Kendrick v. the State

THIRD DIVISION
DILLARD, J.
MCFADDEN and PETERSON, 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

February 23, 2016

In the Court of Appeals of Georgia
A15A2111. KENDRICK v. THE STATE. PE-028C

PETERSON, Judge.

In this interlocutory appeal in a DUI prosecution, Lisa Kendrick argues that the

trial court erred in denying her motion to suppress breathalyzer evidence showing she

had a blood alcohol content of .15 because she did not freely and voluntarily consent

to the breath test under our Supreme Court’s recent precedent in Williams v. State,

296 Ga. 817 (771 SE2d 373) (2015). Because we find the trial court properly

considered the totality of the circumstances in finding that Kendrick consented to her

breath test, we affirm.

“On appeal from a ruling on a motion to suppress, we construe the evidence

most favorably to affirming the trial court’s factual findings and judgment.” See

Brooks v. State, 285 Ga. App. 624, 626 (647 SE2d 328) (2007). So viewed, the facts
show that on May 24, 2014, an officer pulled Kendrick over for failing to stop at a

stop sign and maintain her lane. The officer conducted several field sobriety tests on

Kendrick. Although Kendrick generally performed well on most of the tests, her

performance on one test1 indicated a possibility of intoxication. The officer placed

Kendrick under arrest and handcuffed her. The officer then read Kendrick the

standard implied consent notice for suspects 21 or over from a prepared card, which

stated:

Georgia law requires you to submit to state administered chemical test
of your blood, breath, urine, or other bodily substances for the purpose
of determining if you are under the influence of alcohol or drugs. If you
refuse this testing, your Georgia driver’s license or privilege to drive on
the highways of this state will be suspended for a minimum period of
one year. Your refusal to submit to the required testing may be offered
into evidence against you at trial. If you submit to testing and the results
indicate an alcohol concentration of 0.08 grams or more, your Georgia
driver’s license or privilege to drive on the highways of this state may
be suspended for a minimum period of one year. After first submitting
to the required state test, you are entitled to additional chemical tests of

1
Video evidence from the traffic stop shows that Kendrick appears to have also
blown a positive preliminary alcohol screen, though this fact was not mentioned by
either of the parties below or on appeal. Although the video in which it appears is part
of the record on appeal, we decline to afford it weight in the absence of argument
from the parties as to its significance. Our analysis would be no different, however,
if we did consider it.

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 the blood, breath, urine, or other bodily substances at your own expense
and from qualified personnel of your own choosing. Will you submit to
the state administered chemical test of your breath under the implied
consent law?2

Kendrick replied “yes” and made no other comments, did not ask any questions about

the implied consent notice or chemical breath test, and did not request an attorney.

Kendrick was subsequently transported to jail and approximately twenty minutes later

provided a breath sample for testing. Kendrick’s breath test showed that her blood

alcohol content was .15, nearly twice the legal limit.

Kendrick filed a motion to suppress challenging her arrest and all evidence

obtained against her, asserting that (1) the officer lacked probable cause for the stop,

(2) the officer exceeded the duration, intent, and scope of the initial stop, (3) she was

not read her Miranda rights, and (4) she did not freely and voluntarily consent to a

test of her breath as required under Williams. Following an evidentiary hearing

focused only on the Williams issue, and at which Kendrick and the arresting and

testing officers testified, the trial court denied Kendrick’s motion to suppress. In

particular, the trial court found that “under a totality of the circumstances,” Kendrick

2
The specific language of this notice appears verbatim in OCGA § 40-5-
67.1(b)(2).

3
voluntarily consented to giving a breath sample. The trial court credited testimony by

officers that Kendrick, in the trial court’s words, “appeared coherent, her language

and speech patterns were normal, . . . she appeared to understand what was going

on[,]” and did not otherwise appear confused. The trial court also viewed the video

of the arrest, including where the officer read Kendrick the implied consent notice,

and noted that Kendrick exhibited “no slurred speech, no odd behavior,” “rational and

good communication skills with the officers[,]” no “extreme intoxication[,]” and that

the officer did not point any weapon at Kendrick or use force, threats, or promises,

which the court said was consistent with witness testimony. Similarly, there was no

testimony that any force or threats were used in the testing room.

On appeal, Kendrick challenges the denial of her motion to suppress, focusing

her argument on her claim that she did not consent to the breath test. She asserts that

the trial court erred by finding that Kendrick freely and voluntarily consented to a test

of her breath under the Georgia Supreme Court’s recent decision in Williams. Indeed,

the parties appear to agree on all the relevant facts and evidence, and are in accord

that the sole issue before this court to resolve is whether Kendrick freely and

voluntarily consented to a breath test as required under Williams. “Consequently, we

review the trial court’s application of the law to the facts de novo, examining the

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entire record and making an independent determination of the ultimate issue of

voluntariness.” State v. Fulghum, 261 Ga. App. 594, 594 (1) (583 SE2d 278) (2003)

(citation omitted).

