Chavez-Ortega v. the State , 331 Ga. App. 500 ( 2015 )

SECOND DIVISION
ANDREWS, P. J.,
MCFADDEN and RAY, 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/
March 24, 2015
In the Court of Appeals of Georgia
A14A2188. CHAVEZ-ORTEGA v. THE STATE.
RAY, Judge.
Jonathan Chavez-Ortega has been charged by accusation with driving under
the influence of alcohol, reckless driving, and racing. We granted Chavez-Ortega’s
application for interlocutory review of an order denying a motion to suppress his
custodial statements. Because we find that Chavez-Ortega was in custody when he
invoked his right to remain silent, but that the police nonetheless continued to
question him which led to the incriminating evidence which he seeks to suppress, we
reverse the trial court’s denial of Chavez-Ortega’s motion to suppress.
Three fundamental principles must be followed when conducting an
appellate review of a motion to suppress. First, when a motion to
suppress is heard by the trial judge, that judge sits as the trier of facts.
The trial judge hears the evidence, and [her] findings based upon
conflicting evidence are analogous to the verdict of a jury and should
not be disturbed by a reviewing court if there is any evidence to support
them. Second, the trial court’s decision with regard to questions of fact
and credibility must be accepted unless clearly erroneous. Third, the
reviewing court must construe the evidence most favorably to the
upholding of the trial court’s findings and judgment. . . . Where the issue
turns on the question of whether a trial court committed an error of law
in granting a motion to suppress, we apply a de novo standard of review.
(Citations and punctuation omitted.) Williams v. State, 329 Ga. App. 650, 650 (766
SE2d 82) (2014).
The evidence adduced at the suppression hearing shows that Officer Archevald
and Officer Denson, with the Cobb County Police Department, observed two vehicles
make a turn at a high rate of speed on wet road conditions. Both officers heard tires
squealing, and the cars appeared to be racing as they continued to accelerate along
Barnes Mill Road. The officers activated their sirens and emergency lights to initiate
a traffic stop as both cars turned onto Ven Villa Drive, but only the car driven by
Gerald Sanders stopped. The second car continued down the road. Chavez-Ortega
was later seen walking back to the traffic stop location. When an officer approached
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Chavez-Ortega, he noticed that Chavez-Ortega smelled of alcohol and had watery,
bloodshot eyes.
Officer Taylor responded to the scene as backup. He briefly spoke to Chavez-
Ortega and asked him where he was coming from. When Chavez-Ortega stated that
he was walking from a friend’s house, but could not provide details as to where the
friend lived, Officer Taylor detained him in handcuffs and placed him in the back of
the patrol car while the other two officers were finishing the investigation of Sanders.
The State played a video recording of the interior of the patrol car during the
suppression hearing. The visual field of the camera was trained toward the front of
the patrol car, but the audio portion is audible. Officer Taylor informed Chavez-
Ortega that he was “not arrested yet” and that he would be “free to go” if they did not
find his car nearby. Officer Denson then questioned Chavez-Ortega about whether he
had been drinking, where he had been that evening, and if he had been driving the
other car. Chavez-Ortega admitted to drinking at a buddy’s house nearby, but stated
that he had not been driving. Officer Taylor acknowledged at the suppression hearing
that Chavez-Ortega was “detained” and not free to leave once he was handcuffed and
placed in the patrol car. Officer Denson then arrived and questioned Chavez-Ortega
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about where he lived and how old he was. Chavez-Ortega quickly stated that he did
not want to talk, and Officer Denson advised him of his Miranda rights.
The video recording shows that at the conclusion of the Miranda warning,
Chavez-Ortega can be heard to tell the officer “I don’t want to talk to you.” It appears
from the transcript that the trial court could not understand this statement during the
suppression hearing due to the poor quality of the audio recording.
Officers continued to question Chavez-Ortega about where his car was located.
Chavez-Ortega again stated that he had not been driving and that he was coming from
a friend’s house, but admitted that he was drunk. Once taken outside the patrol car,
Chavez-Ortega again stated that he did not want to talk.
