Lead Opinion
After a jury trial, Chris Baker was convicted of driving under the influence of alcohol to the extent that he was a less safe driver.
On appeal, “this court views the evidence in the light most favorable to support the verdict, and an appellant no longer enjoys a presumption of innocence.” (Punctuation omitted.) Dumas v. State,
The uncontroverted evidence shows that on May 5, 2000, while working at a roadblock, Officer A. M. Wright stopped Baker and asked for his driver’s license and insurance information. Officer Wright testified that he noticed that Baker’s eyes were enlarged, a moderate odor of alcohol emanated from his breath, and his speech was very fast and “stutterish.” Based on these observations, Officer Wright asked Baker to pull to the side of the road.
The first test that Officer Wright administered to Baker was the HGN evaluation. Baker exhibited several clues of impairment. The next tests administered were the walk and turn test and the one-leg stand test. Officer Wright testified that four indicators on the walk and turn test suggest alcohol impairment, and Baker exhibited at least five. On the one-leg stand test, swaying and using one’s arms to balance are the impairment indicators, and Baker exhibited both. Based on Baker’s performance on these tests, Officer Wright concluded that Baker “was definitely under the influence of alcohol.” Officer Wright then offered Baker a preliminary breath test which he agreed to take. Despite Officer Wright’s instructions to blow into the alco-sensor tube, Baker sucked on the tube instead. After Officer Wright explained the instructions again, Baker blew into the tube, and the results were positive for alcohol. Concluding that Baker was not a safe driver, Officer Wright arrested him.
1. During the hearing on Baker’s motion to suppress all evidence gathered at the roadblock, Officer Wright testified that he was not present when one of his supervisors decided to implement the roadblock, and that he could not remember which of the two supervisors had made the decision. In light of this testimony and the fact that Officer Wright was the state’s only witness, Baker contends that the state failed to prove the roadblock was lawful. Thus, he argues, his motion in limine seeking suppression of the evidence should have been granted. We agree.
LaFontaine v. State,
A roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the “screening” officer’s training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.
Id. at 253 (3), citing State v. Golden,
City of Indianapolis v. Edmond
All of these exceptions to the general rule were subject to additional procedural requirements imposed by appellate courts to attempt to ameliorate these deviations from the Fourth Amendment. Federal precedents required that the roadblock be conducted pursuant to a plan devised by supervisory personnel and not by officers in the field using their unfettered discretion. Brown v. Texas,
Justice O’Connor, writing for the majority in Edmond, worried that the exceptions were threatening to absorb the general rule. She argued that some line must be drawn or “the Fourth Amendment
But the increased emphasis in Edmond on the primary purpose of a roadblock makes proof of a valid purpose a constitutional prerequisite to the admissibility of evidence seized at the roadblock. Moreover, because of the well-established rule that supervisory personnel, rather than officers in the field, must make the decisions implementing the roadblock, Edmond now requires us to focus on the primary purpose decreed by the supervisors. As Edmond explains in a somewhat Delphic manner, what is required is “an inquiry into purpose at the programmatic level.”
In the case at bar, the state attempted to prove, in response to a motion in limine, that the roadblock’s primary purpose was to check for drivers operating vehicles under the influence of alcohol, a clearly valid purpose under Sitz. The evidence offered to prove the purpose was the testimony of the state’s sole witness, Officer Wright of the Atlanta Police Department. Officer Wright testified that the purpose of the roadblock was “for DUI checks” and that the decision to set up the roadblock was made by “my supervisor of the evening.” However, further examination revealed that Officer Wright did not remember
Wright’s testimony establishes clearly that his purpose was “DUI checks.” His actions that morning and the actions of the other officers on the scene were consistent with that purpose. But his actions are not conclusive evidence of the supervisor’s purpose in implementing the checkpoint. Wright’s precise testimony was:
Q. Thank you. Who called this roadblock?
A. My supervisor of that evening.
Q. And in which city and county was the roadblock held?
A. City of Atlanta, Fulton County.
Q. What was the purpose of this roadblock?
A. For DUI checks.
If this testimony is read as evidence of the supervisor’s purpose, the testimony is hearsay. The testimony could be admitted as original evidence to explain the officer’s conduct. OCGA § 24-3-2. But the statements would nonetheless be inadmissible to evidence the truth of the matters contained in the hearsay testimony. Roger v. State,
Moreover, the decision of the United States Supreme Court in Edmond has elevated proof of the supervisor’s “primary purpose” to a constitutional prerequisite of a lawful checkpoint. We do not know from the transcript whether “DUI checks” were the purpose of the supervisor who decided to implement the roadblock or were the purpose of the officers in the field. The burden was on the state to prove that the seizure, i.e., the stopping of Baker’s vehicle, was constitutionally valid. Under the guidance of Edmond, the required proof included evidence of the supervisor’s primary purpose in implementing the roadblock. We will not presume from a silent record that constitutional requirements have been satisfied. Bowers v. Moore,
Our decision today does not conflict with the most recent decision on the subject by our state Supreme Court. In Lutz v. State,
Our own court considered the Edmond decision last term in Wrigley v. State,
Although the holding of the Supreme Court of Georgia in Lutz and the holdings of our decisions mentioned above seem to comport with Edmond, several past decisions of our court are not in accord with Edmond’s insistence that supervisory personnel implement the roadblock for an acceptable primary purpose.
