319 Ga. 787 FINAL COPY
S24A0913. GONZALEZ v. THE STATE.
BETHEL, Justice.
Jesus Olvera Gonzalez was convicted of malice murder in
connection with the stabbing death of Jesus Arizaga.1 On appeal,
Gonzalez contends that the trial court erred by denying his motion
to suppress a statement that he made to police before he was given
the warnings required by Miranda2 and that the trial court erred by
failing to suppress certain DNA evidence and photographs. For the
reasons that follow, we affirm.
1. On September 8, 2019, at 5:10 a.m., Forsyth County 911
1 The crimes occurred on September 8, 2019. On February 10, 2020, a
Forsyth County grand jury indicted Gonzalez for malice murder (Count 1), felony murder predicated on aggravated assault (Count 2), and aggravated assault (Count 3). At a May 2022 trial, a jury found Gonzalez guilty of all counts. The trial court sentenced Gonzalez to serve life in prison on Count 1, and the remaining counts merged or were vacated by operation of law. Gonzalez filed a timely motion for new trial, which was later amended through new counsel. Gonzalez waived an evidentiary hearing on the motion, and the trial court denied the amended motion on March 15, 2024. Gonzalez then filed a timely notice of appeal, and his case was docketed to the August 2024 term of this Court and submitted for a decision on the briefs. 2 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). received a call reporting a stabbing at a residence.3 The caller, B.
O.,4 requested an ambulance, saying that his cousin’s friend, who
was later identified as Arizaga, had been stabbed and was bleeding.
B. O. further reported that his cousin, later identified as Gonzalez,
and Arizaga had been drinking and began arguing, that Gonzalez
had stabbed Arizaga, and that Gonzalez was crying outside the
residence with B. O.’s parents.
Several officers arrived at the home approximately six minutes
later. As the officers approached the residence, B. O. notified them
that Arizaga was inside and that Gonzalez was still outside talking
to B. O.’s parents. Sergeant White, one of the responding officers,
located Gonzalez standing with two other individuals outside the
residence. Gonzalez had blood on his hands and shirt. Sergeant
White immediately handcuffed Gonzalez and asked him, “Where’s
the knife?” Gonzalez pointed toward the house and then verbally
confirmed that the knife was inside the house.
3 The recording of the 911 call was admitted into evidence at trial and
played for the jury. 4 B. O. was a minor at the time of the crimes and subsequent trial.
2 Meanwhile, other responding officers had proceeded inside the
residence to locate the victim and clear the scene. The officers
discovered Arizaga lying on the floor of a bedroom with several stab
wounds. Officers performed CPR, but Arizaga died from his injuries.
The knife was found on the floor near Arizaga.
Gonzalez was arrested and transported to the police station.
Later that day at the police station, a crime-scene specialist took
pictures of Gonzalez’s blood-stained clothing and body and collected
swabs from his hands, which had dried blood on them. The pictures
were admitted into evidence at trial. The swabs were tested, and the
blood collected from Gonzalez’s hands was determined to be
Arizaga’s.
Juan Olvera, another of Gonzalez’s cousins, testified at trial
that he shared a room with Gonzalez and was awakened that
morning by Gonzalez and Arizaga when the two came into the
bedroom. Gonzalez and Arizaga began fighting, and Olvera testified
that he saw Gonzalez strike Arizaga repeatedly (though he did not
see anything in Gonzalez’s hand and testified that he “couldn’t see
3 the details”), saw Arizaga bleeding, and then observed Gonzalez
abruptly leave the room to go outside. Olvera attempted to staunch
Arizaga’s bleeding and then woke up his parents and sent them
outside with Gonzalez.
B. O., meanwhile, testified that he observed Gonzalez and
Arizaga enter the house from the garage, arguing. B. O. testified
that the two went into Olvera’s room and that Gonzalez walked out
of the bedroom and left the house a few minutes later. When
Gonzalez came back inside, B. O. observed a knife in Gonzalez’s
pocket, saw him go back into Olvera’s room, and, a few seconds later,
heard groaning coming from the room. B. O. notified his parents,
called 911, observed Gonzalez leave the house, and saw his parents
follow Gonzalez.
2. In his first enumeration of error, Gonzalez argues that the
trial court erred by denying his motion to suppress his statement
made to Sergeant White after he was handcuffed at the scene.
Specifically, Gonzalez argues that his statement indicating where
the murder weapon was located was inadmissible because he made
4 the statement before receiving the warnings required by Miranda
and that the trial court erroneously relied on the public-safety
exception to Miranda in finding his statement admissible.
Gonzalez’s argument fails.
