Owens v. the State , 332 Ga. App. 525 ( 2015 )

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, JJ.
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/
June 16, 2015
In the Court of Appeals of Georgia
A15A0419. OWENS v. THE STATE.
MCFADDEN, Judge.
Allen Porter Owens appeals from his conviction, after a bench trial, of
possession of marijuana with intent to distribute. OCGA § 16-13-30 (j). At trial,
Owens asserted that police officers obtained inculpatory statements from him in
violation of his Miranda rights. See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602,
16 LE2d 694) (1966). Finding no violation, the trial court considered the statements
in determining that Owens was guilty of the charged offense. Owens argues that this
was error. Because Miranda did not apply to some of Owens’s inculpatory
statements, and because Owens had been given Miranda warnings when he made
other inculpatory statements, we affirm.
1. Facts.
By asking the trial court not to consider his statements at the bench trial,
Owens essentially sought to have the statements suppressed. Owens did not file a
written motion to suppress. See OCGA § 17-5-30 (b) (requiring motions to suppress
to be filed in writing); Copeland v. State, 272 Ga. 816, 817 (2) (537 SE2d 78) (2000)
(oral motions to suppress are procedurally defective). Nevertheless, the trial court
decided the issue of whether the statements were inadmissible because of a Miranda
violation, and the state neither objected at trial to the lack of a written motion to
suppress nor has argued on appeal that the issue was waived by Owens’s failure to
file a written motion. Accordingly, we will review the trial court’s ruling on the
statements.
In considering that issue, “we owe no deference to the way in which the trial
court resolved questions of law, but we generally accept [his] findings about
questions of fact and credibility unless clearly erroneous.” Edenfield v. State, 293 Ga.
370, 374 (2) (744 SE2d 738) (2013) (citation and footnote omitted). In this case, the
trial court expressly found the testimony of law enforcement officers more credible
than that of Owens.
Those officers testified that on August 20, 2010, a group of several probation
and police officers initiated a search of the house of a probationer, James Marshall
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Brown, pursuant to a Fourth Amendment waiver in the terms of Brown’s probation.
The officers asked other persons in the house, including Owens, to remain in the
living room while the officers spoke with Brown and performed the search. Owens
was not handcuffed and the officers did not consider him to be under arrest.
As Brown took two officers to his bedroom, another officer stood in the
doorway between the living room and the kitchen. From that position, he smelled an
overwhelming odor of raw marijuana and saw on the kitchen table a pile of green
leafy material that appeared to be marijuana. The officer asked Brown, who had
returned to the living room, if the material was marijuana. When Brown replied that
he did not know, Owens spoke and stated that it was marijuana. Owens also
volunteered that the marijuana on the table was his. The officer asked if there was
more marijuana in the house, and Owens replied, “There might be some, I don’t
know.” A search of the kitchen uncovered, in addition to the marijuana on the table,
multiple bags of marijuana and two scales of different sizes with marijuana residue
on them.
The officers placed Owens under arrest and handcuffed him. Before Owens
was given a Miranda warning, however, other officers who had been searching the
yard came into the house with a bag that contained marijuana and a firearm. As those
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officers were going through the bag and talking among themselves, Owens stated that
the bag and its contents belonged to him.
At that point one of the officers read Owens Miranda warnings and asked if he
would talk about the marijuana. Owens told the officers that all of the marijuana was
his.
2. Statements made before Owens received Miranda warnings.
Owens argues that the trial court should not have considered the statements he
made before receiving Miranda warnings because they were custodial statements
subject to Miranda. We disagree.
“Miranda applies only to statements which result from an in-custody
interrogation of the accused. Accordingly, in order for [Owens] to show that the [trial
court’s consideration] of his statement[s] was error, he must demonstrate that he was
both in custody and was interrogated at the time the statement[s were] made.” Cook
v. State, 274 Ga. 891, 894 (3) (561 SE2d 407) (2002) (citations and punctuation
omitted).
The evidence authorized a finding that Owens was not in custody when he
made his initial statements regarding the marijuana on the kitchen table. “A person
is considered to be in custody and Miranda warnings are required when a person is
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(1) formally arrested or (2) restrained to the degree associated with a formal arrest.
