THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, 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/
May 15, 2015
In the Court of Appeals of Georgia
A15A0093. ARMENTROUT v. THE STATE.
DILLARD, Judge.
Renee Armentrout was stopped at a police checkpoint and arrested for driving
under the influence of alcohol. Following a stipulated bench trial, she was convicted
of driving under the influence of alcohol to the extent it was less safe for her to do so
(DUI less safe) and driving under the influence of alcohol with an excessive blood-
alcohol concentration (DUI per se). On appeal, Armentrout contends that the trial
court erred in denying her motions to suppress evidence recovered from the traffic
stop and the results of the State-administered chemical test, arguing that the
checkpoint was unlawful and the police officer’s reading of the implied-consent
warning was misleading. For the reasons set forth infra, we agree that the checkpoint
was unlawful and, thus, reverse Armentrout’s convictions.
Viewed in the light most favorable to the trial court’s findings and judgment,1
the evidence shows that on June 29, 2011, Sergeant Ronnie Young—an officer in the
Johns Creek Police Department (who supervised day-to-day traffic-enforcement
operations)—submitted a written proposal to his superior officer to establish a traffic
task force, which would conduct several traffic-safety checkpoints during the
upcoming Fourth of July weekend. In addition to specifying the times and locations
for the checkpoints, the proposal noted that the goal of the task force was to
“establish safety checkpoints to enhance safe travel” through the city and that the
“primary purpose of the checkpoints [was] to conduct a check of driver’s licenses,
and to identify drivers who are under the influence of drugs and/or alcohol.” Young’s
superior approved the proposal, and Johns Creek police officers (including Sergeant
Young) began implementing the checkpoints two days later.
At approximately 6:30 p.m. on July 4, 2011, Armentrout stopped at the traffic
checkpoint that officers had established at the intersection of Bell Road and Cauley
Creek Drive. Upon approaching Armentrout’s vehicle and requesting her driver’s
license, Sergeant Young smelled alcohol and noticed that Armentrout’s eyes were
watery. Additionally, Armentrout spoke with a slight slur and admitted that she had
1
See Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011).
2
been drinking “a little bit.” Then, after administering an alco-sensor breath test
(which returned a positive result), Sergeant Young asked another officer to have
Armentrout perform field-sobriety tests. The second officer did so, and the tests
indicated that Armentrout was indeed impaired. Consequently, the officer arrested
Armentrout, read her the implied-consent notice,2 and asked if she would consent to
a blood-alcohol test. When Armentrout initially asked what would happen if she
refused, the officer read the relevant part of the implied-consent notice to her again.
Armentrout then consented to testing, which showed that her blood-alcohol
concentration exceeded the legal limit.
The State charged Armentrout, via accusation, with one count of driving under
the influence of alcohol to the extent that it was less safe for her to do so (DUI less
safe)3 and one count of driving under the influence of alcohol with an excessive
blood-alcohol concentration (DUI per se).4 Shortly thereafter, Armentrout filed a
motion to suppress the evidence garnered as a result of the traffic stop, arguing that
the checkpoint was unlawful, as well as a separate motion in limine to exclude the
2
See OCGA § 40-5-67.1 (b) (2).
3
See OCGA § 40-6-391 (a) (1).
4
See OCGA § 40-6-391 (a) (5).
3
blood-alcohol test results, arguing that the officer’s re-reading of the implied-consent
notice was misleading. But after holding a combined evidentiary hearing on these
issues, the trial court denied both of her motions. Subsequently, Armentrout agreed
to a stipulated bench trial, which concluded with the trial court finding her guilty on
both the DUI per se and DUI less safe charges. This appeal follows.
At the outset, we note that when the facts material to a motion to suppress are
disputed, “it is generally for the trial judge to resolve those disputes and determine
the material facts.”5 This principle is well established, and our Supreme Court has
“identified three corollaries of the principle, which limit the scope of review in
appeals from a grant or denial of a motion to suppress in which the trial court has
made express findings of disputed facts.”6 An appellate court generally must (1)
accept a trial court’s findings unless they are clearly erroneous,7 (2) construe the
evidentiary record in the light most favorable to the factual findings and judgment of
5
Hughes v. State, ___ Ga. ___ Slip op. at 5 (1) (Case No. S14G0622; decided
March 16, 2015); see also Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).
6
Hughes, Slip op. at 5 (1).
7
See id. at 5-6 (1); State v. Hargis, 294 Ga. 818, 823 n. 12 (2) (756 SE2d 529)
(2014); Hammont, 309 Ga. App. at 396.
4
the trial court,8 and (3) limit its consideration of the disputed facts to those expressly
found by the trial court.9 But we review de novo the trial court’s “application of law
to the undisputed facts.”10 With these guiding principles in mind, we turn now to
Armentrout’s claims of error.
1. Armentrout contends that the trial court erred in denying her motion to
suppress, arguing that the checkpoint was unlawful because the State failed to prove
that the Johns Creek Police Department’s overall checkpoint program had a legitimate
primary purpose. We agree.
The Supreme Court of the United States has interpreted the Fourth and Fifth
Amendments11 to permit police roadblocks or checkpoints, holding that although the
stops need not be based on probable cause, they must still be conducted in a manner
8
See Hughes, Slip op. at 6 (1); Brown v. State, 293 Ga. 787, 803 (3) (b) (2)
(750 SE2d 148) (2013); Hammont, 309 Ga. App. at 396.
9
See Hughes, Slip op. at 6 (1); Miller v. State, 288 Ga. 286, 287 (1) (702 SE2d
888) (2010).
10
State v. Conner, 322 Ga. App. 636, 637 (745 SE2d 837) (2013); see also
Young v. State, 310 Ga. App. 270, 271 (712 SE2d 652) (2011).
