State v. Holt

334 Ga.App. 610

780 S.E.2d 44

STATE

v.HOLT.

No. A15A1483.

Court of Appeals of Georgia.

Nov. 17, 2015.

Certiorari Denied Feb. 22, 2016.

Jessica K. Moss, Jeffrey G. Huong, for Appellant.

Melvin Samuel Nash, Marietta, for Appellee.

ELLINGTON, Presiding Judge.

The State of Georgia appeals the trial court's order granting, in part, Jamie Sue Holt's motion to suppress evidence derived following her detention in Cherokee County for suspicion of driving under the influence of alcohol. For the reasons set forth below, we conclude that the trial court erred in suppressing the evidence and reverse.

"[O]n appeal from a ruling on a motion to suppress, we defer to the trial court's factual findings and credibility determinations, but review de novo the court's application of the law to the undisputed facts." (Footnote omitted.) State v. Mosley, 321 Ga.App. 236, 739 S.E.2d 106 (2013). See also Hughes v. State, 296 Ga. 744, 746(1), 770 S.E.2d 636 (2015) ("When the facts material to a motion to suppress are disputed, it generally is for the trial judge to resolve those disputes and determine the material facts."). Although we defer to the trial court's findings of fact and its determination of credibility, "where controlling facts are not in dispute, such as those facts discernible from a videotape, our review is de novo." (Citation, punctuation, and footnote omitted.) Boyd v. State, 315 Ga.App. 256, 257(1), 726 S.E.2d 746 (2012).

The evidence shows that on April 28, 2014, a Georgia State Patrol trooper was dispatched to investigate an incident in which a car sideswiped a vending machine at a Kroger gas station. After the trooper arrived at the scene at 4:44 p.m., a man told the trooper that Holt was "being a little belligerent, not acting normal, and ... might have had something to drink."¹ The trooper approached Holt, who was pumping gas, and asked her if she had been involved in the incident. The trooper determined that Holt was not the driver of the car that hit the vending machine. However, during their conversation the trooper smelled alcohol on Holt's breath. The officer also noticed that Holt's "speech was a little off" and that she had bloodshot eyes, and she admitted to having had one or two glasses of wine and to driving to the gas station. The trooper asked Holt to walk with him to his patrol car.

The trooper's patrol car-mounted video showed the trooper and Holt, at 4:51 p.m., standing in front of the patrol car. Holt submitted to an alco-sensor test, and, after several attempts, she gave a sufficient sample which tested positive for alcohol and gave a numerical result of ".124," which the trooper had Holt read aloud. The trooper told Holt that she had consumed more than a glass of wine, and to "hang out right there" in front of the patrol car. He also said that he would check her again, and indicated that if the test results went down, "maybe we'll get somebody to get you a ride."

The video showed that from 4:54 p.m. to 5:06 p.m., the trooper turned his investigation to the other driver and the incident for which he had been dispatched. Holt was shown walking on and off the screen several times, alone and without restraints, and the trooper told her to remain in front of the patrol car. At 5:05 p.m., the trooper called on his radio for another trooper. Approximately 12 minutes after the initial alco-sensor test, the trooper returned to Holt to conduct a second test. The alco-sensor test was again positive, and the numerical results were the same. The trooper instructed Holt to "hang out right here" at the patrol car, and he told Holt that, "we're going to do some more testing, but first, I gotta get this taken care of, okay[?]." During the conversation Holt asked the trooper, "What's the legal limit?" and the trooper responded that it was 0.08.

The second alco-sensor test was completed at 5:07 p.m., and the trooper, while apparently on his cell phone, spoke with another trooper at 5:10 p.m. The trooper could be heard saying, "I've got two DUIs; I'll give you one of them. One alcohol, one drugs."² The trooper then continued his investigation into the driver who crashed into the vending machine. The video showed that the trooper conducted a field sobriety test of the other driver, placed her under arrest, and then read the implied consent rights, all of which occurred from 5:11 p.m. through 5:28 p.m. according to the time stamp on the video. The trooper could then be heard discussing post-arrest issues with the other driver and, apparently, her mother, for several minutes. The trooper informed Holt at 5:38 p.m. that another trooper was on his way.

The second trooper arrived at 5:39 p.m., approximately 50 minutes after Holt was first seen on the video standing at the first trooper's police car. Within three minutes of the second trooper's arrival, the first trooper left with the other driver in his custody. Holt appeared on the second trooper's video at 5:43 p.m. The second trooper completed Holt's field sobriety test by 5:48 p.m., when he took Holt into custody, and he read her the implied consent notice at 5:53 p.m.

