Licata v. State

305 Ga. 498

826 S.E.2d 94

LICATA

v.The STATE.

S18G0563

Supreme Court of Georgia.

Decided: March 11, 2019

Woodrow Scott Smith, W. Scott Smith, P.C., 2060 Equitable Building, 100 Peachtree Street, N.W., Atlanta, Georgia 30303, Matthew K. Winchester, Law Offices of Matthew K. Winchester, 1800 Peachtree Street, NW, Suite 430, Atlanta, Georgia 30309, for Appellant

William Aubrey Finch, Adam Eugene Keller, Forsyth County Solicitor General's Office, 101 East Courthouse Square, Suite 2084, Cumming, Georgia 30040, for Appellee

Jimmonique R. S. Rodgers, Georgia Public Defender Council, 104 Marietta Street, 400, Brandon A. Bullard, James C. Bonner, Jr., Georgia Public Defender Council, 104 Marietta Street, NW, Suite 600, Atlanta, Georgia 30303, David Edward Clark, Clark & Towne, P.C., P.O. Box 2224, Lawrenceville, Georgia 30046, Andrew Santos Fleischman, Ross & Pines, LLC, 5555 Glenridge Connector, Suite 435, Atlanta, Georgia 30342, Joseph Scott Key, Miller & Key, PA, 79 Lawrenceville Street, McDonough, Georgia 30253, for Amicus Appellant

Patricia B. Attaway Burton, Deputy Attorney General, Ross Warren Bergethon, Deputy Solicitor-General, Paula Khristian Smith, David Scott McLaughlin, Senior Assistant Attorneys General, Andrew Alan Pinson, Solicitor-General, Christopher M. Carr, Attorney General, Tina Michelle Piper, Jameson B. Bilsborrow, Assistant Attorneys General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Peter J. Skandalakis, Robert Wright Smith, Jr., Gilbert Alexander Crosby, Prosecuting Attorneys Council of Georgia, 1590 Adamson Parkway, 4th Floor, Morrow, Georgia 30260, George Herbert Hartwig, III, District Attorney, Houston County District Attorney's Office, 201 North Perry Parkway, Perry, Georgia 31069, Lee Darragh, District Attorney, Northeastern Circuit District Attorney's Office, P.O. Box 1690, Gainesville, Georgia 30503, Matthew Carl Krull, Solicitor-General, Douglas County Solicitor General's Office, 8700 Hospital Drive, 3rd Floor, Douglasville, Georgia 30134-2264, Samuel Richard d'Entremont, A.D.A., Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville, Georgia 30046, for Amicus Appellee

Peterson, Justice.

We granted certiorari to consider what, if any, Miranda-type warning law enforcement must give before asking a suspect in custody to perform acts protected by Georgia’s right against compelled self-incrimination under Article I, Section I, Paragraph XVI of the Georgia Constitution of 1983 ("Paragraph XVI"), and whether a suspect in custody is entitled to the advice of counsel when asked to submit to a state-administered breath test. The first question rested on the premise that the suspect in this case, Michael Licata, was in custody at the time he was asked to undergo field sobriety tests, but a review of the record reveals that Licata was not actually in custody. Therefore, we affirm the Court of Appeals's ultimate conclusion that the field sobriety tests were admissible, without answering the first question. We also decline to resolve the issue regarding the advice of counsel, because it was pertinent only to the admissibility of Licata’s refusal to submit to a breath test, and this determination must be reconsidered in the light of our recent opinion in Elliott v. State, 305 Ga. 179, 824 S.E.2d 265, 2019 WL 654178 (Case No. S18A1204, decided February 18, 2019), wherein we concluded that refusal evidence is inadmissible. Therefore, we vacate the Court of Appeals' opinion regarding the admissibility of the refusal evidence and remand for further proceedings.

The relevant facts are not disputed. Licata’s vehicle was stopped by police because it matched the description of a vehicle that had recently been in an accident and had significant front-end damage. Prior to the stop, sparks were coming off the asphalt as Licata had been driving on the vehicle’s rims. The police officer who ultimately arrested Licata approached Licata and confirmed with Licata that Licata had been involved in an accident. The arresting officer told Licata that he wanted to discuss the accident but he wanted to read Miranda warnings to Licata first. After doing so, the arresting officer asked Licata several questions about the accident. A short time later, the officer asked Licata to perform field sobriety tests. Licata complied and failed the tests. The officer then placed Licata under arrest for DUI less safe, read the implied consent warning, and asked Licata if he would submit to a breath test. Licata twice asked to call his attorney but was denied that request. Licata ultimately responded that he would not submit to a breath test.

