WHOLE COURT
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
November 21, 2013
In the Court of Appeals of Georgia A13A1399. THE STATE v. HUGHES.
RAY, Judge.
The State appeals from the trial court’s grant of Jack Hughes’ motion to
suppress the results of a blood test, contending that the trial court erred in concluding
that the arresting officers lacked probable cause to request the blood test under the
implied consent statute. For the following reasons, we reverse.
Upon review of a trial court’s grant or denial of a motion to suppress, we apply
the clearly erroneous standard where the evidence is in dispute or the credibility of
a witness is challenged, and
[the trial court’s] findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.
(Citation and footnote omitted.) Miller v. State, 288 Ga. 286, 286 (1) (702 SE2d 888)
(2010). However, “where the evidence is uncontroverted and no question regarding
the credibility of witnesses is presented, the trial court’s application of the law to
undisputed facts is subject to de novo appellate review.” (Footnote omitted.) State v.
Underwood, 283 Ga. 498, 500 (661 SE2d 529) (2008), quoting Vansant v. State, 264
Ga. 319, 320 (1) (443 SE2d 474) (1994); (Punctuation and footnote omitted.) State
v. Preston, 293 Ga. App. 94, 96 (666 SE2d 417) (2008), quoting Vansant, supra.
Here, the evidence adduced at the hearing on the motion to suppress shows
that, on the morning of June 27, 2011, officers from the Columbus Police Department
were dispatched to a motor-vehicle accident. Hughes, then 17 years old, had driven
through a red-light and struck another driver before ultimately hitting a utility pole.
The airbag in Hughes’s vehicle had deployed during the accident, filling the cabin of
2 his pickup truck with a white powder. The driver of the other vehicle died as a result
of injuries sustained in the collision.1
After the accident, one of the first responding officers, Officer Allen, saw
Hughes standing off to the side of his vehicle and made contact with Hughes to
determine if he was okay. Hughes said that he was okay, and he told Officer Allen
that he believed he had fallen asleep while driving. Officer Allen observed that
Hughes was unsteady on his feet, that his eyes were red and glassy with dilated
pupils, and that he was slow and evasive in his responses to questioning.
Shortly thereafter, Corporal T. R. Greene arrived at the scene and took over the
investigation. While speaking with Hughes, Corporal Greene also observed that
Hughes was slow to answer questions, that he was unsteady on his feet, and that he
seemed to have trouble staying awake. Hughes stated that he had had a long day
before the accident, which started out with an early morning practice and a baseball
game that ended at 11 a.m., followed by work from 12 p.m. to 4 p.m. Hughes further
stated that he took a short nap after work and then went to a party with friends from
about 9 p.m. to 3 a.m., then slept in his vehicle from about 3 a.m. to 5 a.m. Hughes
1 The fact that Hughes was driving and caused a wreck leading to a fatality was not in dispute on the motion to suppress.
3 admitted that there was alcohol present at the party, but he denied consuming any.
When questioned about what had happened in the accident, Hughes stated that he had
hit a telephone pole; he was unaware that he had struck another vehicle.
At this point, Corporal Greene did not believe that Hughes was under the
influence, and Hughes was not asked to perform any field sobriety tests. Corporal
Greene arrested Hughes for a red-light violation and homicide by vehicle. However,
after providing Miranda2 warnings to Hughes, Corporal Greene and another officer
performed a search of his person incident to arrest. During this search, the officers
found socks in Hughes’s pockets that contained several pills.3 There was no evidence
that Hughes was asked to identify the pills or asked whether he had recently ingested
any of them. Corporal Greene suspected that some of the pills were Ecstacy and,
when taking into consideration his earlier observations of Hughes’s demeanor and
appearance, he believed that Hughes may be under the influence of drugs. Corporal
Greene then read the implied consent warning to Hughes, and Hughes submitted to
a State-administered blood test.
2 Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). 3 Hughes did not challenge the authority of the search incident to arrest.
4 Hughes filed a motion to suppress the results of the blood test, arguing that the
officers lacked probable cause to believe that he was driving under the influence of
drugs. At the hearing on the motion to suppress, the only witnesses who testified were
the officers who responded to the scene of the accident and interacted with Hughes.
Following the presentation of evidence, the trial court granted Hughes’s motion to
suppress, finding that the officers did not have probable cause to invoke the implied
consent statute.
On appeal, the State contends that the trial court erred in granting the motion.
We agree.
In determining whether the evidence is sufficient to invoke the implied consent
statute, the relevant inquiry is whether an officer had “reasonable grounds” to believe
that a defendant had been driving a motor vehicle in violation of OCGA § 40-6-391.
