Brown v. State

293 Ga. 787

750 S.E.2d 148

BROWN

v.The STATE.

No. S12G1287.

Supreme Court of Georgia.

Oct. 21, 2013.

John Arnold Steakley, John A. Steakley, P.C., Marietta, for appellant.

John Richard Edwards, Asst. Dist. Atty., Daniel James Quinn, Asst. Dist. Atty., D. Victor Reynolds, Dist. Atty., Cobb County District Attorney's Office, Richele Powell Anderson, District Attorney's Office, Marietta, for appellee.

NAHMIAS, Justice.

Appellant Douglas Wayne Brown was charged with driving under the influence and other crimes after he was stopped and later arrested at a traffic safety checkpoint, or roadblock, in Cobb County.¹ The trial court granted Appellant's motion to suppress his statements and other evidence resulting from the stop, ruling that the checkpoint violated the Fourth Amendment. The Court of Appeals reversed that ruling in a 4–3 decision. See State v. Brown, 315 Ga.App. 154, 726 S.E.2d 654 (2012). We granted Appellant's petition for certiorari, posing the question: “Did the Court of Appeals employ the correct legal analysis in assessing whether the decision to implement the roadblock was made by supervisory personnel rather than field officers, for a legitimate primary purpose?”

As explained below, we reject Appellant's initial argument that the checkpoint at which he was stopped was unconstitutional because the police sergeant who authorized it was not a “programmatic-level executive.” Appellant draws this argument from Court of Appeals cases that have improperly conflated the “supervisory personnel” requirement for implementing a specific checkpoint, see LaFontaine v. State, 269 Ga. 251, 253, 497 S.E.2d 367 (1998), and the distinct requirement that a law enforcement agency's checkpoint program have an appropriate primary purpose other than the general interest in crime control, which requires review at the “programmatic level” and may involve evidence relating to agency policy and practice and policy-makers other than the supervisor who decided to implement the particular checkpoint at issue, see City of Indianapolis v. Edmond, 531 U.S. 32, 48, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). There is no dispute in this case that the Cobb County Police Department's traffic safety checkpoint policy satisfies the Edmond requirement, and we adhere to LaFontaine's holding that the decision to implement a particular checkpoint may be made by any authorized supervisor.

However, Appellant's fallback argument—that LaFontaine's “supervisory personnel” requirement was not satisfied in this case, rendering the checkpoint at which he was stopped unconstitutional—has merit. As the dissent below correctly recognized, the dispositive issue in this case is whether the police sergeant decided to implement the roadblock as a supervisor in advance or as an officer in the field. See Brown, 315 Ga.App. at 161, 726 S.E.2d 654 (Mikell, P.J., dissenting). And as the dissent correctly concluded, the trial court's factual determination that the sergeant made the decision while acting as a field officer rather than in advance as a supervisor was supported by some evidence and therefore was not clearly erroneous, and the trial court's suppression order should have been affirmed on this basis. See id. Accordingly, we reverse the Court of Appeals' judgment.²

1. (a) In July 2008, the Cobb County Police Department adopted Policy 5.19 on Traffic Safety Checkpoints. The policy's stated purpose is

to protect the citizens of Cobb County and to monitor and check driver's licenses, driver condition, vehicle registrations, vehicle equipment, and various other requirements of the Georgia State Motor Vehicle and Traffic Code.

The policy directs that “traffic safety checkpoints will be conducted in compliance with applicable state and federal law ... in a manner that will be of minimal inconvenience to the affected motorists,” before reciting and elaborating on the five elements that this Court said in LaFontaine are required for a particular checkpoint to be deemed constitutional.³

Regarding LaFontaine's “supervisory personnel” requirement, see 269 Ga. at 253, 497 S.E.2d 367, Policy 5.19 says that “[a]ny supervisor has the authority to implement a checkpoint.” The policy specifies, however, that a checkpoint must be “approved by a supervisor prior to implementation” and explains that “[t]he decision to implement the checkpoint [must be] made by supervisory personnel rather than by officers in the field. This includes the time and location of the checkpoint.” Citing Edmond, the policy adds that checkpoints must be implemented “for a ‘legitimate primary purpose’ .... [and] cannot be for the purpose of a pretext for ‘general crime detection.’ ” Detailed instructions on the proper staffing of checkpoints are also included. ⁴

(b) On or about April 6, 2010, precinct commander Captain Charles Cox emailed the officers in the precinct and instructed them to conduct directed traffic enforcement on Groover Road in the vicinity of Allgood Road, in response to a citizen complaint about speeding, racing, and littering. Groover Road is an old, narrow, curvy road with no shoulder that runs along the edge of Blackjack Mountain. The next day, April 7, a shift supervisor, Sergeant Andrew Marchetta, sent a corporal to survey Groover Road. The officer reported to Sergeant Marchetta that the road was not conducive to traffic enforcement using speed detection devices, due to limited sight distances.

