State v. Kirbabas

• Decision Date: 06 May 1998
• Docket Number: No. A98A1020, No. A98A1021.
• Citation: 232 Ga. App. 474,502 S.E.2d 314
• Parties: The STATE v. KIRBABAS. KIRBABAS v. The STATE.
• Court: Georgia Court of Appeals

502 S.E.2d 314

232 Ga. App. 474

The STATE v. KIRBABAS.

KIRBABAS v. The STATE.

Nos. A98A1020, A98A1021.

Court of Appeals of Georgia.

May 6, 1998.

G. Channing Ruskell, Solicitor, Thomas J. Melanson, Barry W. Hixson, Assistant Solicitors, for appellant.

John B. Sumner, Woodstock, for appellee.

ELDRIDGE, Judge.

On June 7, 1997, Margaret Kirbabas, defendant-appellee and appellant, was observed weaving in her car on Towne Lake Parkway by Officer David Wooldridge of the Woodstock Police Department and was stopped. Officer Wooldridge saw the defendant cross completely the right lane marker and then drift to the left to partially cross the centerline; such weaving and defendant's slow speed raised Wooldridge's articulable suspicion that the defendant could be impaired.

Upon beginning his investigatory stop, Wooldridge smelled about the defendant the odor of alcohol and observed a slightly slurred speech. He asked the defendant if she had been drinking; she said yes. He asked for and received her driver's license and insurance card, checked them, and placed them in his ticket book in his patrol car while he completed his investigation.

Wooldridge requested that the defendant undergo the field sobriety tests, and she agreed to do them. Wooldridge had been certified to conduct the standardized field sobriety tests and had conducted 15 to 20 field sobriety tests at that time.

Upon performing the horizontal gaze nystagmus ("HGN") test, he noted six positive indications of alcohol impairment. Defendant next performed the walk and turn test and exhibited difficulty with balance, broke her stance during instruction, and made an incorrect turn. Defendant next did a one-leg stand but put her foot down prematurely four times and had to raise her arms to maintain balance; she was deemed to have failed this test by Wooldridge. Finally, the defendant was administered an alco-sensor breath test, which indicated positive for alcohol.

Wooldridge came to the opinion from his observations and investigation that the defendant was a less safe driver under the influence of alcohol. He arrested her, placed her in handcuffs, and read her the Georgia implied consent notice. She stated that she did not want to take the State-administered breath test. At the Woodstock Police Station, defendant agreed to submit to the Intoxilyzer breath test. However, defendant insufficiently blew into the tube for the audible tone to be activated. After being given another chance to take the test, defendant refused because she was "scared." Wooldridge then informed the defendant "Fine. I'll suspend your license." He then prepared a Department of Public Safety ("DPS") Form 1205 for suspension.

At the motion to suppress hearing, the trial court held any field sobriety test results after the HGN were inadmissible because the defendant was in custody under arrest and had not been given a Miranda warning.

Case No. A98A1020

The State's sole enumeration of error is that the trial court erred in finding that the defendant was under arrest following the administration of the HGN test, and, prior to the rest of the field sobriety tests, because, at that time, the officer "believed" that the defendant was probably an impaired driver; thus, the trial court concluded that Miranda warnings should have been given before the field sobriety tests were conducted. We agree with the State such conclusion was error under the facts of this case.

"For the proscriptions of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 [(1966)] to apply, `a person must be taken into custody or otherwise deprived of his freedom of action in some significant way.' Lobdell v. State, 256 Ga. 769, 773(6), 353 S.E.2d 799 [ (1987) ]. `In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but "the ultimate inquiry is simply whether there (was) a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." (Cits.)' Stansbury v, California, 511 U.S. 318, 322, 114 S.Ct. 1526, [1529] 128 L.Ed.2d 293 [ (1994) ]." McConville v. State, 228 Ga.App. 463, 465, 491 S.E.2d 900 (1997).

"The test for determining whether a person is `in custody' at a traffic stop is if a reasonable person in the suspect's position would have thought the detention would not be temporary. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151-52, 82 L.Ed.2d 317 (1984)." (Emphasis supplied.) Hughes v. State, 259 Ga. 227, 228, 378 S.E.2d 853 (1989); see also Price v. State, 269 Ga. 222, 498 S.E.2d 262 (1998); State v. O'Donnell, 225 Ga.App. 502, 503(1), 484 S.E.2d 313 (1997).

