Case Information
*1 THIRD DIVISION ELLINGTON, P. J., ANDREWS and RICKMAN, 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
April 11, 2017 In the Court of Appeals of Georgia
A17A0534. MCCOY v. THE STATE. JE-016C
E LLINGTON , Presiding Judge.
Following a bench trial, the State Court of Henry County found Latisha McCoy guilty beyond a reasonable doubt of driving under the influence of marijuana to the extent that it was less safe to drive, OCGA § 40-6-391 (a) (2). McCoy appeals, contending that the trial court erred in denying her motion to suppress evidence seized during an allegedly unconstitutional roadblock. For the reasons explained below, we affirm.
When a criminal defendant moves to suppress evidence on the basis that it was
obtained as a result of an illegal warrantless search, “the burden of proving that the
search and seizure were lawful shall be on the state.” OCGA § 17-5-30 (b). “Hence,
it is the state’s burden to establish the existence of circumstances constituting an
*2
exception to the general prohibition against warrantless searches and seizures.”
(Punctuation and footnote omitted.)
State v. Castillo
,
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 his 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 it. 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.
(Citation and punctuation omitted.)
Miller v. State
,
Where a defendant moves to suppress evidence seized at a police checkpoint or roadblock, the State, to carry its burden of proving that the seizure was constitutional,
must show that the law enforcement agency’s checkpoint program had an appropriate primary purpose other than ordinary crime control – a purpose examined at [the] programmatic level, rather than by trying to determine the motives of the supervisor who implemented and the officers who conducted the particular checkpoint at issue. The State must also prove that the particular checkpoint at which the defendant was stopped was properly implemented and operated – that the five requirements enumerated in LaFontaine [ ] were met. LaFontaine requires the State to show that: [1] the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; [2] all vehicles were stopped as opposed to random vehicle stops; [3] the delay to motorists was minimal; [4] the roadblock operation was well identified as a police checkpoint; and [5] the “screening” officer’s training and experience was sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.
*4
(Citations and punctuation omitted.)
Williams v. State
,
The record shows the following undisputed facts. On July 19, 2015, McCoy stopped at a Henry County Police Department roadblock on the southbound exit ramp off of I-75 at Exit 228. After speaking with McCoy, the screening officer suspected that she was impaired from smoking marijuana. Another officer, who was part of a “H.E.A.T. unit,” took over the investigation and ultimately arrested McCoy for DUI.
The screening officer did not testify at the hearing on McCoy’s motion to suppress. The only evidence regarding the screening officer’s training and experience was the testimony of the police sergeant who authorized the roadblock. When asked what training the screening officers who were involved in the roadblock had “to make sure that they could determine that drivers need to be given field sobriety *6 evaluations,” the sergeant responded that the screening officers “go through a certification during their police academy, the Georgia POST.”
The trial court denied McCoy’s motion to suppress. On the issue of the screening officer’s training and experience, the trial court found that
all officers present were [POST] certified, and therefore had authority to be present at the roadblock and screen drivers. This certification and training allows the officers to judge which drivers may or may not be under the influence of alcohol and which need to be further investigated.
At a hearing on McCoy’s motion for reconsideration of the suppression order, the trial court elaborated:
[T]here’s some things that I know from being on the bench for a lot of years and I think it’s well known at least in the legal community by the lawyers and the judges and the prosecutors and defense lawyers and everybody that if an officer holds POST certification then he or she is authorized to make arrests. . . . POST certification gives you the ability to put a badge and gun on, drive a patrol car, pull people over and arrest them. So I can’t see how POST certification is not sufficient for a screening officer. . . . [T]he POST certification authorizes [an officer] I think to be a screening officer just by that[.] . . . I can’t imagine that a POST certified officer cannot act as a screening officer based on the testimony that I’ve heard, the experience that I’ve had with these kind of cases[.]
McCoy contends that, “[i]f POST Certification, without more, was sufficient
to satisfy the fifth
LaFontaine
requirement that the screening officer’s training and
experience be sufficient to qualify him to make an initial determination as to which
motorists should be given field tests for intoxication, such a requirement would be
superfluous and completely unnecessary since all police officers on the streets and
highways of this State must be POST Certified.” We note that the Supreme Court of
Georgia did not provide any express guidance in
LaFontaine
regarding how to
determine whether a screening officer has the requisite training and experience. 269
Ga. at 253 (3). It is instructive, however, to consider the context in which the
Supreme Court incorporated the final factor in the list of “specific factors to
determine when a roadblock is satisfactory.” Id. For all of the factors, the Supreme
*8
Court cited this Court’s decision in
State v. Golden
,
notice “is not evidence, but takes the place of evidence. By taking judicial notice of a fact [that is] commonly known, the court avoids the needless formality of introducing evidence to prove an incontestable issue.”) (punctuation and footnotes omitted); Paul S. Milich, Ga. Rules of Evidence, § 4:2 (database updated October 2016) (“The purpose of allowing judicial notice of adjudicative facts is economy. If the fact in question is such a matter of public knowledge that its truth cannot reasonably be questioned, it wastes valuable court time to require formal proof of such a fact.”) (footnotes omitted); OCGA § 24-2-201 (b) (“A judicially noticed [adjudicative] fact shall be a fact which is not subject to reasonable dispute in that it is either: (1) Generally known within the territorial jurisdiction of the court; or (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”).
an individual’s sobriety.”) (citation omitted); OCGA § 35-8-1 et seq. (Georgia Peace Officer Standards and Training Act). Given that any person may give an opinion, on the basis of personal observation of another person on a given occasion, that the other person did or did not appear to be intoxicated, and given that any POST-certified officer will have had some training in law enforcement activities that concern impaired drivers, we conclude based on the foregoing authorities that the trial court in this case did not err in denying McCoy’s motion to suppress based on its finding that the POST-certified screening officer had training and experience sufficient to enable him to make the initial determination as to which motorists should be given the field tests for intoxication. [10]
Judgment affirmed. Andrews and Rickman, JJ., concur .
Notes
[1]
LaFontaine v. State
,
[2] See also
Brown v. State
,
[3]
Armentrout v. State
,
[4]
City of Indianapolis v. Edmond
,
[5]
Williams v. State
,
[6]
Michigan Dept. of State Police v. Sitz
,
[7] See
Knight v. State
, 271 Ga. 557, 562 (6) (521 SE2d 819) (1999) (“Any
individual may testify, on the basis of personal observation, about whether another
person did or did not appear to be intoxicated on a given occasion.”) (citation
omitted);
Jones v. State
,
[8]
Dagne v. Schroeder
,
[10]
Hurt v. State
,