The two dissents erroneously argue that our decision today would require the prosecution in each roadblock case to call a supervisor to testify to the roadblock’s purpose. Instead, what we hold is that the state must present some admissible evidence, testimonial or written, of the supervisor’s purpose, i.e., purpose at the “programmatic level,” in the words of Edmond. In the case at bar, Officer Wright did not know which supervisor decided to implement the roadblock, nor was he present when the decision was made. The dissents’ scholarly references to Castell v. State,
Nor can we agree with the apparent premise of the dissents, based on our decision in Heimlich v. State,
We must follow the United States Supreme Court’s interpreta
In summary, the constitutional validity of roadblocks in Georgia must now be decided in view of our controlling precedent, LaFontaine, as modified by Edmond. Read together those decisions prescribe that a roadblock is valid when (1) the record reflects that the decision to implement the checkpoint in question was made by supervisory officers and not officers in the field and that the supervisors had a legitimate primary purpose. The phrase “decision to implement” includes deciding to have this roadblock, and where and when to have it.
The roadblock in the case at bar did not meet the first of the cri
2. Baker contends that the state did not prove that the officers who worked the roadblock were sufficiently trained to qualify as screening officers. LaFontaine, supra, directs us to focus on the qualifications of Officer Wright in this case because he determined that it was necessary to administer field sobriety tests to Baker. Officer Wright testified that he received his initial DUI training at the City of Atlanta Police Academy, as well as supplemental training in DUI detection. Furthermore, during his three and a half years as an officer, he made approximately 200 DUI arrests. Accordingly, we find that Officer Wright’s training and experience were sufficient to qualify him to screen motorists for DUI. See Wrigley, supra (an officer with ten years of service who had made over 100 DUI arrests was sufficiently qualified to serve as a screening officer).
3. In his second enumeration of error, Baker contends that the trial court committed reversible error when it admitted his alcosensor results without proof that the alco-sensor was an approved device. We discigree.
In Lewis v. State,
Officer Wright testified that the alco-sensor was approved for use in the state, but he did not know who approved it. He also testified that Baker’s alco-sensor result was positive for the presence of alcohol. Furthermore, as in Lewis, here, Officer Wright did not testify that the defendant “failed” the alco-sensor, and the state did not use the alco-sensor result as a measure of the defendant’s blood alcohol level. Therefore, in light of Baker’s testimony that he had been drinking that evening, the open container of beer between the driver’s seat and the door, and Baker’s performance on the other sobriety tests, “we conclude that it is highly probable that this alleged improper foundation did not affect the jury’s verdict.” (Citation omitted.) Lewis,
4. Finally, Baker argues that the trial court’s jury instruction on
The HGN evaluation is based on the well-known and medically acceptable principle that a noticeable nystagmus can be caused by the ingestion of alcohol. The HGN evaluation is an accepted common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol.
Baker argues that by instructing the jury that the test had reached a “state of verifiable certainty,” the court gave the evidence undue weight. We rejected this argument in Waits v. State,
Our decision in Division 1 of this opinion is dispositive and requires reversal of the conviction.
Judgment reversed.
Notes
OCGA § 40-6-391 (a) (1). Baker was acquitted of violations of OCGA § 40-6-391 (a) (2) and (4). Baker was also convicted of three other violations, none of which are pertinent to this appeal.
Edmond was announced on November 28, 2000. Trial in the case at bar began on October 31, 2000, and judgment was entered on November 2, 2000. New rules for the conduct of criminal prosecutions must “be applied retroactively to all cases, state or federal, pending on direct [appeal] or not yet final. . . .” Griffith v. Kentucky,
Prouse invalidated a discretionary, suspicionless spot check of a motorist’s driver’s license but suggested in dicta that “[questioning of all oncoming traffic at roadblock-type stops” would be valid.
The roadblock approved in the leading Georgia decision, LaFontaine, supra, might be invalid under the Edmond analysis. The primary purpose of the LaFontaine roadblock was to detect “any violation of Georgia law, whatsoever.” (Punctuation omitted.)
See generally Allison, The Constitutionality of Drug Interdiction Checkpoints, 69 U. Cin. L. Rev. 671 (2001) (discussing circuit court decision in Edmond)-, Kellman, Biological Terrorism: Legal Measures for Preventing Catastrophe, 24 Harv. J. L. & Pub. Pol’y 417 (2001).
