The State v. Charles. , 810 S.E.2d 627 ( 2018 )

SECOND DIVISION
MILLER, P. J.,
DOYLE, P. J., and REESE, 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 6, 2018
In the Court of Appeals of Georgia
A17A1886. THE STATE v. CHARLES. DO-063 C
DOYLE, Presiding Judge.
Alysia Charles was charged with driving under the influence of drugs,1
alcohol,2 and a combination thereof,3 as well as misdemeanor possession of
marijuana,4 driving with defective equipment,5 and driving without insurance.6 The
evidence of these crimes was gathered, in large part, during a traffic stop. She moved
1
OCGA § 40-6-391 (a) (2).
2
OCGA § 40-6-391 (a) (1).
3
OCGA § 40-6-391 (a) (4).
4
OCGA §§ 16-13-2 (b); 16-13-30 (j).
5
OCGA § 40-8-7 (a).
6
OCGA § 40-6-10 (b).
to suppress this evidence, and the trial court granted the motion, in part. The State
contends that the trial court erred by finding that the roadside stop was not authorized
because it was outside of the officer’s jurisdiction. Because the stop was authorized
under the “hot pursuit” doctrine, we reverse.
“On appellate review of a ruling on a motion to suppress, the trial court’s
findings on disputed facts will be upheld unless clearly erroneous, and its application
of the law to undisputed facts is subject to de novo review.”7 Here, the relevant facts
are undisputed.
1. The record shows that just prior to dawn one morning, a Fayette County
Sheriff’s Deputy and his trainee were sitting in a marked patrol car in the entrance of
a business in Fayette County when they observed Charles driving on the adjacent
state highway with a defective tag light. They elected to make a traffic stop, and the
trainee, who was driving, pulled the patrol car onto the highway to make contact with
Charles. The speed limit on the highway was 55 miles per hour, and it took the
officers approximately five or six tenths of a mile to catch up to Charles’s vehicle
“somewhere right around the Fayette County, Clayton County line.” They followed
7
(Punctuation omitted.) Brown v. State, 295 Ga. 695, 697 (2) (763 SE2d 710)
(2014).
2
Charles approximately three additional tenths of a mile to level roadway where they
activated their blue lights and executed the traffic stop. The deputy explained at the
suppression hearing that they were “going from a dead stop to get up there to 55[,
and] I’m not going to floor it to catch up with a car over a tag light. I’m not going to
do that to catch up to them[;] in light traffic[,] I catch up to them [without difficulty].”
He also explained that he is trained to make all of his traffic stops on level ground in
the event that roadside sobriety testing is required.
Once Charles stopped, the deputy, who had training in drug recognition and
impaired driving enforcement, was able to smell the odor of marijuana emanating
from the car when Charles rolled down her window. His trainee smelled it also. When
Charles stepped out of the vehicle, the deputy observed that she had bloodshot, glassy
eyes; “droopy” eyelids; slurred speech; and slow movements. Based on those
observations and the odor of marijuana, the deputy asked Charles to participate in
standardized field sobriety testing, and Charles agreed. Once engaged with Charles,
the deputy also smelled alcohol about Charles’s person, and based on her
performance on the field sobriety tests, as well as the observed odors, the deputy
determined that he had probable cause to arrest her for DUI less safe due to drug and
3
alcohol consumption. In a search incident to the arrest, the deputy found a
misdemeanor amount of suspected marijuana in Charles’s purse.
Charles moved to suppress the evidence from the traffic stop, and following an
evidentiary hearing, the trial court ruled that the stop was not authorized because it
occurred outside of Fayette County and did not fall within the “hot pursuit” doctrine,
but the court did not apply the exclusionary rule because the evidence discovered in
the stop was too attenuated from the unlawful traffic stop. The State now appeals.8
The State argues that the trial court erred by ruling that the stop was not
authorized under the “hot pursuit” doctrine. We agree.
