Sunday, April 17, 2011

DUI Appeal - When is a Georgia roadblock an illegal roving patrol?

In Owens v. State of Georgia, --- S.E.2d ----, 2011 WL 816624 (Ga.App.), the defendant argued that the roadblock was the result of an unauthorized, “on-the-fly” decision made jointly by an alleged supervisor and his field officers and that the roadblock was, essentially, an improper “roving patrol” of officers who illegally stopped and detained motorists. The court recited applicable law that:

"In general, a seizure is unreasonable absent some individualized suspicion of a crime. City of Indianapolis v. Edmond, 531 U.S. at 37(II); Thomas v. State, 277 Ga.App. at 89-90. As a result, “roving patrols in which officers exercise [ ] unfettered discretion to stop drivers in the absence of some articulable suspicion” are unconstitutional. (Citation omitted.) Thomas v. State, 277 Ga.App. at 90. A limited exception to the rule requiring individualized suspicion, however, allows standardized highway checkpoints or roadblocks that serve legitimate law enforcement objectives and that impose minimal intrusions on the motoring public. City of Indianapolis v. Edmond, 531 U.S. at 41-42(III); LaFontaine v. State, 269 Ga. 251, 253(3) (497 S.E.2d 367) (1998)."

To justify a traffic stop under this exception, the State must prove that a highway roadblock program “was implemented at the programmatic level [[FN3] for a legitimate primary purpose,” that is, that the roadblock was ordered by a supervisor, rather than by officers in the field, and was “implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime.” FN4 (Citations omitted.) Hobbs v. State, 260 Ga.App. 115, 116(1) (579 S.E.2d 50) (2003). “Elevating the roadblock decision from the officers in the field to the supervisory level limits the exercise of discretion by the officers in the field .” Thomas v. State, 277 Ga.App. at 90.

Georgia's courts have not yet precisely defined what it means for a decision to be made at the “programmatic level.” See Jacobs v. State, --- Ga.App. ----, ----, n. 6 (Case No. A11A0107, decided February 28, 2011). Here, the roadblock was approved by a Sergeant. The order for the roadblock was issued by Sergeant Michael C. Johnson post commander of Post 7 of the Georgia State Patrol, Toccoa, Georgia.... Sgt. Johnson is in fact the commanding officer for the field officers at his Post and his duties include “Initiating road-checks[.]” [FN5] ... Sgt. Johnson initiated the roadblock verbally and the decision was made by him alone.[[FN6] ... Sgt. Johnson [then] supervised the roadblock. The court also found that, when Sgt. Johnson verbally initiated the roadblock on August 15, 2008, he called into the radio operator to report the roadblock. The roadblock approval form, which was admitted into evidence without objection, stated the reasons for the roadblock on August 15, 2008, and the court found that the information on the form did not conflict with any evidence presented as to when the roadblock was to be conducted or by whom it was authorized.

In addition, the appeals court held that the State must prove that:

"all vehicles [were] stopped as opposed to random vehicle stops; the delay to motorists [was] minimal; the roadblock operation [was] well identified as a police checkpoint; and the screening officer's training and experience [was] sufficient to qualify him [or her] to make an initial determination as to which motorists should be given field tests for intoxication."

The appeals court found that the roadblock was not unlawful:

"Contrary to Owens' contentions, there is no evidence in this case that Sgt. Johnson spontaneously decided in the field to conduct the roadblock or that the roadblock had any other characteristic of a “roving patrol.” Instead, given the evidence presented, the trial court was authorized to conclude that Sgt. Johnson properly initiated, authorized, and supervised the roadblock and that his decision to implement the roadblock was made at the programmatic level for a legitimate primary purpose."

Additionally, the defendant claimed that the trial court erred in finding that his detention by the officers was not excessive under the circumstances. Georgia law applies Miranda to filed sobriety testing post-arrest:

"When a violator is placed in custody or under arrest at a traffic stop, the protection of Miranda[ arises. Thus, if an officer gives a field sobriety test to a person who is in custody or under arrest but who had not been warned of his right against self-incrimination, then the test results are inadmissible. Conversely, if the person is not in custody when he takes a field sobriety test, the results are generally admissible[,] even if the person had not been warned of his Miranda rights. The test to determine whether a detainee is in custody for Miranda purposes is whether a reasonable person in the detainee's position would have thought the detention would not be temporary. The safeguards prescribed by Miranda become applicable only after a detainee's freedom of action is curtailed to a degree associated with formal arrest. The rationale behind the holding is that although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee's exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights. The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court's determination will not be disturbed unless it is clearly erroneous."

The appeals court found that the 20 minute delay at the roadblock was not 'custodial':

"As the trial court in this case found, the arresting officer

detained [Owens] for [20] minutes after the initial portable breath test to conduct an additional test. The reason given by the arresting officer was that [Owens] admitted he had something to drink recently and there could be residual mouth alcohol. Not until after the [20] minute wait and after the second portable breath test was possible was [Owens] placed under arrest.... The [20] minute delay was for the benefit of [Owens] to insure that the portable alcohol test was not affected by residual alcohol due to [Owens'] recent consumption of alcoholic beverages."

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