But see New Jersey v. T. L. O.,
Permissible primary purposes are those which serve “special needs, beyond the normal need[s of] law enforcement,” and include elimination of immediate, vehicle-bound threats to life and limb, e.g., sobriety checkpoints and driver’s license examination, special circumstances such as border patrol checks near borders, and emergencies such as “an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.” (Punctuation omitted.) Edmond,
In the following decisions, the defendant either did not challenge the lack of a supervisor’s decision, conceded that point, or the evidence did show a proper decision and a proper primary purpose: Wrigley,
The precedents assume that supervisors will be “unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class.” Martinez-Fuerte,
Dissenting Opinion
dissenting.
I must respectfully dissent from Division 1 of the majority opinion. I do not believe, as the majority holds, that the decisions of the U. S. Supreme Court or the Georgia appellate courts create a constitutional requirement that a police supervisor must testify as to the purpose of a roadblock.
In City of Indianapolis v. Edmond,
In addition to the directives of the U. S. Supreme Court, we must also consider five factors established by our own Supreme Court for determining the propriety of a roadblock:
A roadblock is satisfactory where [(1)] the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; [(2)] all vehicles are stopped as opposed to random vehicle stops; [(3)] the delay to motorists is minimal; [(4)] the roadblock operation is well identified as a police checkpoint; and [(5)] the “screening” officer’s training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.
LaFontaine v. State,
While LaFontaine relies upon evidence that a supervisor called for the roadblock as one factor in ensuring that a roadblock is not used as a subterfuge for an improper purpose, it does nothing to elevate the role of the supervisor for evidentiary purposes. Instead, the law in this state has always been that we look to the “totality of the circumstances” to determine whether the roadblock was legal. Wrigley v. State,
In applying this rule to the case before us, I would find that the evidence was sufficient to show that the primary purpose of the roadblock was to check for DUI violations. While the supervisor’s testimony as to its purpose is one piece of evidence, it is not irrefutable. And perhaps one of the best pieces of evidence would be the orders conveyed to the officers actually implementing the roadblock. Whatever purpose may have been chosen or discussed by supervisors, it is the orders communicated to the officers that truly determine the purpose of the roadblock. The stated purpose dictates the procedures followed and the actions taken by those officers, whatever the true motivations of the supervisors may be,
Here, Officer Wright testified in response to a series of questions directed to him:
Q. Thank you. Who called this roadblock?
A. My supervisor of the evening.
Q. And in which city and county was the roadblock held?
A. City of Atlanta, Fulton County.
*706 Q. What was the purpose of the roadblock?
A. For DUI checks.
Officer Wright thus explained the who, where, and why of the roadblock. From the context of these questions, it can be inferred that he was testifying as to the official purpose communicated to him, and not as to his private motivations in participating in the roadblock. His testimony was therefore relevant evidence of the programmatic purpose of the roadblock.
It is immaterial that months later he could not recall which particular supervisor actually called the roadblock or that he was not present when the decision was made. While Officer Wright may not be able to testify as to what was discussed or decided by his supervisors, he can certainly testify as to what he was told as to the purpose for the roadblock. Thus, Officer Wright’s testimony is not hearsay, but rather is direct evidence of the purpose communicated to the officers involved:
Neither a hearsay nor a confrontation question would arise from use of testimony to prove merely that the statement had been made. The hearsay rule does not prevent a witness from testifying to what he has heard; it is rather a restriction on the proof of fact through extrajudicial statements. From the viewpoint of the Confrontation Clause, a witness under oath, subject to cross-examination, and whose demeanor can be observed by the trier of fact, is a reliable informant not only to what he has seen but also to what he has heard.
(Punctuation omitted.) Castell v. State,
The majority suggests that this analysis is not applicable because it asserts that Officer Wright did not testify as to the words spoken by his supervisor. But if Officer Wright was not testifying as to what had been communicated to him, his testimony cannot be classified as hearsay. His evidence would simply reflect his understanding of the purpose based upon his own observations and would be admissible. “Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). Whether Officer Wright was testifying as to the purpose communicated to him or as to the purpose he understood from his own observations, his testimony depended solely upon his own credibility.
Therefore, Officer Wright was competent to testify that the deci
Indeed, Baker’s counsel conceded that the state had proven that the roadblock was established by supervisory personnel.
Dissenting Opinion
dissenting.
Under City of Indianapolis v. Edmond
1. By combining (a) the LaFontaine v. State
In roadblock cases, one “constitutional prerequisite” is the State’s burden to show that the roadblock was not set up so as to create an “arbitrary interference” with motorists in violation of the Fourth Amendment.