See OCGA § 40-5-55 (a). “[W]here the facts relevant to a suppression motion are
undisputed, the proper standard of review on appeal is de novo, not clearly
erroneous.” (Footnote omitted.) Underwood, supra.
In State v. Gray, 267 Ga. App. 753 (600 SE2d 626) (2004), the case relied upon
by the trial court in granting Hughes’s motion to suppress, we applied the clearly
erroneous standard to affirm the trial court’s grant of a motion to suppress the results
5 of the defendant’s breath test where the trial court found that the arresting officer
lacked credibility and that the defendant’s outward manifestations were the result of
the automobile accident, rather than impairment caused by intoxication. Id. at 754-
755 (1). In that case, the trial court found that the defendant had adequately
demonstrated that another driver had caused the accident, and that the mere presence
of alcohol in the defendant’s body did not warrant a finding of probable cause to
arrest the defendant for driving under the influence because there was no evidence to
indicate that the defendant was under the influence of alcohol to a degree which
rendered her incapable of driving safely. Id. at 756 (2). The facts in Gray are
distinguishable from those presented in this case.
Here, the fact that Hughes had drugs in his possession was not the only credible
evidence that he may have been driving while impaired. The undisputed evidence also
showed that Hughes was incapable of driving his vehicle safely and that he exhibited
manifestations consistent with being impaired. The fact that drugs were found in his
possession put into context his disjointed demeanor, and the combination of these
facts provided the officers with a reasonable basis for believing that Hughes was
driving under the influence. Although the officers did not perform any field sobriety
6 testing, based upon the totality of the circumstances the officers reasonably believed
that drugs may have been involved, and they asked Hughes to submit to a blood test.
Although the trial judge, as the trier of fact on the motion to suppress, was not
obligated to believe the officers’ uncontradicted testimony regarding their
observations of Hughes’s demeanor and appearance,4 the trial court’s order neither
made any specific findings about the officers’ credibility nor rejected the officers’
testimony as to any of the above facts. Rather, the trial court found that Hughes’s
manifestations “were consistent with the after-effects of an automobile collision
where an airbag deployed[.]” Hughes contends that the trial court’s findings should
be reviewed under the clearly erroneous standard, which would mean that the ruling
of the trial court must be upheld if there is any evidence to support it. See Gray,
supra. We disagree. The trial court found that the facts were entirely consistent with
everything to which the officers testified, except for their subjective belief that
probable cause existed to request a blood test. This latter point represents not a fact
of the event, but rather a legal conclusion reached by the trial court upon its
4 See Brown v. State, ___ Ga. ___ (Case No. S12G1287, decided October 21, 2013) (“The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony.”) (citation and punctuation omitted).
7 consideration of the undisputed facts. As the facts relevant to the motion to suppress
are undisputed, the proper standard of review is de novo. See Underwood, supra;
Vansant, supra; and Preston, supra.
The proper inquiry is whether the investigating officers, in light of all the facts
and circumstances confronting them on the scene at that time, had a reasonable and
objective basis for suspecting that Hughes was under the influence of a drug that
contributed to the collision. See Preston, supra at 97, n. 13. The fact that there may
be other explanations for Hughes’s unusual behavior and manifestations does not
establish that the officers’ beliefs were unreasonable or that they lacked credibility.
It is well settled that
[t]he facts necessary to establish probable cause for arrest are much less than those required to prove guilt beyond a reasonable doubt at trial; the test merely requires a probability — less than a certainty but more than a mere suspicion or possibility. Further, probable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction.
(Punctuation and footnotes omitted.) Armour v. State, 315 Ga. App. 745, 746 (1) (728
SE2d 270) (2012). The trial court’s “finding” that Hughes’s physical manifestations
were consistent with the after-effects of the accident is not a fact that is central to
8 whether the police officers had probable cause to ask for a drug test, but rather
represents the trial court’s conclusion as to whether it could be proven that Hughes
was in fact impaired. Ultimately, that decision is what the jury should be empaneled
to decide in this case. The trial court’s inquiry should be limited simply to whether
the police officers had reasonable grounds to believe that drugs were likely involved.
Here, the undisputed evidence shows that the officers had a reasonable and
objective basis for believing that Hughes had been driving in violation of OCGA §
40-6-391. Hughes ran a red light and struck another vehicle, killing the other driver.
He exhibited several signs of impairment, was wholly unaware of the collision that
he had caused, had slept in his vehicle for a while after leaving a party where alcohol
had been served, and, most importantly, had drugs in his possession. See Martin v.