“A trial court’s ruling on a motion to suppress is reviewed for
abuse of discretion.” Glenn v. State, 308 Ga. 310, 311 (2) (840 SE2d
368) (2020).
As we recently explained,
[i]n Miranda, the United States Supreme Court interpreted the Fifth Amendment to the United States Constitution and set forth the now well-established rule that a defendant who is in custody and subject to interrogation “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”
State v. Lopez-Cardona, 319 Ga. 222, 226 (2) (a) (903 SE2d 18) (2024)
(quoting Miranda, 384 U. S. at 479 (III)). Though statements
obtained in violation of Miranda are generally inadmissible, in New
York v. Quarles, 467 U. S. 649 (104 SCt 2626, 81 LE2d 550) (1984),
5 the United States Supreme Court has recognized a “narrow
exception” to Miranda that applies in “situations where there is a
threat to public safety.” United States v. Newsome, 475 F3d 1221,
1224 (II) (A) (11th Cir. 2007). Pursuant to this exception, an officer
may “ask questions reasonably prompted by a concern for public
safety” before giving the warnings required by Miranda. Quarles,
467 U. S. at 656. See also Newsome, 475 F3d at 1224 (II) (A) (“The
public safety exception allows officers to question a suspect without
first Mirandizing him when necessary to protect either themselves
or the general public.”); Bowling v. State, 289 Ga. 881, 888 (4) (a)
(717 SE2d 190) (2011) (applying public-safety exception).
We conclude that the trial court did not err in finding that the
public safety exception applied to Gonzalez’s statement, and
therefore did not abuse its discretion in denying Gonzalez’s motion
to suppress.5 Officers were dispatched to the crime scene following a
5 The parties do not dispute that Gonzalez was in custody at the time
Sergeant White questioned him about the location of the knife. See Jenkins v. State, 317 Ga. 585, 594 (2) (b) (894 SE2d 566) (2023) (“Miranda warnings must be administered to an accused who is in custody and subject to interrogation or its functional equivalent.” (citation and punctuation omitted)). 6 911 call regarding a stabbing in progress, so responding officers
were alerted to the possibility that they might encounter an armed
and violent assailant, whose identity was not yet known to them.
After arriving at the crime scene only six minutes after the 911 call
was placed, Sergeant White found Gonzalez waiting outside with
blood visible on his hands and shirt. Given these circumstances,
Sergeant White had a reasonable basis to believe that Gonzalez may
have been armed and dangerous. After handcuffing Gonzalez, he
asked what was necessary to secure the scene and prevent injury to
the responding officers and others present at the scene, specifically,
“Where’s the knife?” See Bowling, 289 Ga. at 888 (4) (a) (despite lack
of Miranda warnings, officer’s question regarding location of gun fell
within the public safety exception as officer was “confronted with an
immediate need to locate a gun that the suspect recently possessed”
and had likely discarded nearby, which “posed more than one danger
to the public safety” (citation and punctuation omitted)). And
Sergeant White asked only the single question necessary to locate
the knife, which was proper to protect himself, his fellow officers,
7 and the other individuals at the scene. See Newsome, 475 F3d at
1225 (II) (A).
Although Gonzalez contends that the crime scene and the knife
had already been secured by the time Sergeant White handcuffed
and questioned him, Gonzalez points to no evidence in the record
showing that Sergeant White could have known that. Indeed, the
officers’ testimony and the footage from Sergeant White’s body
camera support the trial court’s finding of a rapid sequence of
events, with Sergeant White focused on locating the unknown
assailant while other officers cleared the interior of the residence.
Because Sergeant White was entitled to take the safety measure of
ascertaining the location of the knife prior to giving Gonzalez the
Miranda warnings, the trial court did not err in finding that the
therefore did not abuse its discretion by denying Gonzalez’s motion
to suppress. See Martin v. State, 277 Ga. 227, 228 (2) (587 SE2d 650)
(2003) (“[T]he officer was entitled to determine the location of the
knife prior to reading [the defendant] his Miranda rights[.]”); Smith
8 v. State, 264 Ga. 857, 859 (3) (452 SE2d 494) (1995) (holding that an
officer’s question regarding location of a gun was not an
interrogation requiring Miranda warnings but an attempt to
determine whether defendant was armed). Gonzalez’s first
enumeration of error therefore fails.
3. In his second enumeration of error, Gonzalez challenges the
admission of certain evidence at trial, specifically, pictures of
Gonzalez’s clothing and body taken at the police station after his
arrest, as well as the results of DNA testing showing that the blood
on Gonzalez’s hands was Arizaga’s. In Gonzalez’s estimation, the
photographs and blood evidence should have been suppressed
because they were taken from him in violation of the Fourth
Amendment to the United States Constitution prohibition against
unreasonable searches and because the collection of this evidence
violated his right against self-incrimination under Paragraph XVI
of our State Constitution.6 For the reasons explained below, each of
6 See Ga. Const. of 1983, Art. I, Sec. I, Par. XVI (“No person shall be
compelled to give testimony tending in any manner to be self-incriminating.”). 9 Gonzalez’s claims fails.