[t]he decision to implement the roadblock at issue in this case was made by supervisory personnel rather than by the*708 officers in the field, and the operation was carried out pursuant to specific, pre-arranged procedures requiring all passing vehicles to be stopped at the checkpoint and leaving no discretion to the officers in this regard. It is clear that the delay experienced by passing motorists was minimal, lasting only a minute or two unless a violation was noted, and that the operation was well identified as a police checkpoint.15
LaFontaine’s criteria are not “constitutional prerequisites” in and of themselves. Instead, they deal with proof of roadblock procedures in order to establish lack of arbitrary interference.
Edmond, on the other hand, involves a different “constitutional prerequisite,” i.e., the State’s burden to show that the purpose of a roadblock seizure is constitutionally permissible. The proof by which the State demonstrates a constitutional purpose is articulated in Edmond as “we examine the available evidence to determine the primary purpose of the checkpoint program.”
What the majority has done herein, however, is to select one of the LaFontaine procedural criteria that prove nonarbitrary interference, i.e., a supervisor made the decision to set up the roadblock at issue, and merge it with the Edmond “constitutional prerequisite” of permissible purpose. From this amalgamation, the majority concludes that the LaFontaine procedural criteria are a “constitutional prerequisite” which goes not to prove nonarbitrary interference, but to prove permissible purpose. I submit the springboard for that leap is nonexistent.
In fact, Edmond does not “modify” LaFontaine, as the majority asserts. The two cases have little to do with each other, except that both deal with roadblocks. Nonarbitrary interference á la the LaFontaine procedural criteria may be shown, yet a permissible purpose for a roadblock still goes unproved. Likewise, a constitutionally permissible purpose for a roadblock may be shown, while a nonarbitrary roadblock procedure goes unproved. Edmond and LaFontaine involve different constitutional burdens, and compliance with such burdens is proved by different evidence. Neither Edmond nor LaFontaine, nor both read together, creates a new evidentiary “constitutional prereq
Additional guidance is provided in the recent case of Ferguson v. City of Charleston
In an evidentiary application to the case at bar, as well as to other involuntary seizure/roadblock cases, it appears clear that, under Edmond and Ferguson, “all available evidence” demonstrating the programmatic purpose for a roadblock necessarily encompasses the field officer’s understanding of the purpose for the roadblock program and his conduct in the “application and implementation” of the program. The issue is whether the roadblock stop was otherwise implemented and conducted in a manner as to demonstrate that the stop of the vehicle was “reasonable” under the Fourth Amendment.
Further, it would be illogical to find that the supervisor’s primary purpose is a “constitutional prerequisite.” Consider: if a super
2. An officer’s testimony that the purpose for a roadblock was to “check for DUI” is not hearsay. Such testimony is within the officer’s personal knowledge as to a purpose he is effectuating at a roadblock. Such testimony need not go to a supervisor’s purpose for the roadblock since, as discussed in Division 1, the supervisor’s purpose is irrelevant if the effect of the roadblock, i.e., the field officer’s conduct in applying and implementing the roadblock program, demonstrates a constitutionally impermissible purpose.
Further, the officer’s testimony regarding the purpose for the roadblock is not hearsay any more than is an officer’s testimony that the decision to implement the roadblock was made by supervisory personnel.
to detect the low level DUI as far as the actual type of a DUI person on the road that not everybody else is going to see, as far as the people that’s — the low level type of people, where the average officer out on the side of the road could be behind him and not exactly detect him from the way he’s driving, but actually still be considered a less safe driver.30
There is no hearsay issue with regard to Officer Wright’s personal knowledge of the purpose of a roadblock he was executing under orders from his supervisor. Wright was the one actually effectuating the purpose.
I am authorized to state that Presiding Judge Andrews joins in this dissent.
“It goes without saying that our holding today does nothing to alter the constitutional status of the sobriety . . . checkpoints that we approved in [Michigan Dept. of State Police v. Sitz,
Id.
State v. Golden,
See United States v. Martinez-Fuerte,
Edmond, supra at 46.
Holsey v. State,
Id.,
(Emphasis omitted.) Id. at 81-99.
Michigan Dept. of State Police v. Sitz, supra at 450; LaFontaine, supra at 252; State v. Ruiz,
Edmond, supra at 48 (“[T]he purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of the individual officers acting at the scene.”).
“[A] program driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar.” Edmond, supra at 47.
Id. at 46.
LaFontaine, supra at 252 (3) (trooper testified that decision to implement roadblock was made by a State Patrol supervisor); accord, e.g., State v. Dymond,
Burgeson v. State,
Burgeson v. State, supra at 105; Goodman v. State,
Officer Wright could not remember whether Lieutenant Charles or Sergeant Culberson called for the roadblock at issue, but one of the two called for it. See State v. Sherrill,
Trial testimony can be considered on appellate review of the denial of a motion in limine. State v. Brodie,