During the course of the investigation, Sergeant Paul Rushing, who also
responded as backup, located Chavez-Ortega’s vehicle up the street. He testified that
the driver’s floor mat was wet, but that the passenger’s side was only dirty, indicating
that only one person had been in that car.
After indictment, Chavez-Ortega filed a motion to suppress the statements he
had made before and after he was issued a Miranda warning. The trial court denied
the motion, finding, inter alia, that Chavez-Ortega was not in custody during his
questioning, that Officer Denson recited the Miranda warning to Chavez-Ortega “as
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a safety precaution[,]” and that his statements were made voluntarily and without
coercion.
1. Chavez-Ortega argues that the trial court erroneously determined that he was
not “in custody” when he made statements to officers prior to receiving the Miranda
warnings and that the trial court erred in denying his motion to suppress those
statements. We agree.
“Miranda warnings are required when a person is interviewed by an
investigating officer while in custody.” (Citation omitted.) Lengsfeld v. State, 324 Ga.
App. 775, 781 (1) (b) (751 SE2d 566) (2013). When “determining whether a suspect
was in custody for Miranda purposes, a court must examine all of the circumstances
surrounding the interrogation, but the ultimate inquiry is simply whether there was
a formal arrest or restraint on freedom of movement of the degree associated with a
formal arrest.” (Citation and punctuation omitted.) Teele v. State, 319 Ga. App. 448,
453 (2) (a) (738 SE2d 277) (2012). Whether a suspect is in custody “does not depend
upon the subjective views harbored by either the interrogating officers or the person
being questioned. Instead, the only relevant inquiry is how a reasonable person in the
suspect’s position would have understood the situation.” (Citations and punctuation
omitted.) Id. “A reasonable person is one neither guilty of criminal conduct and thus
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overly apprehensive nor insensitive to the seriousness of the circumstances.”
(Punctuation and footnote omitted.) State v. Mosley, 321 Ga. App. 236, 238 (739
SE2d 106) (2013).
Here, Officer Taylor approached Chavez-Ortega as soon as he saw him walking
down the road and, after questioning Chavez-Ortega about where he was coming
from, placed him in handcuffs and put him in the back of the police cruiser. At the
suppression hearing, officers even admitted that Chavez-Ortega was “detained” and
“basically taken into custody,” and was not free to leave when he was in the police
cruiser. Although Officer Taylor informed Chavez-Ortega that he was “not arrested
yet[,]” we fail to see how a reasonable person in Chavez-Ortega’s position would not
have considered himself to be under arrest, given that he was handcuffed, placed in
the back of a patrol car and informed that officers were searching for his vehicle. See,
e. g., Teele, supra at 453 (2) (a) (defendant was in custody for Miranda purposes
when she was approached by officers at gunpoint, ordered to lie on the ground,
handcuffed and placed in the backseat of a marked patrol car); State v. Kendrick, 309
Ga. App. 870, 871-872 (711 SE2d 420) (2011) (State did not contest that defendant
was “in custody” for Miranda purposes once he was handcuffed and confined in the
backseat of a police cruiser); Mayberry v. State, 267 Ga. App. 620, 622 (600 SE2d
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703) (2004) (defendant’s statement was made in custodial circumstances when
defendant’s car was surrounded by police cruisers, he was handcuffed to an
ambulance gurney while officers accompanied him to the hospital, and he was later
handcuffed to a stretcher in the hospital). Compare Harper v. State, 243 Ga. App.
705, 706 (1) (534 SE2d 157) (2000) (although suspect had been detained pursuant to
a traffic stop and was suspected for DUI, he was not in custody for Miranda purposes
when he was allowed to walk around, was not placed in the back of a police car and
was not handcuffed); Campbell v. State, 255 Ga. App. 502, 504-505 (1) (a) (565 SE2d
834) (2002) (defendant was not in custody for Miranda purposes when he was briefly
detained in the back of a patrol car and officers asked if there were drugs in his car
when an audio recording of the detention revealed that the defendant believed that the
investigation would result in his release and that he would soon regain freedom of
movement).