(a) Turning first to Gonzalez’s Fourth Amendment challenge,
Gonzalez argues that police, by swabbing his hands for DNA
evidence and taking photographs of his body and clothing, conducted
a search within the meaning of the Fourth Amendment for which a
warrant was required. And because no warrant was obtained,
Gonzales argues, the search was unreasonable, and the evidence
collected as a result of that search was due to be suppressed.
As an initial matter, Gonzalez does not address whether this
claim was preserved for ordinary appellate review. But our review
of the record reflects that, despite raising the issue in a pre-trial
motion to suppress, Gonzalez failed to obtain a ruling from the trial
court with respect to the admissibility of this evidence on Fourth
Amendment grounds.7 Nor did Gonzalez object on Fourth
7 Though Gonzalez’s appellate brief notes that the issue raised in this
enumeration of error was raised in a pretrial motion to suppress, he fails to identify where in the record the trial court ruled on the issue. And we have not located anything in the record reflecting that such ruling was made. As we have explained before, it is not enough merely to raise an evidentiary issue in the trial court — a ruling must be obtained from the trial court to preserve the
10 Amendment grounds when the evidence was admitted during trial.8
Accordingly, we review only for plain error. See Williams v. State,
315 Ga. 490, 494 (2) n.7 (883 SE2d 733) (2023). To establish plain
error,
[f]irst, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.
Id. at 495 (2) (citation, punctuation and emphasis omitted).
“Satisfying all four prongs of this standard is difficult, as it should
issue for ordinary appellate review. See Goins v. State, 310 Ga. 199, 204 (4) (850 SE2d 68) (2020) (Though appellant filed a pretrial motion to suppress certain evidence and the trial court held a hearing on the motion, the trial court “did not issue a ruling at the hearing or in an order, and [a]ppellant’s trial counsel did not request a ruling or object when the . . . evidence was admitted during the trial. We therefore review [a]ppellant’s claim only for plain error.”). 8 Instead, Gonzalez’s objection relied exclusively on decisions concerning
the right against compelled self-incrimination under the Georgia Constitution, and the trial court’s ruling was limited to that issue. 11 be.” Hood v. State, 303 Ga. 420, 426 (2) (a) (811 SE2d 392) (2018)
(citation and punctuation omitted).
The Fourth Amendment to the United States Constitution
guarantees “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures.” U. S. Const. Amend. IV. “Ordinarily, a search is deemed
to be reasonable when conducted pursuant to a judicial warrant,
which the Fourth Amendment requires to be supported by probable
cause.” Caffee v. State, 303 Ga. 557, 560 (2) (814 SE2d 386) (2018).
On the other hand, “[s]earches conducted without a warrant are
unreasonable under the Fourth Amendment unless they fall within
a well-established exception to the warrant requirement[,]”
including “searches conducted pursuant to consent, the existence of
exigent circumstances, and searches incident to a lawful arrest.” Id.
In support of this claim of error, Gonzalez argues only that
there were no exigent circumstances that justified the actions of
police officers in swabbing his hands for DNA evidence and taking
photographs of his body and clothing without first obtaining a
12 warrant. But, even assuming that the photographs and swabs
constituted a search,9 Gonzalez’s argument ignores that, as we just
explained above, the existence of exigent circumstances is not the
only exception to the Fourth Amendment’s warrant requirement.
Among other exceptions to the warrant requirement is a search
incident to a lawful arrest, which “‘derives from interests in officer
safety and evidence preservation that are typically implicated in
arrest situations.’” Kennebrew v. State, 299 Ga. 864, 869 (2) (a) (1)
(792 SE2d 695) (2016) (quoting Arizona v. Gant, 556 U. S. 332, 338
(II) (129 SCt 1710, 173 LE2d 485) (2009)).
