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State v. Culler

Court of Appeals of Georgia, Third Division

June 25, 2019

THE STATE
v.
CULLER.

          DILLARD, C. J., GOBEIL and HODGES, JJ.

          Gobeil, Judge.

         In this DUI case, the State appeals from an order of the Bibb County State Court finding that a law enforcement officer lacked probable cause to arrest Antonio Mikeal-Austin Culler and granting Culler's motion to suppress the evidence resulting from that arrest. The State contends that the trial court erred when, in assessing probable cause, it: (1) failed to consider the totality of the circumstances; and (2) gave no weight to the results of a field sobriety test administered to Culler. For reasons explained more fully below, we vacate the trial court's ruling and remand for further proceedings consistent with this opinion.

         In a hearing on a motion to suppress, the trial court sits as the trier of fact and its findings are analogous to a jury verdict. Watts v. State, 334 Ga.App. 770, 771 (780 S.E.2d 431) (2015). Accordingly, we defer to the trial court's credibility determinations and will not disturb its factual findings in the absence of clear error. Id. And "[w]hen reviewing the grant or denial of a motion to suppress, an appellate court must construe the evidentiary record in the light most favorable to the trial court's factual findings and judgment." Caffee v. State, 303 Ga. 557, 557 (814 S.E.2d 386) (2018). Additionally, as a general rule, appellate courts must limit their "consideration of the disputed facts to those expressly found by the trial court." Id. (citation and punctuation omitted). See also Hughes v. State, 296 Ga. 744, 746 (1) (770 S.E.2d 636) (2015) (on an appeal from the grant or denial of a motion to suppress, appellate courts must "focus on the facts found by the trial court in its order") (citation, punctuation, and emphasis omitted). "An appellate court may, however, consider facts that definitively can be ascertained exclusively by reference to evidence that is uncontradicted and presents no questions of credibility, such as facts indisputably discernible from a videotape." Caffee, 303 Ga. at 559 (1) (citation and punctuation omitted). Finally, although we defer to the trial court's fact-finding, we owe no deference to the trial court's legal conclusions. Hughes, 296 Ga. at 750 (2). Instead, we independently apply the law to the facts as found by the trial court. Id.

         Viewed in the light most favorable to the trial court's judgment, the record shows that at approximately 2:30 a.m. on November 25, 2017, Officer Thomas Burns of the Georgia State Patrol observed a Nissan Murano driving in downtown Macon without its headlights illuminated. Based on the lack of headlights, Burns conducted a traffic stop of the vehicle, which was driven by Culler. The traffic stop, in turn, led to Culler's arrest for DUI. Following his arrest, and after being read Georgia's implied consent notice, Culler agreed to provide a breath sample, which was "positive."[1]

         Culler was charged by accusation with a single count each of DUI per se, [2] DUI less safe, [3] and driving without headlights. Prior to trial, Culler filed a motion to suppress the results of his breath test, asserting that the officer lacked probable cause to arrest him and therefore the evidence was obtained illegally. The trial court held a hearing on the motion to suppress, at which the State presented the testimony of the arresting officer and the video recording of the traffic stop.[4]

         The video shows that once the officer initiated the traffic stop, Culler responded by immediately pulling the car off of the roadway and into what appeared to be an adjacent parking lot, out of the way of traffic. Culler exited the vehicle and waited for the officer to approach him. Culler provided Burns with his driver's license and responded to Burns's questions. According to Burns, during this exchange, the officer noticed that Culler's eyes appeared bloodshot and watery and his speech was slurred. Burns also detected a "strong odor" of alcohol emanating from Culler's person. Based on these observations, Burns asked Culler how much alcohol he had consumed that evening. Culler initially responded, "not that much," and then clarified that he had consumed 2 to 3 mixed drinks over the course of the evening, and that he had last consumed alcohol approximately 40 minutes earlier. Burns then asked Culler if he would be willing to submit to field sobriety tests, and Culler agreed. The officer performed three field sobriety tests on Culler: the walk-and-turn, the one-leg stand, and the horizontal gaze nystagmus ("HGN").

         According to Burns, he performed these standardized tests in accordance with his training.[5] Two of the tests (the HGN and the one-leg stand) were performed in view of the patrol car's camera and were captured on the video recording of the traffic stop. Burns explained, however, that because of uneven pavement in front of the patrol car, he had Culler perform the walk-and-turn test in a different part of the parking area, out of the camera's range.[6] Burns testified that Culler tested positive on six out of six clues (three in each eye) on the HGN test and on one clue on the walk-and-turn test.[7] Both Burns's testimony and the video of the traffic stop show Culler exhibited no clues on the one-leg stand test. Indeed, the video shows that Culler was able to stand straight, arms at his side, with one leg raised, and while counting out loud for approximately 23 seconds, during which time he exhibited no problems with his balance, coordination, or speech. He ceased performing the test only when Burns directed him to do so.