Generally, “a peace officer has the power to make traffic stops and to arrest
only in the territory of the governmental unit by which he was appointed.”9
8
OCGA § 5-7-1 (a) (4) permits the State to directly appeal “[f]rom an order,
decision, or judgment suppressing or excluding evidence illegally seized . . . .”
Although the trial court here did not end up excluding the evidence, it ruled that the
traffic stop was illegal and purported to grant the motion to that extent. We assert
jurisdiction to avoid any error at trial based on references to the illegality of the stop.
See generally State v. Morrell, 281 Ga. 152, 153 (2) (635 SE2d 716) (2006) (“The
legislature enacted OCGA § 5-7-1 and granted the State the right to an immediate
appeal of suppression orders ‘so that an error committed by a trial judge, which
otherwise might work a miscarriage of justice, can be corrected on appeal, and before
attachment of jeopardy.’”).
9
Weldon v. State, 291 Ga. App. 309, 310-311 (661 SE2d 672) (2008),
disapproved on other grounds by Zilke v. State, 299 Ga. 232, 234, n. 2 (787 SE2d
4
[A]n exception to this rule[, however] is recognized in instances in
which “hot pursuit” of an offender takes a [peace] officer beyond his
geographical limits in order to effectuate an arrest. . . . [T]he fact that an
officer does not engage in a high speed chase in the pursuit of a driver
does not necessarily mandate a finding that the stop and arrest beyond
the officer’s territorial limits were unauthorized under the “hot pursuit”
doctrine. Nor is there any requirement that the officer activate
emergency lights or a siren before leaving his jurisdictional territory.
The critical elements characterizing “hot pursuit” are the continuity
and immediacy of the pursuit, rather than merely the rate of speed at
which pursuit is made. A pursuing officer may, and should, wait to stop
and arrest a suspect at the first opportunity for doing so which is, under
the circumstances, safe for all concerned — the suspect, the officers and
other motorists.10
Here, it is undisputed that the arresting deputies immediately began pursuit of
Charles upon observing her broken tag light, which is a violation of OCGA § 40-8-7
(a), within their territorial jurisdiction, Fayette County. The deputy testified that the
745) (2016) (explicitly not addressing “hot pursuit” doctrine).
10
(Citations and punctuation omitted; emphasis supplied.) Page v. State, 250
Ga. App. 795, 797 (553 SE2d 176) (2001). We note that Page relies in part on certain
language in State v. Gehris, 242 Ga. App. 384 (528 SE2d 300) (2000), which has
been disapproved of by Zilke v. State, 299 Ga. at 234, n. 2. But Zilke expressly
declined to address the “hot pursuit” doctrine, so it does not control our analysis here.
See Zilke, 299 Ga. at 235, n. 3.
5
speed limit was 55 miles per hour, and they began the pursuit from a standstill;
nevertheless, they conducted the pursuit with due regard for safety, taking into
account the relatively trivial nature of the observed offense. Further, the evidence also
is undisputed that the pursuit was continuous until they executed the traffic stop in
Clayton County less than one mile from the point at which they observed the offense.
Under these facts, the decision to look for safe, level ground to execute the traffic
stop did not interrupt the immediacy or continuity of the pursuit, nor did it materially
add to the duration of the pursuit — the deputies stopped Charles less than a mile
after starting from a standstill on a highway with a 55-mile-per-hour speed limit.
Therefore, the trial court erred by concluding that the stop was not authorized under
the “hot pursuit” doctrine,11 and we reverse the judgment of the trial court granting
Charles’s motion to suppress.
2. In light of our holding above, we need not address the State’s remaining
enumerations.
Judgment reversed. Miller, P. J., and Reese, J., concur.
11
See Margerum v. State, 260 Ga. App. 398, 399 (579 SE2d 825) (2003); Page,
250 Ga. App. at 797. See also Brown, 295 Ga. 695 (2) (a trial court’s “application of
the law to undisputed facts is subject to de novo review”).
6