State v. Criswell

327 Ga.App. 377

759 S.E.2d 255

The STATE

v.CRISWELL.

No. A14A0527.

Court of Appeals of Georgia.

May 29, 2014.

Barry William Hixson, Jansen Thomas Jones, Jessica K. Moss, for Appellant.

James Rodney Hamilton, Cumming, for Appellee.

RAY, Judge.

Cristopher Criswell was charged with driving under the influence of alcohol, less safe (OCGA § 40–6–391(a)(1)). He moved to suppress the evidence regarding statements he made to police officers and evidence related to the administration or refusal of any field sobriety tests or State-administered chemical breath tests. After a hearing, the trial court granted his motion in part. The trial court found that the testimony of an officer, as to his observation of certain signs of impairment while he was standing 12 to 15 feet away from Criswell, was not credible. The trial court additionally found that observations the officer made while in closer contact with Criswell had to be suppressed because the officer's entry onto Criswell's driveway amounted to an illegal second-tier encounter for which the officer lacked reasonable, articulable suspicion. Finally, the trial court found that the officer lacked probable cause to arrest Criswell. The State filed this appeal arguing, inter alia, that the officer's entry onto Criswell's property was legal and that the trial court's other determinations resulting from that initial error must be overturned. We agree.

In reviewing the grant or denial of a motion to suppress, we construe the evidence in a light most favorable to upholding the trial court's findings and judgment. When the trial court's findings are based upon conflicting evidence, we will not disturb the lower court's ruling if there is any evidence to support its findings, and we accept that court's credibility assessments unless clearly erroneous.

(Footnote omitted.) McCormack v. State, 325 Ga.App. 183, 184(1), 751 S.E.2d 904 (2013). However, “[w]here, as here, [an] issue turns on the question of whether a trial court committed an error of law in granting a motion to suppress, we apply a de novo standard of review. The appellate court owes no deference to the trial court's conclusions of law.” (Punctuation and footnotes omitted.) State v. Gauthier, 326 Ga.App. 473, 756 S.E.2d 705 (2014).

The evidence, which included a police video of the incident that was played for the trial court,¹ shows that at about 1:43 a.m. on January 26, 2013, Officer Stephen Cohen of the Holly Springs Police Department was dispatched to a residential address after a person there called police to say that a vehicle was blocking her driveway. Police found Matthew Jenkins passed out behind the wheel. After rousing Jenkins, officers began questioning him. Officers could smell alcohol, and Jenkins appeared inebriated and admitted he had been drinking. Jenkins stated that he was staying with someone in the house next to the residence whose driveway he was blocking.

While officers were questioning Jenkins, another vehicle came down the street and parked in the driveway of the home where Jenkins told officers he was staying. Another officer who was accompanying Cohen, Sergeant Cullen LaFrance of the Holly Springs Police Department, walked over to talk with the driver of the other vehicle. That driver was Criswell.

LaFrance testified that he wanted to talk to Criswell to determine whether Jenkins actually belonged in the neighborhood and to verify Jenkins' story as to why he was there. LaFrance made his initial contact with Criswell when he was standing 12 to 15 feet away from him. Their initial contact was consensual. LaFrance then walked up the driveway toward Criswell. LaFrance testified that “[a]s I was walking up his driveway, he was exiting his vehicle and I could tell he was unsteady on his feet as he got out of the car and had to use the door for balance as he closed it.... He walked to the back bumper of his car.” LaFrance stated that at this point, he was standing “maybe 15 feet in [Criswell's] driveway[,]” (emphasis supplied), and that he then walked to the rear bumper of Criswell's car, where the two engaged in conversation. The undisputed testimony shows that Criswell walked toward the officer, not away from him. LaFrance observed that Criswell's “speech was slurred. He had red, bloodshot, watery eyes and he had the strong odor of alcoholic beverage on his breath and person.” LaFrance testified that he and Criswell then

walked ... to the end of the driveway ... so [Criswell] could identify Mr. Jenkins[.] ... So from the time that I observed where he was, he gets out of the car. I made observations; he walks to the rear of his bumper. I asked if he knew [Jenkins]. He asked who it was. I asked if he recognized the truck. We had a conversation about that for a minute.