Here, the record reflects that, after his arrest at the scene in
9 Gonzalez cites no case law in support of his conclusory assertion that
the mere taking of photographs constitutes a search within the meaning of the Fourth Amendment. Compare Mitchell v. State, 301 Ga. 563, 569-570 (3) (802 SE2d 217) (2017) (“Generally, in a ‘search’ of an individual, some tangible evidence is taken from that person: whether a physical object in the person’s possession, or a sample of some part of their body, such as hair, blood, or urine. An action by the State which does not obtain any tangible item, but merely obtains information as to ‘personal characteristics,’ lies in a middle ground. The United States Supreme Court has concluded that . . . ‘searches’ include such actions as taking blood, breath, or urine samples, removing scrapings from underneath an individual’s fingernails, or obtaining DNA evidence via a cheek swab.” (citations and footnote omitted)), disapproved on other grounds by State v. Turnquest, 305 Ga. 758, 775 (4) n.15 (827 SE2d 865) (2019). 13 the early morning hours, Gonzalez was transported to the police
station and placed in an interrogation room where he remained
handcuffed. Shortly before noon that same day, a crime scene
investigator took photographs of Gonzalez and swabbed his hands
while Gonzalez remained in the interrogation room at the police
station. And the swabbings and photographs clearly were taken for
the purpose of preserving evidence of the offense — that is, blood on
Gonzalez’s hands and clothing — that was within Gonzalez’s
immediate control and could be easily destroyed. See Gant, 556 U. S.
at 339 (II) (“[A] search incident to arrest may only include the
arrestee’s person and the area within his immediate control —
[meaning] the area from within which he might gain possession of a
weapon or destructible evidence. That limitation, which continues
to define the boundaries of the exception, ensures that the scope of
a search incident to arrest is commensurate with its purposes of
protecting arresting officers and safeguarding any evidence of the
offense of arrest that an arrestee might conceal or destroy.” (citation
and punctuation omitted)). Gonzalez does not argue that probable
14 cause to arrest him was lacking. See Caffee, 303 Ga. at 560 (2) (the
search-incident-to-arrest exception “applies only if there is probable
cause to arrest”). Nor does Gonzalez make any effort to demonstrate
that the swabbing and photographing was unauthorized under the
search-incident-to-arrest exception. See Cupp v. Murphy, 412 U. S.
291, 296 (93 SCt 2000, 36 LE2d 900) (1973) (given the existence of
probable cause and “the ready destructibility of the evidence,” no
Fourth Amendment violation where police took scraping of
fingernails); Thomason v. State, 268 Ga. 298, 303 (2) (d) (486 SE2d
861) (1997) (trial court did not err in denying motion to suppress
swabs of blood that “were permissibly taken from [the defendant]’s
skin surface after he was taken into custody, as they also preserved
evidence”). See also 1 Wayne R. LaFave, Search and Seizure: A
Treatise on the Fourth Amendment § 2.6 (a) (6th ed. 2024) (“if a
person has been lawfully arrested it really is not significant whether
certain types of in-custody investigation (e.g., fingerprinting)
constitute a Fourth Amendment search; the investigation is lawful
in any event because a valid arrest was made”). Given these
15 circumstances, we conclude that Gonzalez has failed to meet his
burden of showing that the trial court committed any error, much
less a clear legal error required under plain error review, by failing
to suppress the evidence on Fourth Amendment grounds. See
Ruthenberg v. State, 317 Ga. 227, 232 (3) (892 SE2d 728) (2023)
(appellant carries burden of showing plain error).
(b) Relying on Olevik v. State, 302 Ga. 228, 243 (806 SE2d 505)
(2017), Gonzalez further argues that he was compelled to act and
produce evidence against himself in violation of his state
constitutional right against self-incrimination when police told him
to produce his hands palms up and palms down to provide access to
the specific DNA-covered areas the police needed to obtain evidence
from and when they told him to remove his shirt and pose at various
angles for photographs.10 But as the trial court correctly determined
Olevik does not support Gonzalez’s argument. Rather, in Olevik, we
10 Gonzalez objected to this effect at trial, and thus this error was preserved for ordinary appellate review. See Adams v. State, 306 Ga. 1, 3 (1) (829 SE2d 126) (2019) (“In order to preserve an objection for ordinary appellate review, the specific ground of the objection must be made at the time the challenged evidence is offered.” (cleaned up)). 16 explicitly stated that “the right against compelled self-incrimination
is not violated where a defendant is compelled only to be present so
that certain incriminating evidence may be procured from him” and
that “the right is not violated when evidence is taken from a
defendant’s body or photographs of the defendant are taken.” Id. at
242 (2) (c) (iii). Gonzalez’s claim therefore fails. See id.
Judgment affirmed. All the Justices concur.
Decided September 17, 2024.
Murder. Forsyth Superior Court. Before Judge Smith.
Clark & Towne, David E. Clark, for appellant.
Penny A. Penn, District Attorney, Jennifer L. Scalia, Assistant
District Attorney; Christopher M. Carr, Attorney General, Beth A.
Burton, Deputy Attorney General, Clint C. Malcolm, Meghan H. Hill,
Senior Assistant Attorneys General, Craig J. Pake, Assistant
Attorney General, for appellee.