The State v. Brogan , 340 Ga. App. 232 ( 2017 )

THIRD DIVISION
MILLER, P. J.,
MCFADDEN, P. J., and MCMILLIAN, J.
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
February 15, 2017
In the Court of Appeals of Georgia
A16A2152. THE STATE v. BROGAN.
MCFADDEN, Presiding Judge.
The state charged Colleen Brogan with driving under the influence of alcohol,
OCGA § 40-6-391 (a) (1) & (5), among other offenses. The trial court granted
Brogan’s motion to suppress evidence of her blood alcohol level obtained through a
warrantless blood test, finding that the state did not show Brogan voluntarily
consented to the blood test. The state appeals. Because the evidence presented at the
hearing on the motion to suppress authorized the trial court’s ruling, we affirm.
A blood test is a search within the meaning of the Fourth Amendment. Williams
v. State, 296 Ga. 817, 819 (771 SE2d 373) (2015). A warrantless search is “per se
unreasonable under the Fourth Amendment, subject only to a few specifically
established and well-delineated exceptions. Thus, a warrantless search is presumed
to be invalid, and the [s]tate has the burden of showing otherwise.” Id. (citations
omitted). In this case, the state argued that no search warrant was needed because
Brogan consented to the blood test. See id. at 821 (“it is well settled in the context of
a DUI blood draw that a valid consent to a search eliminates the need for . . . a search
warrant”) (citations omitted). Consequently, to meet its burden, the state was required
to show that Brogan acted freely and voluntarily in giving actual consent. Id. at 821-
822; State v. Flores-Gallegos, 337 Ga. App. 79, 82 (785 SE2d 911) (2016). After
receiving evidence at a hearing, the trial court granted the motion to suppress, finding
that the state had not “met its burden in proving voluntary consent to the arresting
officer’s request for a blood sample.”
We first consider our standard of appellate review, which requires us to
determine whether the facts material to the ruling on the motion to suppress are
disputed or undisputed. See State v. Underwood, 283 Ga. 498, 500-501 (661 SE2d
529) (2008). The facts material to whether Brogan voluntarily consented to the blood
test are disputed. The law enforcement officer who arrested Brogan testified that he
believed she had consented to the test after he read her Georgia’s implied consent
notice, see OCGA § 40-5-67.1, but he could not specifically recall how she
demonstrated her consent. A videorecording of the officer’s interaction with Brogan
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exists, but the facts material to whether Brogan consented are not indisputably
discernable from it. See State v. Allen, 298 Ga. 1, 2 (1) (a) (779 SE2d 248) (2015)
(reviewing court may consider “facts indisputably discernable from a videotape”)
(citation omitted). The videorecording does not capture Brogan’s alleged consent
either visually or audibly. And the hearing transcript shows that, although the officer
testified that he believed Brogan was capable of listening to him and making
decisions during their encounter, the trial court questioned this point after hearing the
officer’s testimony and viewing the videorecording. Compare Clay v. State, 290 Ga.
822, 825 (1) (A) (2) n. 1 (725 SE2d 260) (2012) (finding that combination of
videorecording and testimony regarding voluntariness of defendant’s consent
necessitated credibility determinations by trial court) with State v. Depol, 336 Ga.
App. 191 (784 SE2d 51) (2016) (finding that controlling facts regarding defendant’s
actual consent to breath test were undisputed because they were plainly discernable
from videorecording).
“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.” Hughes
v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015) (citation omitted). If the trial
court has made express findings of fact, we must accept those findings unless they are
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clearly erroneous, construe the evidentiary record in the light most favorable to the
factual findings and judgment of the trial court, and limit our consideration of the
disputed facts to those expressly found by the trial court. Id. The trial court, however,
is not required to make express findings of fact after a hearing on a motion to
suppress. Barnes v. State, 228 Ga. App. 44 (491 SE2d 116) (1997). In such a case, we
nevertheless construe the evidence most favorably to uphold the trial court’s
judgment. Id.
The trial court’s order contains only one statement that arguably could be
viewed as a finding of fact — the statement that the state had not “met its burden in
proving voluntary consent to the arresting officer’s request for a blood sample.” See,
e.g., Code v. State, 234 Ga. 90, 93 (III) (214 SE2d 873) (1975) (in determining
whether the state met its burden of showing that accused voluntarily consented to a
search, “[v]oluntariness is a question of fact to be determined from all the
circumstances”) (citations and punctuation omitted); Rogue v. State, 311 Ga. App.
421, 424 (715 SE2d 814) (2011) (“Whether consent [to search] is voluntarily given
is a question of fact for the trial court to determine from all the circumstances.”)