The first trooper testified at the motion-to-suppress hearing that he conducted a portion of an horizontal gaze nystagmus test, which is a field sobriety evaluation, and that he saw sustained nystagmus at maximum deviation in Holt's eyes. The trial court found that the test was conducted off view of the video "at some point." The first trooper also testified that he turned over Holt's investigation to the second trooper because he wanted to "answer the call" for which he was initially dispatched. According to the first trooper, he believed that Holt had been drinking alcohol before driving, but he did not determine whether Holt was less safe to drive. The second trooper testified that Holt's performance on the field sobriety tests, which included the horizontal gaze nystagmus test, the walk-and-turn, and the one-leg stand, were consistent with someone who was under the influence of alcohol to the extent it was less safe to drive.

Following her arrest and subsequent accusation in the State Court of Cherokee County for the offenses of driving under the influence in violation of OCGA § 40–6–391(a)(1) (less safe) and OCGA § 40–6–391(a)(5) (per se), Holt moved to suppress from evidence the results of the State administered breath test, the field sobriety tests, as well as any statements she made to the troopers. The trial court, after an evidentiary hearing, granted Holt's motion in part. In its order, the trial court found that Holt was under arrest at 5:10 p.m., after the first trooper told the second trooper, "I've got two DUIs, I'll give you one of them," but that the first trooper lacked probable cause for an arrest at that time. Alternatively, the trial court found, if there was probable cause for Holt's arrest at 5:10 p.m., because the implied consent warning was given 38 minutes after Holt's arrest, the results of the tests following the warning must be suppressed. And, the trial court held, following Holt's arrest at 5:10 p.m., the questioning and investigation conducted by the second trooper amounted to a custodial interrogation without a prior recitation of Holt's Miranda³ rights, requiring the suppression of the results of the second trooper's investigation. Lastly, the trial court found that the length of Holt's detention was unreasonable. The trial court suppressed from evidence anything learned in the course of the investigation after 5:10 p.m., including the second trooper's observations and field investigation, Holt's agreement to implied consent testing, and the results of the ensuing tests. The State appeals from the trial court's order.

1. We first address Holt's motion to dismiss this appeal. She argues that the State failed to comply with OCGA § 5–7–1(a)(5),⁴ which, if applicable, required the State to file its notice of appeal within two days of the trial court's order and to certify to the trial court that the appeal was not taken for delay and that the evidence was a substantial proof of material fact in the proceeding. Holt contends that the appeal was subject to this requirement because the trial court's order excludes "other evidence" for purposes of OCGA § 5–7–1(a)(5). However, the State's appeal was from an order which excluded the results of tests for alcohol and was properly filed under OCGA § 5–7–1(a)(4), which provides:

An appeal may be taken by and on behalf of the State of Georgia ... in criminal cases ... [f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized or excluding the results of any test for alcohol or drugs in the case of motions made and ruled upon prior to the impaneling of a jury or the defendant being put in jeopardy, whichever occurs first[.]

(Emphasis supplied.). See State v. Smith, 329 Ga.App. 646 n. 5, 765 S.E.2d 787 (2014) (physical precedent only) (State appealed from order suppressing the results of two sobriety tests under OCGA § 5–7–1(a)(4) ); State v. Mosley, 321 Ga.App. 236, 238 n. 1, 739 S.E.2d 106 (2013) (appeal from grant of motion to suppress field-sobriety-test results and any subsequent testimonial evidence was authorized by OCGA § 5–7–1(a)(4) ). An appeal under OCGA § 5–7–1(a)(4) is not subject to the additional requirements set forth in OCGA § 5–7–1(a)(5)(A) and (B). Holt's motion to dismiss the appeal is denied.

2. The State contends that the trial court erred in excluding evidence gathered after 5:10 p.m. on the basis that Holt was then under arrest and no probable cause for the arrest existed at that time. We agree.

(a) There are three general classes, or "tiers," of police-citizen encounters: "(1) verbal communications involving no coercion or detention; (2) brief stops or seizures that require reasonable suspicion; and (3) arrests, which can only be supported by probable cause." (Punctuation and footnote omitted.) Bacallao v. State, 307 Ga.App. 539, 540–541, 705 S.E.2d 307 (2011). The trial court found, and the...