State v. Arroyo ( 2023 )

NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
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prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: February 7, 2023
S22G0593. THE STATE v. ARROYO.
COLVIN, Justice.
Jerry Arroyo, who was charged with trafficking in cocaine, filed
a pretrial motion to suppress evidence obtained pursuant to a search
warrant for his apartment. Arroyo argued that the warrant was not
supported by probable cause because it relied upon evidence illegally
obtained in violation of the Fourth Amendment to the United States
Constitution, namely, a drug-sniffing dog’s positive alert for illegal
drugs within the curtilage of his apartment. The trial court reserved
ruling on the motion pretrial but denied the motion after the jury
was impaneled and sworn. Then, after the State rested its case, the
court sua sponte changed course, granting the motion to suppress
and ordering a mistrial without prejudice based on a finding that
the dog had entered the curtilage of the apartment when it sniffed
immediately in front of Arroyo’s door.
Relying on OCGA § 5-7-1 (a) (4), which permits the State to
appeal from certain orders “suppressing or excluding evidence
illegally seized” in criminal cases, the State appealed the trial
court’s ruling, and the Court of Appeals affirmed. See State v.
Arroyo, 362 Ga. App. 207 (867 SE2d 607) (2022). We granted
certiorari, asking the parties to address (1) whether the Court of
Appeals had jurisdiction to hear the merits of the State’s appeal, and
(2) if so, whether the Court of Appeals erred in affirming the trial
court’s ruling on the motion to suppress. Because OCGA § 5-7-1 (a)
(4) did not authorize the State’s appeal, we conclude that the Court
of Appeals lacked jurisdiction over the case. Accordingly, we vacate
the Court of Appeals’ judgment and remand with instructions to
return the case to the trial court for further proceedings consistent
with this opinion.
“OCGA § 5-7-1 (a) establishes the universe of appeals the State
is permitted to seek in criminal cases,” and thus “appellate courts do
not have jurisdiction to entertain” an appeal filed by the State in a
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criminal case that falls “outside the ambit of [that provision].” State
v. Wheeler, 310 Ga. 72, 74 (1) (849 SE2d 401) (2020) (citation and
punctuation omitted)). As relevant here, subdivision (a) (4) of OCGA
§ 5-7-1 provides:
(a) An appeal may be taken by and on behalf of the State
of Georgia from the superior courts, state courts, and
juvenile courts and such other courts from which a direct
appeal is authorized to the Court of Appeals or the
Supreme Court in criminal cases and adjudication of
delinquency cases in the following instances:
...
(4) From 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[.]
OCGA § 5-7-1 (a) (4) (emphasis supplied).
“In interpreting statutes, we presume that the General
Assembly meant what it said and said what it meant.” Langley v.
State, 313 Ga. 141, 143 (2) (868 SE2d 759) (2022) (citation and
punctuation omitted). “Accordingly, we afford the statutory text its
plain and ordinary meaning,” Bell v. Hargrove, 313 Ga. 30, 32 (2)
(867 SE2d 101) (2021) (citation and punctuation omitted), and “read
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the statutory text in its most natural and reasonable way, as an
ordinary speaker of the English language would,” Langley, 313 Ga.
at 143 (2) (citation and punctuation omitted). “When, as here,
statutory text is clear and unambiguous, our interpretive task
begins and ends with the text itself.” Bell, 313 Ga. at 32 (2) (citation
and punctuation omitted).
Under the plain language of OCGA § 5-7-1 (a) (4), the State
may appeal “[f]rom an order . . . suppressing or excluding evidence
illegally seized” only if certain conditions are satisfied. Specifically,
the State may only appeal such an order if the motion to suppress
or exclude evidence illegally seized was both “made and ruled upon
prior to” the sooner of two events, either “[1] the impaneling of a jury
or [2] the defendant being put in jeopardy.” OCGA § 5-7-1 (a) (4)
(emphasis supplied). “Jeopardy attaches when the jury has been
impaneled and sworn,” Rios v. State, 311 Ga. 639, 643 (2) (859 SE2d
65) (2021) (citation and punctuation omitted), “or, in a bench trial,
when the judge begins to receive evidence,” United States v. Martin
Linen Supply Co., 430 U.S. 564, 569 (I) (97 SCt 1349, 51 LE2d 642)
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(1977).