Unless a reasonable person in the suspect’s situation would perceive that he was in
custody, Miranda warnings are not necessary.” Sewell v. State, 283 Ga. 558, 560-561
(2) (662 SE2d 537) (2008) (citation and punctuation omitted). Case law distinguishes
custody from brief detentions. See Harrison v. State, 213 Ga. App. 174, 176 (444
SE2d 354) (1994).
When Owens made the initial statements, he was being lawfully detained in the
living room while officers conducted a search of the common areas of the house
pursuant to a Fourth Amendment waiver in a probation order pertaining to his
housemate, Brown. See id. (holding that officers are entitled to briefly detain
occupants of house pending search pursuant to probation order and recognizing that
such search presents same need for detention as does search executed pursuant to
warrant, because “[s]uch an undertaking is fraught with danger, particularly when
other people are inside [the house, and] leaves the officers vulnerable to attack”). He
had not been formally arrested and was not handcuffed. A reasonable person in his
position would not have thought that the detention would not be temporary. See
Knapp v. State, 229 Ga. App. 175, 178 (4) (493 SE2d 583) (1997) (person being
detained “is ‘in custody’ only if a reasonable person in the detainee’s position would
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have thought the detention would not be temporary”) (citing Berkemer v. McCarty,
468 U. S. 420, 442 (104 SCt 3138, 82 LE2d 317) (1984); see also Lewis v. State, 268
Ga. App. 547, 551 (2) (602 SE2d 278) (2004). Such brief, legal detention does not
invoke the requirement for Miranda warnings. See Tolliver v. State, 273 Ga. 785, 787
(546 SE2d 525) (2001) (Miranda warnings not required for routine questioning of
witnesses briefly detained at crime scene); Lewis, 268 Ga. App. at 550-551 (2)
(same); Zackery v. State, 262 Ga. App. 646, 650 (2) (586 SE2d 346) (2003) (detention
pending execution of search warrant).
The evidence also authorized a finding that Owens was not being interrogated
when, after being placed in custody, he stated that the marijuana found in a bag
outside the house belonged to him. Owens did not make the statement in response to
any questions, but instead volunteered the statement while two officers were
searching the bag and talking to each other. Miranda would not apply to such an
utterance, even if Owens had made it while in custody. See Haggins v. State, 277 Ga.
App. 742, 745 (2) (a) (627 SE2d 448) (2006) (“[A]lthough [defendant] was in custody
when he made the statement, [the officer] was not interrogating him or otherwise
soliciting a response. A defendant’s spontaneous, voluntary, unprompted utterance
to a police officer is admissible against him at trial.”) (citations omitted).
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Because Miranda did not apply to the statements discussed above, the trial
court did not err in rejecting Owens’s argument that he should not consider the
statements in the bench trial because they violated Miranda.
3. Statements made after Owens received Miranda warnings.
Owens argues that the trial court should not have considered the statements he
made after receiving Miranda warnings because those statements were secured using
the “two-step interrogation technique” disapproved by the United States Supreme
Court in Missouri v. Seibert, 542 U. S. 600 (124 SCt 2601, 159 LEd2d 643) (2004).
But in Seibert,
officers procured an initial statement in violation of Miranda, then
advised the defendant of his Miranda rights without informing him that
his initial statements would have been inadmissible, and finally
conducted further interrogation that led the defendant to repeat the same
information that he had provided in the inadmissible initial statement.
Id. at 606 (I); [cit.]. Here, in contrast, the . . . statement[s] that [Owens]
provided prior to the reading of Miranda [were] admissible and not in
violation of Miranda, and the . . . interview after [Owens] waived his
rights was no circumvention of Miranda.
Walker v. State, 296 Ga. 161, 170 (3) (a) (766 SE2d 28) (2014); see also Drake v.
State, 296 Ga. 286, 290 (2) n. 3 (766 SE2d 447) (2014) (“Because there was no
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Miranda violation [as to Owens’s earlier statements], there is no merit to [his] further
claim that the statements he made after being Mirandized were inadmissible under
Missouri v. Seibert[.]”).
Judgment affirmed. Ellington, P. J., and Dillard, J., concur.
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