State, 214 Ga. App. 614, 615-616 (1) (448 SE2d 471) (1994) (circumstances giving
officer probable cause to arrest for driving under the influence of drugs or alcohol
included defendant’s dilated eyes and inability to explain how the accident occurred);
Slayton v. State, 281 Ga. App. 650, 652 (1) (637 SE2d 67) (2006) (observations about
suspect’s physical appearance, demeanor, behavior, and manner of driving can
support a finding of impairment). Furthermore, the officers’ failure to conduct field
sobriety testing in this case does not demand a finding that the officers lacked
9 probable cause to request a blood test. “What matters is what the [officers] observed
and reasonably believed.” Brown v. State, 302 Ga. App. 272, 274 (1) (690 SE2d 907)
(2010) (evidence was sufficient to establish probable cause to arrest for driving under
the influence, even in the absence of field sobriety testing, where defendant otherwise
exhibited signs of intoxication and marijuana was found in defendant’s possession).
Under the totality of the circumstances, when viewed objectively from the
standpoint of the officers at the time, we find that the facts were sufficient to give the
officers probable cause upon which to request a blood test under the implied consent
statute, regardless of whether a jury might later disagree with their suspicions as to
why the collision occurred. See, e.g., id. at 273-274 (1); Preston, supra at 95-97.
Accordingly, the trial court’s ruling must be reversed.
Judgment reversed. Andrews, P. J., Dillard, Ray, and McMillian, JJ., concur.
Barnes, P. J., Doyle, P. J., and Miller, J., dissent.
10 A13A1399. THE STATE v. HUGHES.
MILLER, Judge, dissenting.
I respectfully dissent because the majority has failed to apply the proper
standard of review. In this case, after hearing all of the evidence and assessing the
credibility of the police officers who testified at the suppression hearing, the court
ruled that the officers lacked probable cause to believe Hughes was driving under the
influence of drugs. In reversing the trial court’s conclusion, the majority ignores well-
established rules of appellate review and improperly substitutes its judgment for that
of the trial court.
The Georgia Supreme Court has recently reiterated the three fundamental
principles that must be followed when reviewing a trial court’s ruling on a motion to
suppress. See Brown v. State, __ Ga. ___, *13-14 (3) (b) (2) (Case No. S12G1287,
decided Oct. 21, 2013).
First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.
(Citation and punctuation omitted; emphasis supplied.) Id. at * 12-13 (3) (b) (2). In
Brown, the Supreme Court overturned this Court’s decision in State v. Brown, 315
Ga. App. 154 (726 SE2d 654) (2012), concluding that this Court deviated from these
fundamental principles by going beyond the trial court’s findings of fact, conducting
a de novo review, and failing to realize that the trial court, as the trier of fact, “is not
obligated to believe a witness even if the testimony is uncontradicted and may accept
or reject any portion of the testimony. Thus, a rational trier of fact can choose to reject
even ‘undisputed’ testimony.” (Citation and punctuation omitted.) Id. at *14 (3) (b)
(2). Even though the Supreme Court reiterated the fundamental principles of
appellate review on a motion to suppress, they are disregarded by the majority.
Clearly, judges on this Court may have decided the case differently had they
been sitting as the trier of fact at the suppression hearing. Appellate review, however,
requires a different approach. As discussed in more detail below, this case presents
issues of credibility and conflicting evidence as to the cause of the alleged indicia of
impairment. As a result, a clearly erroneous standard applies. See Miller v. State, 288
Ga. 286, 290 (2) (702 SE2d 888) (2010); State v. Gray, 267 Ga. App. 753, 753-754
2 (600 SE2d 626) (2004). The majority here concludes that a de novo standard applies,
but in doing so, the majority fails to limit its review to the facts as found by the trial
court in its order. To properly review a trial court’s order on a motion to suppress,
“we must focus on the facts found by the trial court in its order, as the trial court sits
as the trier of fact.” (Emphasis in original) Miller, supra, 288 Ga. at 287 (1). The trial
court’s verbatim factual findings are as follows:
None of the officers who testified at the [suppression] hearing performed any field sobriety tests to determine if Defendant was impaired by drugs or alcohol, and it appears as if no other officer did so.
There was no indication that either vehicle contained evidence of the recent ingestion of any intoxicants. The officers testified that during their investigation, Defendant told them he must have fallen asleep before the accident. The officers stated that Defendant did appear to be “trying to fall asleep;” had glassy eyes with some redness; and may have been unsteady on his feet.
After arresting Defendant for homicide by vehicle in the second degree and running a red light, two of the officers searched his clothing and found some tightly packaged pills, which they could not immediately identify. At that point one of the officers read the implied consent warning to Defendant. This same officer testified that he did not have any reason to read the implied consent warning prior to discovering the pills.