(citation omitted). But see, e.g., Clay, supra, 290 Ga. at 831 (2) (D) (implying in dicta
that whether defendant consented to search presented legal issue); Kendrick v. State,
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335 Ga. App. 766, 768 (782 SE2d 842) (2016) (viewing issue of whether defendant
freely and voluntarily consented to breath test to be an issue for the appellate court
to resolve on de novo review of undisputed evidence). But whether we treat the trial
court’s determination regarding voluntariness as a finding of fact or a conclusion of
law, because the evidence in this case is disputed we construe that evidence in the
light most favorable to the trial court’s judgment. “[I]n the absence of evidence of
record demanding a finding contrary to the judge’s determination, [we] will not
reverse the ruling sustaining a motion to suppress.” State v. Bowman, 337 Ga. App.
313, 318 (787 SE2d 284) (2016) (citations and punctuation omitted; emphasis in
original).
So viewed, the hearing evidence showed that in the early afternoon on May 13,
2015, a law enforcement officer was dispatched to investigate a car stopped in the
middle of a busy intersection. Ambulance personnel were on the scene when he
arrived; they had found the car in gear and Brogan asleep behind the wheel.
The officer roused Brogan and spoke with her, and he observed that her face
looked lethargic and “droopy” and her speech was slow and slurred. When Brogan
stepped out of the car at the officer’s request, she was so unsteady that the officer
believed she could not safely perform field sobriety tests. Once out of the car, Brogan
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held out her arms in a stiff, unnatural posture; she told the officer she was doing this
so that he could take her blood pressure, even though the ambulance personnel had
taken her blood pressure moments before. In the videorecording of the encounter,
Brogan appears confused and lacking control over her physical movements, and she
gives tentative and sometimes nonresponsive or incomprehensible answers to the
officer’s questions.
The officer did not smell any alcohol on Brogan or in her car, and he told
Brogan that he did not suspect she was impaired by alcohol. He asked Brogan if she
had taken any drugs, and she responded that she had taken allergy medication. The
officer told Brogan that he was worried about her and suggested she get medical
attention. When Brogan replied that she wanted to go home, the officer told her that
she could not drive herself home. At that point, Brogan turned away from the officer
who, believing that Brogan was heading back to her car, handcuffed her and placed
her in his patrol vehicle. He did not tell her that she was under arrest or explain why
he had detained her.
Once Brogan was in the patrol vehicle, the officer read her Georgia’s informed
consent notice. He then asked her if she consented to a blood test. The officer testified
that Brogan bobbed her head, but he conceded that he “really c[ould]n’t speak to how
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she articulated yes,” and no answer can be heard on the videorecording. The officer
then drove Brogan to a hospital, where her blood was drawn for testing. The results
of the blood test were not entered into evidence; however, at the hearing the
prosecutor and defense counsel agreed that the test showed she had an extremely high
blood alcohol level.
This evidence does not demand that we reverse the trial court’s ruling
sustaining Brogan’s motion to suppress. See Bowman, supra, 337 Ga. App. at 318.
It is not clear from the evidence that Brogan gave any affirmative response to the
implied consent notice, but even if she did respond affirmatively to it, our Supreme
Court in Williams, supra, 296 Ga. at 821-822, “rejected [a] per se rule automatically
equating an affirmative response to the implied consent notice with actual consent to
a search within the meaning of the Fourth Amendment. Instead, courts must now
conduct a case-by-case analysis, considering the totality of the circumstances.”
Kendrick, supra, 335 Ga. App. at 769 (citations omitted).
The evidence in this case, viewed in the light most favorable to the judgment,
showed that Brogan was extremely intoxicated and confused during her encounter
with the officer. These factors supported the trial court’s conclusion that she did not
voluntarily consent to the blood test. See State v. Jung, 337 Ga. App. 799, 803-804
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(788 SE2d 884) (2016); State v. Williams, 337 Ga. App. 791, 796 (788 SE2d 860)
(2016); Bowman, supra, 337 Ga. App. at 317-318; State v. Durrence, 295 Ga. App.
216, 217-218 (671 SE2d 261) (2008). The evidence also showed that the interaction
between the officer and Brogan was ambiguous. The officer did not tell Brogan she
was under arrest; instead, he told her that he did not think she was under the influence
of alcohol and he expressed concern about her medical condition and her need for
medical attention. While Brogan’s knowledge of her right to refuse consent to a
search was “not the sine qua non of an effective consent,” it nevertheless was a factor
that the trial court could take into account, Kendrick, 335 Ga. App. at 769 (citation
and punctuation omitted), and these circumstances could be construed to cast doubt
on that knowledge.
In its brief, the state essentially argues that the evidence supported a finding of
voluntary consent. Were we reviewing a denial of a motion to suppress, this argument
might be persuasive. But we are reviewing a grant of a motion to suppress, and the
evidence “[did] not demand a finding contrary to the trial court’s decision.”
Durrence, supra, 295 Ga. App. at 218. For this reason, we must affirm. Bowman,
supra, 337 Ga. App. at 318; Durrence, supra, 295 Ga. App. at 218.
Judgment affirmed. Miller, P. J., and McMillian, J., concur.
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