Here, Arroyo “made” his motion to suppress evidence illegally
seized before “the impaneling of a jury” and before he was “put in
jeopardy.” OCGA § 5-7-1 (a) (4). But his motion was not “ruled
upon” before either of those two events. Id. Rather, it was only after
the jury was impaneled and after jeopardy had attached that the
court ruled on the motion to suppress. See Rios, 311 Ga. at 643 (2).
Accordingly, OCGA § 5-7-1 (a) (4) did not authorize the State to
appeal the trial court’s order granting Arroyo’s motion to suppress
evidence seized from his apartment, and the Court of Appeals lacked
jurisdiction to rule on the merits of the State’s appeal. See Wheeler,
310 Ga. at 74 (1).
The State contends that, although the trial court did not rule
on the motion to suppress until after the jury was impaneled and
Arroyo was put in jeopardy, its appeal nevertheless fell within the
scope of OCGA § 5-7-1 (a) (4) because the court granted a mistrial,
thereby returning the case to a pretrial status. This argument,
however, finds no support in the language of OCGA § 5-7-1 (a) (4).
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The court “ruled upon” the motion after the jury was impaneled and
Arroyo was put in jeopardy, and even if the subsequent grant of a
mistrial returned the case to pretrial status, the case was not in
pretrial status when the court “ruled upon” the motion. OCGA § 5-
7-1 (a) (4).
Nor are we persuaded by the State’s interpretation of State v.
Burton, 314 Ga. 637 (878 SE2d 515) (2022). The State notes that, in
Burton, we decided the merits of the State’s challenge to a trial court
ruling on a motion to suppress where the State had waited until
“[a]fter entry of the mistrial order” to appeal the ruling. Burton, 314
Ga. at 642 (1) (b). But Burton did not consider or decide whether
OCGA § 5-7-1 authorized the State’s appeal and is therefore not
precedent on that point. See Wolfe v. Bd. of Regents of the Univ.
System of Ga., 300 Ga. 223, 231 (2) (d) (794 SE2d 85) (2016)
(“Because these decisions did not address the appellate court’s
jurisdiction, . . . they are not authoritative precedent on any
jurisdictional issue.”). Moreover, because the order from which the
State appealed in Burton was a pretrial order suppressing evidence,
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see Burton, 314 Ga. at 640, 642 (1) (b), there was no dispute that the
motion to suppress at issue was “made and ruled upon prior to the
impaneling of a jury or the defendant being put in jeopardy,” OCGA
§ 5-7-1 (a) (4).1
Finally, the State argues that we should create an exception to
OCGA § 5-7-1 (a) (4) “when the trial court grants a motion to
suppress midtrial” to “ensure that the intent of the legislature
authorizing the State to appeal specific rulings is upheld.” However,
we lack authority to create a judicial exception to the statutory
requirements for appellate review. See Wheeler, 310 Ga. at 74 (1)
(“[I]f the State attempts an appeal outside the ambit of OCGA § 5-7-
1 (a), the appellate courts do not have jurisdiction to entertain it.”
(citation and punctuation omitted)). Cf. Cook v. State, 313 Ga. 471,
479 (2) (a) (870 SE2d 758) (2022) (explaining that we lacked
1 The State also cites State v. Smalls, 203 Ga. App. 283 (416 SE2d 531)
(1992), where the State appealed from a trial court’s mid-trial order
suppressing evidence, and the Court of Appeal exercised jurisdiction under a
prior version of OCGA § 5-7-1. See Smalls, 203 Ga. App. at 283-284 (1), (2).
To the extent that Smalls conflicts with our interpretation and application of
OCGA § 5-7-1 (a) (4), it is disapproved.
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authority to permit appeals that were “neither authorized by our
common law nor established by statute” (footnote omitted)).
Moreover, we presume that the legislature “said what it meant,”
Langley, 313 Ga. at 143 (2), and “[i]t is not for us to second-guess the
General Assembly’s policy determinations as embodied in the
statutory language it enacted,” Bell, 313 Ga. at 40 (5).
Because OCGA § 5-7-1 (a) (4) did not authorize the Court of
Appeals to address the merits of the State’s appeal, we vacate the
judgment of the Court of Appeals and remand the case. On remand,
the Court of Appeals is directed to return the case to the trial court
for further proceedings consistent with this opinion.
Judgment vacated and case remanded with direction. All the
Justices concur.
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