...
This Court has carefully reviewed the testimony of each of the three police officers who testified at the motion [to suppress] hearing,
3 and recognizing this case is very fact specific, finds, based on the totality of the circumstances, the police did not have probable cause to invoke the implied consent statute following the arrest and search of Defendant on June 27, 2011. This Court is cognizant of the fact that the officers testified that Defendant Hughes had glassy eyes with some redness and may have been unsteady on his feet. However, the decision not to conduct any field sobriety tests or otherwise investigate a possible DUI charge prior to the discovery of the pills supports a finding that the officers did not suspect that Defendant was driving under the influence of any intoxicant beforehand. Additionally, there was no evidence of any drugs or alcohol in Defendant’s system when the officers read the implied consent warning. Merely finding these drugs, without any evidence of recent consumption, may furnish an officer with a hunch or suspicion, but not probable cause that withstands constitutional scrutiny. If the mere presence of alcohol inside a person’s body does not furnish probable cause for a DUI arrest as held by the appellate courts of this State, the mere presence of drugs in Defendant’s pockets must also fall short. Accordingly, this Court finds that Defendant’s manifestations were consistent with the after-effects of an automobile collision where an airbag deployed and concludes that these manifestations did not provide the officers with probable cause to invoke the implied consent statute.
(Emphasis supplied.)
Reading the entire order, as we must, and in consideration of the trial court’s
statements at the suppression hearing, it cannot seriously be contended that the trial
court, as the trier of fact, accepted all of the officers’ testimony. Specifically,
although the trial court noted that the officers collectively testified that Hughes
appeared to be “trying to fall asleep,” had glassy eyes with some redness, and seemed
4 unsteady on his feet, the trial court called this testimony into question when it
expressly noted that despite these apparent indicators, none of the officers elected to
perform a field sobriety test. The trial court expressed doubt about the existence of
probable cause when it noted that Corporal Green “testified that he did not have any
reason to read the implied consent warning prior to discovering the pills.”
Additionally, at the suppression hearing, the trial court questioned Corporal Green’s
credibility when it made special note of his testimony that he believed that Hughes
was under the influence of mind-altering stimulants. Corporal Green’s opinion was
inconsistent with his testimony that Hughes was sleepy and slow to respond because
stimulants would cause agitation. See Tate, supra, 264 Ga. at 56 (3), n.5
(contradictory or inconsistent statements can lead a finder of fact to disregard an
officer’s testimony); State v. Starks, 281 Ga. App. 15, 16-17 (635 SE2d 327) (2006).
Despite the trial court’s order showing that it questioned the officers’
testimony, the majority incorrectly concludes that there were no disputed issues of
fact or issues of credibility because the trial court did not make an explicit credibility
determination. Such explicit findings are not required, however. See, e.g., Miller,
supra, 288 Ga. at 290 (2) (given the trial court’s ultimate ruling to grant a motion to
suppress, it was logical that the trial court discredited and rejected the officers’
5 testimony); Tate, supra, 264 Ga. at 57 (3) (“We conclude that from reading the entire
order that the trial court chose not to believe the deputy’s testimony. . .”); Barnett v.
State, 204 Ga. App. 491, 492 (1) (420 SE2d 43) (1992) (“The trial court perforce of
its ruling on the suppression motion found [the officer’s] testimony credible . .
.”). Rather than defer to the trial court’s resolution of the credibility issues raised in
this case, the majority imposes a credibility determination not made by the trial court
– that the officers were credible and, therefore, their testimony must be accepted as
fact.
Applying the proper standard of review, and viewing the evidence in the light
most favorable to the trial court’s ruling, the evidence supports the trial court’s
conclusion that the police officers lacked probable cause to believe that Hughes was
driving under the influence. Notably, evidence shows that Hughes was sleep-
deprived, and he specifically told officers that he had fallen asleep at the wheel before
striking the other driver. Corporal Green testified that Hughes appeared to be falling
asleep after the accident. Additionally, Corporal Green testified that the substantial
force with which airbags deploy and hit a driver may have caused Hughes to become
unsteady on his feet. Officer Allen and Corporal Green both testified that the white
powder released upon airbag deployment could have affected or irritated Hughes’s
6 eyes. Moreover, despite the alleged indicia of impairment and despite having received
training in how to detect whether a person was under the influence of drugs, none of
the officers conducted a field sobriety test or otherwise investigated a possible DUI
charge prior to the discovery of the pills on Hughes. Corporal Green specifically
stated that he had no reason to read the implied consent notice until he found the
pills, which demonstrated a lack of suspicion that Hughes was under the influence of
drugs or alcohol. There was no evidence that Hughes had recently ingested the pills,
and, in any case, the presence of the drugs, alone, does not establish probable cause.