         After Culler completed the field sobriety tests, Burns used the Alco-Sensor, which gave a positive reading for the presence of alcohol on Culler's breath. Burns then placed Culler under arrest for DUI. Burns testified that he relied on six facts to find probable cause to arrest Culler. These facts included: the odor of alcohol coming from Culler's person; Culler's bloodshot and watery eyes; Culler's slurred speech; the fact that Culler was positive for six out of six clues on the HGN test; the fact that Culler was positive on one clue on the walk-and-turn test; and the results of the Alco-Sensor, showing the presence of alcohol on Culler's breath.

         On cross-examination, Burns acknowledged that Culler was cooperative, communicated clearly, and was easy to understand throughout the traffic stop. Burns further testified that Culler responded appropriately to all questions and directions and exhibited no problems with his balance. Additionally, Burns stated that he did not observe Culler driving erratically, and that the traffic stop was based solely on the lack of headlights, and not on Culler's operation of the vehicle.

         Based on this evidence and its independent review of the video recording of the traffic stop, the trial court granted the motion to suppress. In doing so the court acknowledged the six facts on which Burns had relied to find probable cause for Culler's arrest, as well as the evidence showing that Culler was operating the car without headlights and that he had admitted consuming alcohol approximately 40 minutes before driving the car. The trial court found that this evidence provided the officer with a reasonable basis for believing that Culler was operating the car after having consumed alcohol, but noted that the relevant question for probable cause purposes was whether Burns had a reasonable basis for believing that Culler was impaired.

         In conducting its probable cause analysis, the trial court declined to give any weight to Culler's failure to turn on his headlights, noting that the video showed that the streets were well lit, such that the absence of headlights would not have been readily apparent to a driver. Additionally, the court rejected Burns's testimony that Culler was slurring his speech, explaining that the video showed the exact opposite. Specifically, the court found that the video showed that Culler "spoke very clearly," "asked appropriate questions to clarify" the officer's directions to him, and "provided prompt, clear responses when questioned." The trial court further found that Culler exhibited no outward signs of being an impaired driver, observing that Culler operated the vehicle safely, using "his blinker for both turns shown in the video." The court also noted that Culler "stopped promptly when blue[-] lighted and parked in a safe area off the street. He stepped out of his vehicle immediately. He did not sway or stumble. He was cooperative and appropriately responsive in all his interactions with [the officer]."

         The trial court also rejected the results of the HGN test, stating that "[t]he video shows that [the officer] did not perform the HGN test substantially in accordance with scientific procedures."[8] Thus, the court concluded that the only credible evidence that Culler was impaired were the presence of alcohol and Culler's one positive clue on the walk-and-turn test. And in light of the fact that Culler exhibited no clues on the one-leg stand test and that he otherwise did not appear to be impaired, the court found that the evidence, viewed as a whole, did not support a reasonable probability that Culler was driving while impaired. The State now appeals from the trial court's order.

         Before addressing the State's enumerated errors, we note the general legal principles that apply to the question of whether Burns had probable cause to arrest Culler for DUI less safe.[9] Probable cause for an arrest exists where the objective facts known to the officer, taken together with the circumstances in which those facts exist, establish a probability that the suspect is or has been engaged in criminal activity. Campbell v. State, 313 Ga.App. 436, 438 (721 S.E.2d 649) (2011). See also Caffee, 303 Ga. at 561 (2) ("[a] probable cause inquiry . . . is a flexible and practical assessment of probabilities given a particular factual context") (citation and punctuation omitted). A probability is "less than a certainty but more than a mere suspicion or possibility." Jaffray v. State, 306 Ga.App. 469, 473 (3) (702 S.E.2d 742) (2010). The standard is an objective one, meaning that the relevant inquiry is whether the known facts and circumstances would have led a reasonable officer to conclude that the suspect was engaged in criminal activity. Hughes, 296 Ga. at 749 (2) (because the standard "is an objective one . . . the subjective thinking of the actual officers in a particular case is not important"). And in undertaking a probable cause analysis, a court must consider the facts and circumstances "altogether, for it is the totality of those facts and circumstances that matters, not any one fact or circumstance standing alone." Id. (Citation omitted). See also Campbell, 313 Ga.App. at 438 ("[p]robable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances surrounding a transaction") (citation and punctuation omitted). ...


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