State v. Kaylor, A98A1952.

• Decision Date: 22 September 1998
• Docket Number: No. A98A1952.,A98A1952.
• Parties: The STATE v. KAYLOR.
• Court: Georgia Court of Appeals

507 S.E.2d 233

234 Ga. App. 495

The STATE v. KAYLOR.

No. A98A1952.

Court of Appeals of Georgia.

September 22, 1998.

Keith C. Martin, Solicitor, Kimberly A. Gross, Michael L. Tripp, Assistant Solicitors, for appellant.

Thomas S. Barton, Morrow, for appellee.

BLACKBURN, Judge.

The State does not enumerate as error, or argue on appeal, the trial court's exclusion of the breathalyzer test based on the State's failure to accommodate Kaylor's request for an independent blood test pursuant to OCGA § 40-6-392. Rather, the State's appeal and enumeration of error is limited to the issue of whether Rieck's initial contact with Kaylor violated Kaylor's Fourth Amendment rights, and that is the only issue which we address. For the reasons set forth below, we reverse.

" When reviewing a trial court's decision on a motion to suppress, this court's responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court's findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them." (Citations omitted.) Morgan v. State, 195 Ga.App. 732, 735(3), 394 S.E.2d 639 (1990).

As found by the trial court, the facts in this case are as follows. In the early morning hours of October 11, 1997, Officer William Rieck received a dispatch from police headquarters that an anonymous caller had reported to 911 emergency services that a drunk driver was operating a green Ford Aerostar van with a certain license plate number. The van, on which a police "lookout" had been placed, passed by Rieck's vehicle in the opposite direction and pulled into the parking lot of a convenience store. Rieck observed no traffic violations being committed. Rieck then turned his vehicle around and parked his car behind the van, without blocking the van's means of egress. Rieck did not employ the lights on his police vehicle. While Kaylor was inside the store, Rieck confirmed that the van's license plate number matched the number provided by the tipster.

After Kaylor exited the store carrying a cola and a bag of potato chips, Rieck approached him, noting that Kaylor's appearance was disheveled. Rieck advised Kaylor that his van matched the description of a vehicle reported to have been operated by a drunk driver, and he requested Kaylor's driver's license and proof of insurance. Rieck detected the smell of an alcoholic beverage on Kaylor's breath and person, and Kaylor, whose stance was unsteady, had trouble understanding Rieck's instructions to stop eating and drinking long enough to answer his questions. After other officers arrived at the scene, Rieck asked Kaylor to perform a "heel to toe" field sobriety test, which Kaylor performed poorly. Kaylor refused to participate in any other tests.

Rieck then took Kaylor into custody, read implied consent rights to him, and asked him to submit to a state-administered breath test. This test was later performed at the police department, and the registered results were a blood-alcohol level of .088 and .085. However, the trial court found that the results of this test had to be excluded because Rieck's request for an additional, independent test was not appropriately accommodated pursuant to OCGA § 40-6-392.

"Under our law, there are three levels of police-citizen encounters. 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. This tier provides no Fourth Amendment protection.... 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 third tier of police-citizen encounters include "full-scale arrests that must be supported by probable...