See Armour v. State, 315 Ga. App. 745, 747 (1) (728 SE2d 270) (2012) (the presence
of drugs in a driver’s body does not, by itself, establish probable cause).
Although the State and the majority cite to evidence that Hughes exhibited
several indicators of impairment, these factors do not demand a finding of
impairment. See Damato, supra, 302 Ga. App. at 183 (1); cf. State v. Goode, 298 Ga.
App. 749, 752 (681 SE2d 199) (2009) (defendant’s strong odor of alcohol, glassy and
watery eyes, admission to drinking, and positive alco-sensor tests did not require a
finding of impairment). Additionally, although Corporal Green opined that Hughes
was under the influence of drugs because he exhibited symptoms that were consistent
with people under the influence, the trial court, as the trier of fact, “may accept part
7 of a witness’ testimony and reject another part, and in the absence of evidence of
record demanding a finding contrary to the judge’s determination, the appellate court
will not reverse the ruling sustaining a motion to suppress.” (Citation and punctuation
omitted; emphasis supplied.) Anderson v. State, 267 Ga. 116, 118-119 (2) (475 SE2d
629) (1996); see also State v. Damato, 302 Ga. App. 181, 183 (1) (690 SE2d 478)
(2010) (the trier of fact is not bound by an officer’s opinion, even if it is
uncontradicted).
The trial court could have drawn an inference that Hughes was under the
influence of drugs or alcohol. Presented with the officers’ testimony and evaluating
their credibility, however, the trial court declined to make this inference.
The principles of appellate review applicable to these motions were set forth to ensure that, in difficult cases such as this one, the trial court’s resolution of these issues would be given deference, as only the trial court actually sees the witnesses and hears their testimony.
Miller, supra, 288 Ga. at 290 (2). In applying the fundamental principles of appellate
review, the evidence does not demand a finding contrary to the trial court’s
determinations that the alleged indicia of impairment were consistent with the after-
effects of a serious accident, as opposed to being consistent with signs of a person
under the influence of drugs. See, e.g., Gray, supra, 267 Ga. App. at 756 (2) (although
8 the evidence was conflicting as to the cause of the alleged indicia of impairment, this
Court affirmed the trial court’s grant of a motion to suppress because the trial court
found the alleged indicia of impairment were either caused by the accident or lacked
credibility, and there was another explanation for the cause of the accident).
Viewing the evidence in the light most favorable to the trial court’s ruling, there is
evidence to support the court’s conclusion that the police officers lacked probable
cause. Accordingly, I would affirm the grant of Hughes’s motion to suppress.
I am authorized to state that Barnes, P. J., and Doyle, P. J., join in this dissent.
9 A13A1399. THE STATE v. HUGHES.
BARNES, Presiding Judge, dissenting.
While I fully join Judge Miller’s dissent, I write separately to further emphasize
the deferential standard of review that we must apply in this case. In the context of
a trial court’s grant or denial of a motion to suppress, if “the underlying facts support
conflicting inferences as to whether the defendant was an impaired driver, we apply
a clearly erroneous standard of review and defer to the trial court’s finding on the
issue.” (Citation and punctuation omitted.) State v. Encinas, 302 Ga. App. 334, 336
(691 SE2d 257) (2010). See Slayton v. State, 281 Ga. App. 650, 653 (1) (637 SE2d
67) (2006) (standard of review may require this Court to affirm the trial court’s grant
or denial of a motion to suppress “under the same facts depending on the credibility
determinations and inferences drawn by the trial court”) (citation omitted). This
follows from the longstanding principle that “as an appellate court for the correction
of legal errors, we must draw all reasonably permissible inferences from the evidence
to support the trial court’s ruling.” (Citation and punctuation omitted.) Slayton, 281
Ga. App. at 653 (1).
Here, the underlying facts clearly would have supported an inference by the
trial court that Hughes was impaired by illegal drugs when he caused the automobile accident, and thus would have supported the denial of the motion to suppress.
Indeed, members of this Court might very well have drawn such an inference if we
had been sitting as the trier of fact at the suppression hearing. Nevertheless, the
underlying facts also support a competing inference that Hughes was not impaired by
illegal drugs when he caused the automobile accident, as the trial court found in this
case. Under these circumstances, where conflicting inferences as to whether Hughes
was impaired by drugs could be drawn from the record, we should defer to the trial
court’s finding on the issue and affirm the grant of the motion to suppress.
I am authorized to state that Doyle, P.J., joins in this dissent.