Following his arrest and prior to trial, Licata sought to suppress the results of his field sobriety tests and evidence that he refused to submit to the breath test. The trial court granted Licata’s motion, concluding that the field sobriety evaluations should be suppressed because Licata was in custody and was not informed that he had a right to refuse to perform incriminating acts, a right protected by Paragraph XVI. See Olevik v. State, 302 Ga. 228, 806 S.E.2d 505 (2017). The trial court ruled that Licata’s refusal to submit to the breath test should be suppressed because he had requested an attorney pursuant to the Miranda warnings read to him.

The State appealed, and the Court of Appeals reversed. State v. Licata, 343 Ga. App. 874, 806 S.E.2d 292 (2017). We agreed to hear Licata’s challenges on certiorari.

1. In reversing the trial court’s suppression of the results of Licata’s field sobriety tests, the Court of Appeals relied on our decision in Price v. State, 269 Ga. 222, 498 S.E.2d 262 (1998), where we stated that "[d]ecisions of this Court and the [C]ourt of [A]ppeals have routinely held that under Georgia law Miranda warnings must precede a request to perform a field sobriety test only when the suspect is in custody." Id. at 225 (3), 498 S.E.2d 262 (punctuation and footnote omitted). The Court of Appeals did not address whether Licata was in custody but held that the trial court erred in concluding that Paragraph XVI requires police to give a warning that suspects have a right not to incriminate themselves through an affirmative act.¹ Id. at 877-878 (2), 806 S.E.2d 292. The Court of Appeals thought there was "at least arguably" tension between Price and this Court’s construction of Paragraph XVI in cases like Olevik, and properly concluded that any tension was to be resolved by this Court. See id. at 878 (2), 806 S.E.2d 292.

We asked the parties to address this issue by briefing whether Miranda-type warnings are required before a suspect in police custody is asked to perform acts protected by Paragraph XVI. But Licata was not actually in custody when he was asked to undergo the field sobriety tests. Even under Price, Miranda warnings for field sobriety tests are required only when a person is in custody. Price, 269 Ga. at 225 (3), 498 S.E.2d 262 (stating that warning is required "only when the suspect is in custody, " and holding that, because the defendant was in custody, the failure to give Miranda warnings rendered the field sobriety test evidence inadmissible (emphasis added; footnote and punctuation omitted)).

Our conclusion that Licata was not in custody is based upon the undisputed facts and a video recording of the roadside interrogation.² Generally, mere roadside questioning during a traffic stop does not constitute a custodial situation. See, e.g., Berkemer v. McCarty, 468 U.S. 420, 437-440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). The United States Supreme Court has explained that although a traffic stop "significantly curtails" the driver’s freedom of movement, such stops are not generally thought to be custodial for two reasons. First, the detention attendant to a traffic stop is usually temporary and brief, with most drivers expecting to answer a few questions and maybe receive a citation before being allowed to continue on their way, while a stationhouse interrogation, in comparison, is often prolonged and the detainee usually knows the questioning will not cease until he provides sufficient information to the police. Id. at 437-438, 104 S.Ct. 3138. Second, because traffic stops are conducted in public and usually only by one or two police officers, there is less risk that "unscrupulous [officers] will use illegitimate means to elicit self-incriminating statements" and the driver’s vulnerability or fear of abuse is dampened. Id. at 438-439, 104 S.Ct. 3138. Because of these two features, "a person detained as a result of a traffic stop is not in Miranda custody because such detention does not sufficiently impair the detained person’s free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights." Howes v. Fields, 565 U.S. 499, 510, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012) (citing Berkemer, 468 U.S. at 437, 104 S.Ct. 3138 ).

With this backdrop, we must examine the totality of the circumstances to determine whether "a reasonable person in [Licata’s] position would have thought the detention would not be temporary." Price, 269 Ga. at 225 (3), 498 S.E.2d 262 (footnote and punctuation omitted). In determining whether a suspect is in custody, we must consider the totality of the circumstances without regard for the subjective views of the suspect or the interrogating officer. See Smith v. State, 297 Ga. 667, 668-669 (2), 777 S.E.2d 453 (2015) ; Sosniak v. State, 287 Ga. 279, 280 (1), 695 S.E.2d 604 (2010). No one factor is dispositive in deciding the custody issue, although several important considerations to keep in mind include: "the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning." Howes, 565 U.S. at 509, 132 S.Ct. 1181 (citations and punctuation omitted). The reading of Miranda warnings is another factor to consider, but...