On the police video, LaFrance can be heard asking Criswell how much alcohol he has had to drink. Criswell denied drinking. Although the police video provides an audible record of the conversation between LaFrance and Criswell, they are not visible on most of the video because Jenkins' truck blocks the camera's view of them.

1. The State argues that the trial court erred in determining that LaFrance's warrantless entry onto Criswell's property was an illegal second-tier encounter. Finding error, we agree.

In its order, the trial court wrote that, “[t]he decision to grant this motion is based largely upon the credibility of Sgt. LaFrance's testimony in this case.” It is clear from the context of the trial court's order that this statement relates to the trial court's disbelief that LaFrance could have smelled alcohol and observed Criswell's bloodshot eyes from 12 to 15 feet away. The trial court specifically noted LaFrance's observations of Criswell's

eye manifestations of impairment, balance issues, slurred speech, and the odor of alcohol. Although this [c]ourt acknowledges that typically all of these manifestations would be sufficient probable cause to arrest for DUI, in this particular case they cannot be properly considered. There is no way that Sgt. LaFrance could possibly have seen the eye manifestations during any consensual part of the encounter. The consensual part of the encounter occurred when there was a distance of twelve to fifteen feet between the Defendant and the officer. At that distance with the poor lighting conditions, there is no way that Sgt. LaFrance could have seen the eye manifestations of impairment. There is also no way that Sgt. LaFrance could have smelled an odor of alcoholic beverage on the Defendant's breath at that distance. Both the eye manifestations and the odor knowledge must have been gained by the Officer at a short distance away from the Defendant.

(Emphasis supplied.) The trial court found, inter alia, that “[t]he only time that Sgt. LaFrance was close enough to the Defendant to notice these things was ... when Sgt. LaFrance stepped onto the Defendant's property [.]” The trial court then reasoned that this entry onto Criswell's property was an illegal second-tier encounter for which the officer lacked reasonable articulable suspicion because the only manifestations that the officer legally observed occurred when he was 12 to 15 feet away—that is, the balance issues, slurred speech, and confusion—and that these were insufficient to create reasonable, articulable suspicion.

The undisputed facts show that the officer's initial encounter with Criswell took place from 12 to 15 feet away, when he was standing in Criswell's yard. The trial court found this contact to be consensual, and this issue is not before us on appeal. The undisputed testimony shows that LaFrance then walked onto Criswell's driveway, and it is this entry onto the property that the trial court found to an illegal second-tier encounter. This decision is error.

We need not make any decision regarding the trial court's determination as to LaFrance's credibility as it relates to his observations from his initial contact when he was standing 12 to 15 feet away from Criswell. Indeed, the credibility of witnesses and the weight to be accorded their testimony lies solely with the trier of fact. Tate v. State, 264 Ga. 53, 56(3), 440 S.E.2d 646 (1994). We address only the legality of LaFrance's entry onto Criswell's driveway.

Under the Fourth Amendment, police officers are prohibited from entering a person's home or its curtilage without a warrant absent consent or a showing of exigent circumstances. This broad rule is subject to the exception that any visitor, including a police officer, may enter the curtilage of a house when that visitor takes the same route as would any guest, deliveryman, postal employee, or other caller.

(Punctuation and footnotes omitted.) State v. Gravitt, 289 Ga.App. 868, 870(2)(a), 658 S.E.2d 424 (2008). The United States Supreme Court has defined four factors to be used in analyzing the extent of a home's curtilage:

the proximity of the area claimed to be in curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.

(Citations omitted.) United States v. Dunn, 480 U.S. 294, 301(II), 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). A determination of whether evidence is discovered in the protected curtilage of a home is a mixed question of law and fact. Gravitt, supra at 871(2)(a), 658 S.E.2d 424. As neither party disputes that the officer was standing in the driveway, our review of the application of the law to the facts is de novo, and we will not disturb the trial court's factual findings if there is any evidence to support them. Id. at 868, 658 S.E.2d 424.

Here, the video shows that Criswell's driveway was open to the street, and had no gates, fences, or bushes blocking a visitor's access or visibility. The driveway in the instant case is clearly the same route that would be used by “any guest, deliveryman, postal employee, or...