State v. Hughes

Decision Date01 December 1988
Docket NumberNo. 77370,77370
PartiesThe STATE v. HUGHES.
CourtGeorgia Court of Appeals

Patrick H. Head, Sol., Beverly M. Hartung, Asst. Sol., for appellant.

Melvin S. Nash, Marietta, and Mary A. Stearns, Powder Springs, for appellee.

CARLEY, Judge.

Officer J.R. Barner, while off-duty and operating his own vehicle, was forced off the road by the erratic driving of appellee. Officer Barner followed appellee's vehicle and observed appellee commit numerous traffic offenses. When appellee eventually pulled into the parking lot of an apartment complex and stopped, Officer Barner followed and pulled in behind appellee's vehicle. Officer Barner approached appellee and identified himself as a police officer. Officer Barner was asked to produce his identification and he complied. At the request of Officer Barner, by-standers telephoned 911 to relay the report that an officer was in need of assistance in the parking lot of the apartment complex and, within three or four minutes, other officers arrived at the scene. During those few minutes before the other officers arrived, Officer Barner asked appellee for his driver's license and he engaged appellee in general conversation. At one point, appellee suggested he was simply going to drive away, but Officer Barner informed him that he would not be allowed to do so. Officer Robert Littler, who had arrived at the scene in response to Officer Barner's request for assistance, asked appellee to perform field sobriety tests. Based upon appellee's performance of those tests and the information supplied by Officer Barner, Officer Littler placed appellee under formal arrest for driving under the influence. At no time prior to this formal arrest by Officer Littler was appellee ever advised of his Miranda rights.

Prior to trial, appellee filed a motion to suppress and a motion in limine. The trial court conducted a hearing and concluded that Officer Barner had "effected an arrest of [appellee] when he informed [appellee] that he could not leave the scene of the initial stop." Because appellee had not been given his Miranda rights at that time, the trial court granted appellee's motions, precluding the introduction at appellee's trial of any testimony concerning the conversation between appellee and Officer Barner which had occurred prior to the formal arrest and of any evidence of the field sobriety tests which had been conducted by Officer Littler prior to the formal arrest. The State appeals from this order of the trial court.

According to Officer Barner, he had followed the vehicle only to investigate the cause of appellee's erratic driving behavior and at no point had he arrested appellee. "[A] police officer may make 'an intrusion short of arrest' where he has 'specific and articulable facts' which reasonably warrant such intrusion." Radowick v. State, 145 Ga.App. 231, 233(1), 244 S.E.2d 346 (1978). It is clear that Officer Barner had "specific and articulable facts" which warranted an investigation of appellee's erratic driving behavior. The trial court concluded, however, that, notwithstanding Officer Barner's testimony, the investigation had become an arrest when appellee was informed that he would not be allowed to drive away from the scene. This conclusion is erroneous. A detention of appellee was obviously necessary in order that the investigation of his erratic driving behavior could be conducted. The authority to investigate "specific and articulable facts" without the authority to detain would be meaningless. "Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment." (Emphasis supplied.) State v. Misuraca, 157 Ga.App. 361, 364, 276 S.E.2d 679 (1981). Accordingly, the mere fact that appellee was detained from driving away from the scene of the authorized investigation of his erratic driving behavior would not authorize the conclusion that he was under arrest. "Although it is obvious that every arrest includes detention, not every detention is an arrest...." Radowick v. State, supra 145 Ga.App. at 238(3), 244 S.E.2d 346. See also Franklin v. State, 143 Ga.App. 3, 5(2), 237 S.E.2d 425 (1977), holding that "[a]n investigatory stop is not automatically an arrest simply because an officer is armed with a shotgun. [Cits.]"

