Appellee Chadrick D. Nash was arrested on October 30, 2004, in connection with the shooting death of Leon Williams which had occurred earlier that day. At 11:35 p.m., Nash was interviewed by an agent of the Georgia Bureau of Investigation and a lieutenant/investigator of the police department of Cairo, Georgia, and made several inculpatory statements. Following his indictment for malice murder, felony murder, and possession of a firearm during the commission of a crime, Nash filed a motion to suppress the custodial statement he had made to the GBI agent and police official the night of his arrest. In lieu of holding a hearing on the motion, the State and appellee agreed to have the trial court view the videotape of the custodial interview. After doing so, the trial court granted the motion to *647 suppress, ruling that the investigators did not terminate the interview upon Nash’s invocation of his Fifth Amendment right to remain silent and his Sixth Amendment right to have counsel present.
The trial court found that Nash, wearing a prison uniform and handcuffs when he was interviewed by the GBI agent and the police official, was in custody when he was questioned, was informed of his rights pursuant to
Miranda v. Arizona,
1. The State’s appeal is proper under OCGA § 5-7-1 (a) (4), which authorizes the State to file a direct appeal from a pretrial order sustaining a motion to suppress evidence illegally seized. See
State v. Henderson,
2. The State contends the trial court erred in suppressing the inculpatory statement because Nash did not invoke his rights to remain silent and to counsel and, even if he did, routine police questioning not related to the case following the invocation of rights is not “custodial interrogation” within the meaning of
Miranda v. Arizona,
supra. When an appellate court reviews a trial court’s grant or denial of a motion to suppress, the trial court’s findings as to disputed facts will be upheld unless clearly erroneous and the trial court’s application of the law to undisputed facts is subject to de novo review.
State v. Ray,
The State argues appellee never invoked his Sixth Amendment right to counsel since he never requested the presence of an attorney, and did not invoke his Fifth Amendment right to remain silent because the State construes appellee’s negative response as “not a refusal to talk but instead is defendant’s attempt to explain to [the GBI agent] that he prefers to talk off the record.” However, the trial court found appellee invoked his right to remain silent at a different point in the questioning — when the videotape showed appellee “clearly shook his head in the negative” (emphasis in trial court’s order) in response to the GBI agent’s clarifying query, “Chad, so you don’t want to talk about it?” which followed appellee’s statement that he wanted “to just sit back and... get his charges... and just goback.” In addition to the videotape, the agent’s decision to write “refused to talk” on the waiver of rights form supports the trial court’s finding that appellee invoked his right to remain silent. Since the videotape shows the trial court correctly noted appellee shook his head in the negative when asked if he wanted to talk about the victim’s death and the questioning agent took appellee’s response to be a refusal to talk about the incident, the trial court’s finding that appellee invoked his right to remain silent is supported by evidence and therefore is not clearly erroneous.
3. The second issue for review is the admissibility of the statements made by appellee following his invocation of his right to remain
*649
silent. “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.’
Michigan v. Mosley,
The State maintains Nash’s responses did not stem from custodial interrogation to which
Miranda
applies, but were to “ ‘routine police “questioning” not related to the investigation of the case nor designed, expected or likely to elicit information relevant to guilt....’ [Cit.]”
Jenkins v. State,
Georgia courts have confined the booking exception to requests for basic biographical data such as the suspect’s name, age, address, educational background, marital status, and other information required to complete an arrest form— Like most federal and state courts, we are unwilling to create a broad exception to the Fifth Amendment for police questions asked during booking “without investigative intent” or pursuant to “administrative procedure” once an accused has invoked his rights.
Pretermitting a question-by-question review to determine whether the GBI agent’s myriad inquiries
2
did or did not request “basic biographical data essential to the booking process” (see
Franks v. State,
supra,
4. Since the trial court correctly ruled that any inculpatory statement made by Nash had to be suppressed since it was made in violation of Nash’s Fifth Amendment right to remain silent, it is not necessary for this Court to address whether the trial court was correct in its determination that the inculpatory statement was obtained in violation of Nash’s Sixth Amendment right to counsel.
5. In its order granting the motion to suppress, the trial court noted that a statement made by the GBI agent “could well be considered to have run afoul of OCGA § 24-3-50 [as a hope of benefit] On appeal, the State takes issue with the evidentiary basis for such a finding. Since the trial court’s suppression of the statement is upheld due to the failure to terminate the interview upon Nash’s invocation of his right to remain silent, and we view the trial court’s remark as an observation rather than a factual finding upon which it based its ruling, we do not address the State’s contention.
Judgment affirmed.
Notes
The agent then asked Nash the number, gender, age, and location of any children he had; where Nash was born; his hair color, height, and weight; the state of his teeth; the source and descriptions of the tattoos covering Nash’s arms, chest, and back; his facial hair; the status of his driver’s license; his marital status; his father’s name; and whether he had siblings. He then told Nash he would be returned to the sheriffs office after Nash signed a sheet containing the information the agent had obtained. The agent then said “That’s the picture your mama gave us when we were looking for you. You did turn yourself in, though? I want to make that part of the record. You did turn yourself in.” Nash responded, ‘Yeah, I could have ran,” and the agent noted Nash had a number of places to which he could have gone had he run. Nash then alluded to reasons why altercations happen, and the agent said, “That’s why I wanted to talk to you. That’s why I wanted to talk to you.” Nash responded, ‘You can talk to me. I told you, you can talk to me now.” Nash noted that statements can be harmful, and the agent told him officers had only one side of the story after talking to a number of persons. Nash then said he wanted the agent and lieutenant to listen to him.
See footnote 1, supra, for the substance of the agent’s questions.
We note further that the appellate record does not contain the sheet of paper on which the GBI agent recorded the information obtained by the questions asked of Nash following his invocation of his right to remain silent. Since Nash was already in prison clothing when questioned and the GBI agent noted Nash was to be returned to the custody of the sheriff at the conclusion of the interview, it is likely Nash had been through the booking procedure prior to the interview at issue, making it unclear what paperwork the agent was generating.