Officers conducting an ordinary traffic stop or arriving at the scene of
suspected criminal activity may conduct a “‘general on-the-scene investigation,’
including making inquiries solely to determine whether there currently is any danger
to them or other persons.” (Citations omitted.) State v. Wintker, 223 Ga. App. 65, 67
(476 SE2d 835) (1996). These inquiries may even require them to temporarily detain
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someone attempting to leave before the preliminary investigation is completed, and
such inquiries and detention “do not trigger the requirements of Miranda, unless the
questioning is aimed at obtaining information to establish a suspect’s guilt.”
(Citations and punctuation omitted.) Id. Accord Campbell, supra at 505-506 (1) (b)
(briefly placing a detainee in the back of a patrol car in order to further a legitimate
investigation does not constitute “custody” for Miranda purposes). Here, however,
the officers’ inquiries went beyond a general on-the-scene investigation. The
questions posed by officers asking Chavez-Ortega where he had been, if he had been
drinking, and if he had been driving the other speeding car, were “clearly aimed at
obtaining information to establish [his] guilt.” (Punctuation and citation omitted.)
Wintker, supra at 68-69. Officer Taylor’s question to Chavez-Ortega if he was the
driver of the other car is clearly directed at eliciting information to establish guilt. See
Id. (although told she was not under arrest, suspect was in custody for Miranda
purposes when she was separated from other passengers, confined to the back of a
locked patrol car, observed a police dog and his handler come to the scene and was
questioned about matters aimed at establishing her guilt).
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Accordingly, we find that the trial court erred in finding that statements
Chavez-Ortega made to officers were made in noncustodial circumstances. Such
statements are inadmissible and must be excluded at trial. See McDougal v. State, 277
Ga. 493, 498 (1) (A) (591 SE2d 788) (2004).
2. Chavez-Ortega next asserts that the trial court erred in denying his motion
to suppress the statements he made to Officer Denson after he had been read his
Miranda rights. We agree.
“An arrested person has the constitutional right to remain silent, but he must
clearly assert his desire to remain silent to exercise that right. Police must honor an
arrested person’s right to remain silent if the person clearly and unambiguously states
that he wants to end questioning.” (Citations omitted.) Ridley v. State, 290 Ga. 798,
802 (4) (725 SE2d 223) (2012).
Here, our review of the audio portion of Chavez-Ortega’s interrogation reveals
that he clearly informed Officer Denson that he did not wish to speak to him prior to
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being read his Miranda rights, and that he stated that he did not want to talk to the
officers immediately after being informed of his Miranda rights.1
It is clear that the statements made by Chavez-Ortega after being read his
Miranda rights resulted from direct interrogation by the officer, and were not the
spontaneous and unsolicited statements of a person who was anxious to explain.
Directly after reading the Miranda warning, and after Chavez-Ortega had twice
informed the office that he did not wish to speak to him, Officer Denson began to ask
Chavez-Ortega questions. However, after Chavez-Ortega made these unequivocal
assertions of his right to remain silent, all questioning of him should have ceased.
Green, supra at 571-572 (2). Indeed, “[a] person being subjected to custodial
interrogation may at any time express his or her desire to remain silent and, thereby,
end the interrogation. Any exercise of this right to silence must be ‘scrupulously
honored.’” (Punctuation and footnote omitted.) Id. at 571-572 (2). Instead of honoring
1
We again note that it appears that, due to the poor quality of the recording, the
trial court was unable to hear Chavez-Ortega’s post-Miranda statement that he did not
wish to speak with the officer. In reviewing the videotaped interview, however, this
Court owes no deference to the trial court’s findings of fact “because it was not the
subject of testimony requiring the trial court’s weighing of credibility or resolving of
conflicts in the evidence.” (Citations omitted.) Green v. State, 275 Ga. 569, 573 (2)
n. 11 (570 SE2d 207) (2002). Accord Lyons v. State, 244 Ga. App. 658, 661-662 (1)
(535 SE2d 841) (2000).
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Chavez-Ortega’s right to remain silent, Officer Denson continued to question him.
Accordingly, any responses by Chavez-Ortega after he stated his wished to remain
silent should have been suppressed at trial. See Webb v. State, 284 Ga. 122, 125 (3)
(663 SE2d 690) (2008).
Judgment reversed. Andrews, P. J., and McFadden, J., concur.
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