Jacobs v. State

338 Ga.App. 743

791 S.E.2d 844

Jacobs

v.The State.

A16A1115

Court of Appeals of Georgia.

September 29, 2016

Rafe Banks III, Cumming, for Appellant.

David Martin McElyea, Jessica K. Moss, Gainesville, for Appellee.

Peterson, Judge.

Brian Evan Jacobs appeals from his conviction for DUI per se. He argues that the trial court erred in denying his motion to suppress (1) certain statements he made to police and (2) the results of a chemical testing of his blood. The trial court correctly concluded that Jacobs was not in custody when he made the statements in question and therefore the statements were not taken in violation of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court also correctly rejected Jacobs' request to suppress the results of the blood test because Jacobs freely and voluntarily consented to the test. Therefore, we affirm the trial court's denial of Jacobs' motion to suppress and affirm his conviction.

“On appeal from a ruling on a motion to suppress, we construe the evidence most favorably to affirming the trial court's factual findings and judgment.” Brooks v. State , 285 Ga.App. 624, 626, 647 S.E.2d 328 (2007). The trial court's application of the law to undisputed facts is subject to de novo review. State v. Palmer , 285 Ga. 75, 78, 673 S.E.2d 237 (2009) (citation omitted). However, “the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous.”

Perez v. State , 249 Ga.App. 399, 399–400, 547 S.E.2d 699 (2001) (citation omitted).

So viewed, the facts show that in April 2013, police received a report that a vehicle had struck a vehicle gate at an apartment complex. The responding officer found the exit gate stuck partially open, with car debris scattered around it. Within minutes, the officer located in the complex's parking lot an unoccupied truck with damage that appeared to match the debris he had found.

While the officer was running the truck's license plate, Jacobs' girlfriend approached the officer and inquired about Jacobs' well being. She said Jacobs had called her to say he was hurt and needed to go to the hospital. At some point, she also told the officer that she had seen Jacobs consuming alcohol at a restaurant before he drove to the apartment complex. The girlfriend called Jacobs, who was in her apartment, and permitted the officer to speak with him by phone. Jacobs told the officer that he had been driving the truck. The officer asked Jacobs to come outside and speak with him. Jacobs initially was hesitant but agreed after the officer threatened to seek a warrant for his arrest.

Jacobs came outside and spoke to the officer. Jacobs said that he had tried to enter the complex via the exit gate because he could not get the entrance gate to open. Jacobs was limping and appeared to be injured but refused the officer's initial offer of medical attention.

Jacobs appeared to the officer to be under the influence of alcohol, having an odor of alcohol on his breath.¹ He reported having consumed two drinks in a bowling alley that night, as well as drinking additional alcohol after returning to the apartment. The officer performed no field sobriety tests, explaining at the suppression hearing that he chose not to due to Jacobs' injuries.

Determining that Jacobs had been under the influence of alcohol when he struck the gate with his vehicle, the officer placed Jacobs under arrest and put him in handcuffs. The officer read Jacobs the Georgia Implied Consent Notice:

Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of drugs or alcohol. If you refuse this testing, your Georgia driver's license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver's license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your blood under the implied consent law? See OCGA § 40–5–67.1(b)(2). Jacobs verbally agreed to a blood test. Jacobs was transported to a fire station where a paramedic drew his blood. The results showed him to have a blood-alcohol concentration of 0.202. At no point during the encounter did the officer advise Jacobs of his rights pursuant to Miranda.