According to the trial court, Sergeant Marchetta decided on April 9 to set up a traffic safety checkpoint on Groover Road.⁵ His plan was to stop every vehicle approaching the checkpoint from either direction to check the driver's license, vehicle registration, and proof of insurance. A nearby sandpit entrance was to be used for follow-up investigations of drivers for whom screening officers developed articulable suspicion or probable cause of a motor vehicle or other offense.

Sergeant Marchetta directed Officer David Smith to assist him with the checkpoint. The checkpoint began on April 9 at approximately 6:45 p.m., while it was still daylight. The checkpoint was marked by two traffic cones, by Sergeant Marchetta's and Officer Smith's patrol cars, which were parked with their blue lights on, and by the officers themselves, who were wearing bright yellow vests. The two officers both acted as screeners. Traffic was light, and in the first 20 minutes, only seven vehicles were stopped, resulting in one citation for an invalid tag.

At about 7:05 p.m., Appellant approached the checkpoint in a Nissan Maxima with a pizza delivery sign on it. He initially attempted to drive around the checkpoint, but when Officer Smith yelled at him to stop, he did so. Sergeant Marchetta was screening a vehicle in the other lane, and as he finished, Officer Smith told the sergeant that he smelled marijuana in Appellant's car. Officer Smith then instructed Appellant to pull over to the sandpit entrance.

As Sergeant Marchetta approached Appellant's parked car, he saw Appellant make a furtive movement with his hands toward the center of the car and ordered Officer Smith to remove Appellant from the car. As Officer Smith did so, Sergeant Marchetta saw a black object in Appellant's right hand and a large folding knife clipped to his shorts. As Appellant emerged from the car, he reached towards his waist, dropped the object in his hand (which turned out to be a marijuana pipe), and stomped on it. As Officer Smith tried to control him, Appellant began to fight. He continued to struggle even after being handcuffed, at one point reaching for Officer Smith's service pistol. Officer Smith broke away from Appellant, and Sergeant Marchetta radioed for backup. After considerable effort by both officers, they were able to subdue and arrest Appellant.

(c) In August 2010, Appellant was indicted for driving under the influence of drugs, violation of the Georgia Controlled Substances Act, two counts of obstruction of a law enforcement officer, and attempted removal of a weapon from a peace officer. Appellant filed a motion to suppress on the ground that the checkpoint violated the Fourth Amendment. After an evidentiary hearing, the trial court granted the motion. The trial court acknowledged that as a supervisor, Sergeant Marchetta had the general authority to implement traffic safety checkpoints pursuant to Policy 5.19. However, the court found, “from the evidence presented,” that Sergeant Marchetta decided to implement the checkpoint at which Appellant was stopped “while acting as an officer in the field and that no evidence was presented that it was planned in advance to occur at a specific time.” The court also found that the checkpoint was not adequately staffed as required by law “to safely and efficiently conduct the checkpoint.”

Pursuant to OCGA § 5–7–1(a)(4), the State appealed the suppression order to the Court of Appeals, which reversed in a 4–3 decision. See State v. Brown, 315 Ga.App. 154, 726 S.E.2d 654 (2012). The majority characterized the evidence as uncontroverted and presenting no question regarding witness credibility, and it therefore applied de novo review to the suppression ruling. See id. at 154, 726 S.E.2d 654. The majority then rejected the trial court's finding that “no evidence was presented that [the checkpoint] was planned in advance to occur at a specific time,” asserting that “[t]he record reveals without dispute that Sergeant Marchetta decided to implement the roadblock two days before and even sent another officer to survey the road before implementing it.” Id. at 158, 726 S.E.2d 654. The majority added that “officersare not precluded as a matter of law from acting simultaneously as a supervisor and a field officer” and held that understaffing alone was insufficient to make a checkpoint unreasonable under the Fourth Amendment. Id. at 159, 726 S.E.2d 654.

Citing Miller v. State, 288 Ga. 286, 702 S.E.2d 888 (2010), the dissent took issue with the majority's decision to apply de...