In Hughes v. State, supra, the arresting officer made an arrest when he told the defendant "that he was not free to leave the scene of the initial stop" so that the field sobriety tests were performed after an arrest without giving a Miranda warning. In State v. O'Donnell, supra, the defendant, after a serious accident, left the scene and was involved in a second accident; the defendant was arrested and brought back to the scene of the first accident before being given the field sobriety tests and without receiving a Miranda warning. In this case, the officer did not place the defendant under arrest until after the field sobriety and alco-sensor tests had been administered.

Under both Berkemer v. McCarty, supra, and Hughes v. State, supra, it is the reasonable belief of an ordinary person under such circumstances, and not the subjective "belief" or intent of the officer, that determines whether an arrest has been effected. See Morrissette v. State, 229 Ga.App. 420, 422(1)(a), 494 S.E.2d 8 (1997). Thus, when an officer tells a defendant that she is going to jail, whether or not she consents to submit to a field sobriety test, "[u]nder these circumstances we must conclude that, having been informed that she was going to jail, a reasonable person would have believed that the detention was not temporary. Therefore, the failure to give the Miranda warnings renders evidence regarding the field sobriety tests inadmissible." Price v. State, supra at 225(3), 498 S.E.2d 262.

Here, however, absent the officer making any statement that would cause a reasonable person to believe that she was under arrest and not temporarily detained during an investigation, the officer's "belief" that probable cause exists to make an arrest does not determine when the arrest is effectuated until the officer overtly acts so that a reasonable person would believe she was under arrest.

"`In effect, (defendant) would have us rule that once a police officer has probable cause to arrest, he must arrest and Mirandize. But that is not the law. Whether a police officer (subjectively) focused his unarticulated suspicions upon the individual being questioned is of no consequence for Miranda purposes. Stansbury v. California, [supra].' Hodges v. State, 265 Ga. 870, 872(2), 463 S.E.2d 16 [(1995)]." McConville v. State, supra at 465-466, 491 S.E.2d 900.

Under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), an officer may make an investigatory stop where the officer has a reasonable articulable suspicion of criminal activity. This constitutes "brief `seizures' that must be supported by reasonable suspicion" but does not constitute an arrest requiring that Miranda warnings be given in order to question. McClain v. State, 226 Ga.App. 714, 716(1), 487 S.E.2d 471 (1997); see also Wells v. State, 227 Ga. App. 521, 523(1), 489 S.E.2d 307 (1997); Crosby v. State, 214 Ga.App. 753, 449 S.E.2d 147 (1994); Cheatham v. State, 204 Ga.App. 483, 484(1), 419 S.E.2d 920 (1992). "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. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action—a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. A Terry stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct." (Citations and punctuation omitted.) Fritzius v. State, 225 Ga.App. 642, 643-644, 484 S.E.2d 743 (1997); Buffington v. State, 228 Ga.App. 810, 811, 492 S.E.2d 762 (1997). "The temporary detention of a motorist based upon probable cause that [she] violated a traffic law does not implicate the Fourth Amendment's prohibition against unreasonable searches and seizures, even if a reasonable officer would not have made the stop absent an ulterior motive. [Cit.] In other words, if the arresting officer witnessed the driver breaking even a relatively minor traffic law, a motion to suppress under the Fourth Amendment arguing that the stop was pretextual must fail. See Jackson v. State, 267 Ga. 130, 131(5)(a), 475 S.E.2d 637 (1996)." Buffington v. State, 229 Ga.App. 450, 451, 494 S.E.2d 272 (1997); see also Brantley v. State, 226 Ga.App. 872, 873, 487 S.E.2d 412 (1997); Hines v. State, 214 Ga. App. 476, 477, 448 S.E.2d 226 (1994).

The objective test is that "the police can be said to have seized an individual `only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988); see also Mosely v. State, 269 Ga. 17, 495 S.E.2d 9 (1998); State v. Wright, 221 Ga.App. 202, 207(4), 470 S.E.2d 916 (1996). For seizure of a person "there must be either the application of physical force, however slight, or, where that is absent, submission to an officer's `show of authority' to restrain the subject's liberty. See...