Jacobs moved to suppress his statements provided on the scene on the basis that he was not given Miranda warnings, and moved to suppress the results of the blood test on the basis that he did not freely and voluntarily consent to the test. After a pre-trial hearing at which the officer testified, the trial court denied both requests. The case proceeded to trial, and a jury convicted Jacobs on all charges. Jacobs filed a motion for new trial, which the trial court denied. Shortly thereafter, our Supreme Court decided Williams v. State , 296 Ga. 817, 819, 771 S.E.2d 373 (2015), rejecting a rule automatically equating an affirmative response to the implied consent notice with actual consent to a search within the meaning of the Fourth Amendment. Based on that decision, Jacobs asked the trial court to reconsider its denial of his motion for new trial. The trial court issued a new order denying the motion for reconsideration, finding that although Jacobs was intoxicated at the time, he freely and voluntarily gave his consent to the blood test. We dismissed Jacobs' initial appeal as untimely, but the trial court then granted Jacobs leave to file an out-of-time appeal.

1. Jacobs first challenges the use of statements he made to police as taken in violation of Miranda. We disagree with his argument.

Law enforcement officers are required to give Miranda warnings prior to questioning only where the subject is in police custody, having either been formally arrested or restrained to an extent associated with such an arrest. Where one has not been arrested, he will be considered to be in custody only under circumstances where a reasonable person in the same situation would perceive that he was deprived of his freedom of action in a meaningful way.

Smith v. State , 297 Ga. 667, 668, 777 S.E.2d 453 (2015) (citations and punctuation omitted). A trial court must consider the totality of the circumstances to determine whether a reasonable person would believe he is not at liberty to leave. Id. at 668–69 (2), 777 S.E.2d 453. Factors indicating a defendant is not in custody include that the defendant voluntarily accompanied an officer to another location, that the officer told the defendant he was not under arrest or otherwise in custody, that the defendant was allowed to speak to others, and that the defendant was not handcuffed or otherwise restrained. Id. at 669–70 (2), 777 S.E.2d 453. “The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and we will not disturb the trial court's determination unless it is clearly erroneous.” Parker v. State , 307 Ga.App. 61, 65, 704 S.E.2d 438 (2010) (footnote omitted).

Here, the trial court rejected the defense's Miranda argument because Jacobs was not in handcuffs when he made the statements, there was no evidence of flashing police lights, guns drawn or other officers present, and Jacobs was standing in a parking lot, not in jail or a patrol car. The trial court correctly concluded that, considering the totality of the circumstances, Jacobs was not in custody when he made the statements in question. “[R]oadside questioning during the investigation of a routine traffic accident generally does not constitute a custodial situation.” State v. Pastorini , 222 Ga.App. 316, 317, 474 S.E.2d 122 (1996). We also have held similar investigations to be non-custodial where a suspect was put through field sobriety tests in a parking lot, see Parker v. State , 307 Ga.App. 61, 65, 704 S.E.2d 438 (2010), or asked to step out of her home, see Mona h an v. State , 292 Ga.App. 655, 658–59, 665 S.E.2d 387 (2008). Here, Jacobs voluntarily, albeit reluctantly, exited the apartment and walked down a set of stairs to speak with the officer. Jacobs was not handcuffed or otherwise restrained at that point. Although there is no evidence that the officer explicitly told him he was not under arrest, the officer did not tell him that he was under arrest, either.

This case is similar to Shel t on v. State , 214 Ga.App. 166, 447 S.E.2d 115 (1994), in which we held that a defendant was not in custody when he spoke to an officer investigating a vehicle accident that took place in an apartment complex parking lot. The officer located the defendant in his apartment at the complex and spoke to the defendant both in the apartment and on the stairs leading from the apartment as the officer escorted the defendant to the parking lot. Id. at 167–68 (1), 447 S.E.2d 115. The officer gave unrebutted testimony that the defendant was not told that he was not free to leave and was not placed in handcuffs, and that the defendant's access to leaving was not blocked. Id. at 167, 447 S.E.2d 115. Although the defendant was arrested after being identified by a witness, we held that his pre-Miranda statement given prior to the arrest was admissible as there was “no indication that the defendant had been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 168 (1), 447 S.E.2d 115 (citation and punctuation omitted).

Similarly, in Mona h an, an officer knocked on the door of a DUI...