11
See U.S. Const. amend. IV & V.
5
making them reasonable under the Fourth Amendment.12 And when a defendant
challenges his initial stop at a police checkpoint by way of a motion to suppress, the
State “bears the burden of proving that the seizure was constitutional.”13
The requirements for determining the constitutionality and lawfulness of a
police checkpoint under Georgia law were set forth initially in LaFontaine v. State,14
which held that
[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 is sufficient to qualify him to make an initial
determination as to which motorists should be given field tests for
intoxication.15
12
See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 450 (110 SCt. 2481,
110 LE2d 412) (1990).
13
Williams v. State, 293 Ga. 883, 886 (2) (750 SE2d 355) (2013) (punctuation
omitted); accord Brown v. State, 293 Ga. 787, 799 (750 SE2d 148) (2013); see also
OCGA § 17-5-30 (b).
14
269 Ga. 251 (497 SE2d 367) (1998).
15
Id. at 253 (3).
6
Importantly, these factors are not general guidelines, but are instead “minimum
constitutional prerequisites.”16
Two years after the Supreme Court of Georgia issued its opinion in
LaFontaine, the Supreme Court of the United States, in City of Indianapolis v.
Edmond,17 supplemented LaFontaine’s test for evaluating the implementation and
operation of the particular checkpoint with “a distinct requirement focused on the law
enforcement agency’s checkpoint program.”18 Analyzing that decision, our Supreme
Court recently noted that “LaFontaine’s requirement that the decision to implement
a particular roadblock be made by ‘supervisory personnel’ is distinct from Edmond’s
requirement that the roadblock program have a primary purpose other than the general
interest in crime control.”19 Thus, at a minimum, the State must show that
16
State v. Conner, 322 Ga. App. 636, 638 (745 SE2d 837) (2013) (punctuation
omitted).
17
531 U.S. 32 (121 SCt. 447, 148 LE2d 333) (2000).
18
Williams, 293 Ga. at 891 (3) (b); accord Brown v. State, 293 Ga. at 798-99
(2) (e); see also Edmond, 531 U.S. at 48 (III) (holding that to comply with the Fourth
Amendment, a checkpoint program must have, in addition to safeguards on the
implementation and operation of the checkpoints, a primary purpose other than “the
general interest in crime control”).
19
Williams, 293 Ga. at 888 (3); accord Brown, 293 Ga. at 796.
7
the law enforcement agency’s checkpoint program had an appropriate
primary purpose other than ordinary crime control—a purpose examined
at that 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.20
Here, Sergeant Young testified that although he would submit checkpoint
proposals, including the checkpoint at issue, to a superior officer, he generally had
supervisory responsibilities with regard to implementing checkpoints. He further
testified that the proposal for this particular task force and series of checkpoints was
submitted and approved several days before implementation. Sergeant Young also
stated that the checkpoint stopped all vehicles, was well-identified, was conducted
by well-trained officers, and only minimally delayed motorists. In addition, as noted
supra, the State introduced the proposal submitted by Sergeant Young, which stated
that the goal of the July 4th Task Force was “to establish safety checkpoints to
enhance safe travel” through the city and that the “primary purpose of the checkpoints
[was] to conduct a check of driver’s licenses, and to identify drivers who are under
20
Brown, 293 Ga. at 799 (2) (f) (emphasis supplied); see Edmond, 531 U.S. at
48 (III).
8
the influence of drugs and/or alcohol.” And during the hearing, Sergeant Young
reiterated that this was indeed the checkpoint’s primary purpose.
Nevertheless, although the checkpoint implemented by Sergeant Young and the
other Johns Creek police officers may have met the requirements mandated by
LaFontaine, the State failed to prove that the checkpoint program had an appropriate
primary purpose. As noted supra, the State presented evidence that this checkpoint
had a lawful purpose. However, a finding that a particular checkpoint has a primary
purpose other than ordinary crime control is “not enough to satisfy the Edmond
requirement.”21 Indeed, Edmond requires “an examination of the policy purpose of
the checkpoints, viewed at the programmatic level, to ensure that an agency’s
checkpoints are established primarily for a lawful and focused purpose like traffic
safety rather than to detect evidence of ordinary criminal wrongdoing.”22 And here,
there was no testimony nor any written evidence admitted regarding the Johns Creek
Police Department’s checkpoint policy or program as a whole. We are, therefore,
constrained to conclude that the checkpoint at which Armentrout was stopped
21
Williams, 293 Ga. at 891 (3) (b); see also Brown, 293 Ga. at 796 (2) (d).
22
Williams, 293 Ga. at 891 (3) (b) (emphasis supplied); see also Brown, 293
Ga. at 796 (2) (d).
9
violated the Fourth Amendment.23 Accordingly, the trial court erred by denying
Armentrout’s motion to suppress.
2. Given our holding in Division 1, we need not address Armentrout’s
remaining claims of error.
Judgment reversed. Ellington, P. J., and McFadden, J., concur.
23
See Williams, 293 Ga. at 892-93 (3) (b) (reversing trial court’s denial of
defendant’s motion to suppress because State failed to make necessary showing that
county sheriff’s office’s checkpoint program was properly limited to a lawful and
focused purpose like traffic safety, and, therefore, challenged roadblock was
unconstitutional); Charales v. State, 329 Ga. App. 533, 536 (1) (765 SE2d 701)
(2014) (reversing trial court’s denial of defendant’s motion to suppress because, even
though specific checkpoint at issue may have been implemented for a proper purpose,
the State failed to present any evidence that Atlanta Police Department’s checkpoint
program as a whole had an appropriate primary purpose).
10