The relevant inquiry is whether the detention to which appellee was actually subjected exceeded the limited scope of the detention to which the officers were authorized to subject him. "Although the original 'seizure' in the instant case was 'an intrusion short of arrest' ( [cit.] ), [we must determine whether] the subsequent actions of the police overreach[ed] the minimal intrusion authorized and convert[ed] the legal stop into an illegal arrest[.]" Radowick v. State, supra 145 Ga.App. at 236(3), 244 S.E.2d 346. Under the circumstances, Officer Barner was clearly authorized to effectuate "a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification, licensing of [the] driver and [the] vehicle if appropriate, a protective 'pat-down' of the outer surface of clothing for weapons if [he had] reasonable apprehension that [appellee was] armed or dangerous, and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop. [Cits.]" Radowick v. State, supra at 237(3), 244 S.E.2d 346. The undisputed evidence of record shows that, at no point prior to appellee's formal arrest, was his detention converted into an illegal arrest. The mere fact that appellee was detained by Officer Barner for three or four minutes pending the arrival of the on-duty officers did not result in an arrest. See generally Green v. State, 168 Ga.App. 558, 309 S.E.2d 687 (1983). The officer who initiates an investigation is obviously in the best position to determine whether the circumstances confronting him warrant the presence of other officers. This is especially true where, as here, the officer is not on duty and may lack both the means and the official authority to effect a formal arrest should that prove to be necessary. Moreover, appellee was not merely physically detained during the brief three of four minute period. Officer Barner used that period of time to identify appellee, to investigate appellee's driver's license and to engage in general conversation with appellee rather than to interrogate him. Such activities are clearly authorized during the brief investigatory stop of a motorist whose prior erratic driving could have been because of intoxication or could have been the result of a medical emergency or some other cause. Upon the arrival of Officer Littler, he took over the investigation and appellee was subjected to field sobriety tests. Such tests were reasonably related to those circumstances which had justified the initial detention of appellee. It was only after appellee had failed to pass the field sobriety tests and intoxication had been confirmed as the probable explanation for his erratic driving that he was formally arrested.

"When a violator is placed in custody or under arrest at a traffic stop the protection of Miranda arises; however, roadside questioning at a routine stop does not constitute such a custodial situation. [Cit.]" Lebrun v. State, 255 Ga. 406, 407, 339 S.E.2d 227 (1986). The undisputed evidence of record shows only that appellee was subjected to a routine momentary detention for the purpose of investigating a possible traffic violation. As a result of the ensuing investigation, appellant was formally arrested for driving under the influence. It follows that the trial court erred in granting appellee's motions to suppress the introduction of the evidence which the State had acquired in full compliance with all applicable constitutional principles.


McMURRAY and BANKE, P.JJ., POPE and BENHAM, JJ., concur.

BEASLEY, J., concurs specially.

BIRDSONG, C.J., and DEEN, P.J., and SOGNIER, J., dissent.

BEASLEY, Judge, concurring specially.

I agree with the result reached by the majority but by a different route.

The trial court did not grant defendant's motion in limine and motion to suppress entirely but did suppress "all reference to the field sobriety tests ... as well as the contents of all discussions between [the uniformed officer] and the defendant with the exception of the implied consent warnings and the defendant's response thereto." The basis was that defendant had not been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The State challenges the suppression.

The ruling as to "statements" could only have related to the defendant's faulty performance of the alphabet field sobriety test, in which he could not recite the alphabet all the way through. There was no evidence of any other incriminating statement made by defendant. Barner testified that the only thing defendant spoke was a challenge to Barner's identity as a police officer and that he was going to leave. Littler did not testify about anything that defendant said other than what was expressly not suppressed and what defendant said in the alphabet test. So the question is reduced to whether the Miranda rights must be given before field sobriety tests are administered.

Not all in-custody statements are subject to Miranda. A volunteered statement,...

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    ...and acts like [a bribe], it probably is [a bribe], regardless of whether or not one uses the magic word itself." State v. Hughes, 189 Ga.App. 671, 676, 377 S.E.2d 192 (1988). (Deen, P.J., "Left to exercise their common-sense in their own way, the jury will generally determine correctly what......
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