unreasonable nor illegal, and the court did not err in denying Owens' motion to suppress on this basis. See id. at 110–111(1), 668 S.E.2d 540 (Because the officer who stopped the defendant was transporting another suspect, he had to call a dispatcher and ask for assistance. The officer informed the defendant that another officer was on the way to conduct the DUI investigation, so it was clear that the detention would be temporary. While waiting, the defendant was neither handcuffed nor placed into a patrol car, although the officer did have possession of the defendant's keys and driver's license. There was no evidence, however, of any unnecessary delay or lack of diligence by the officers. Under these circumstances, the trial court properly found that the defendant was not under arrest until after he performed the field sobriety tests and, as a result, did not err in denying the motion to suppress.).¹²

3. Owens contends that the trial court erred in finding that the arresting officer had probable cause to arrest him for DUI. Although Owens obliquely referred to this issue in his motion to suppress, he failed to raise and argue the issue during the motion to suppress hearing. He also failed to assert it in a supplemental brief on his motion to suppress that he submitted to the trial court several months after the ...