The Fourth Amendment of the United States Constitution and Article I, Section

I, Paragraph XIII of the Georgia Constitution both protect an individual’s right to be

free of unreasonable searches and seizures, and apply with equal force to the

compelled withdrawal of blood, breath, and other bodily substances. See Williams,

296 Ga. at 819; Cooper v. State, 277 Ga. 282, 285 (587 SE2d 605) (2003); Lutz v.

State, 274 Ga. 71, 72 (1) (548 SE2d 323) (2001); State v. Johnston, 249 Ga. 413, 414

(2) (291 SE2d 543) (1982); Davis v. State, 332 Ga. App. 488, 490 (773 SE2d 442)

(2015). Because a breath test is a search within the meaning of the Fourth

Amendment, absent a warrant, the State must show that it falls into one of the

“specifically established and well-delineated exceptions” to the warrant requirement.

Williams, 296 Ga. at 819.

Consent is a valid basis for a warrantless search where it is given freely and

voluntarily, and the State does not argue that any other exception might apply. Id. at

821. Therefore, the only question in regard to the validity of the search is whether the

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State met its burden of proving that Kendrick actually consented “freely and

voluntarily under the totality of the circumstances.” Id.

Historically, we considered a defendant’s affirmative response to the reading

of the implied consent notice as sufficient to allow a search of his or her bodily fluids

without further inquiry into the validity of the defendant’s consent. See, e.g.,

Meiklejohn v. State, 281 Ga. App. 712, 714 (637 SE2d 117) (2006); State v. Lewis,

233 Ga. App. 390, 392 (1) (504 SE2d 242) (1998). However, Williams rejected this

per se rule automatically equating an affirmative response to the implied consent

notice with actual consent to a search within the meaning of the Fourth Amendment.

Williams, 296 Ga. at 821-22. Instead, courts must now conduct a case-by-case

analysis, considering the totality of the circumstances. Id.

A “totality of the circumstances” analysis is not new to Georgia courts. “A

consent to search will normally be held voluntary if the totality of the circumstances

fails to show that the officers used fear, intimidation, threat of physical punishment,

or lengthy detention to obtain the consent.” Cuaresma v. State, 292 Ga. App. 43, 47

(2) (663 SE2d 396) (2008). Nor may consent be “coerced, by explicit or implicit

means, by implied threat or covert force.” Schneckloth v. Bustamonte, 412 U.S. 218,

228 (II) (B) (93 SCt. 2041, 36 LEd 2d 854) (1973). Other factors to be considered are

6
“prolonged questioning; . . . the accused’s age, level of education, intelligence . . . and

advisement of constitutional rights; and the psychological impact of these factors on

the accused.” State v. Austin, 310 Ga. App. 814, 818 (1) (714 SE2d 671) (2011).

Moreover, “[w]hile knowledge of the right to refuse consent is one factor to be taken

into account, the government need not establish such knowledge as the sine qua non

of an effective consent.” Schneckloth, 412 U.S. at 227 (II) (B). Instead, the court

should consider whether “a reasonable person would feel free to decline the officers’

request to search or otherwise terminate the encounter.” Austin, 310 Ga. App. at 820

(1) (citing Johnson v. State, 297 Ga. App. 847, 849 (678 SE2d 539) (2009)); State v.

Durrence, 295 Ga. App. 216, 218 (671 SE2d 261) (2008). “Mere acquiescence to the

authority asserted by a police officer cannot substitute for free consent.” State v.

Jourdan, 264 Ga. App. 118, 121 (1) (589 SE2d 682) (2003) (internal citation

omitted); Hollenback v. State, 289 Ga. App. 516, 519 (657 SE2d 884) (2008).

In this case, the evidence does not show that the officers “used fear,

intimidation, threat of physical punishment, or lengthy detention to obtain the

consent.” Cuaresma, 292 Ga. App. at 47 (2). Both the officer and Kendrick conducted

themselves calmly. Nor does Kendrick argue that youth, lack of education, or low

intelligence somehow negated the voluntariness of her consent. Rather, the crux of

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her argument appears to be that she felt coerced into giving consent because she was

not informed of her constitutional right against unreasonable searches and seizures

and because the language of the implied consent notice, when read to her while she

was arrested and in handcuffs, made her feel as though she did not have a choice but

to acquiesce.3

The Supreme Court of the United States and other courts have rejected

invitations to create a duty to inform suspects of their constitutional right against

unreasonable searches and seizures, and we will not depart from their well-worn path.

See Schneckloth, 412 U.S. at 231 (II) (B) (such a suggestion “has been almost

3
Kendrick’s brief on appeal could be construed as also challenging the implied
consent statute as unconstitutional in that the language the statute requires officers
to read is inherently coercive. If this appeal presented such a question, we would lack
jurisdiction and would be required to transfer the case to the Supreme Court. It does
not, however, because Kendrick did not directly challenge the constitutionality of the
statute below and the trial court did not rule on it. Therefore, we can neither transfer
the matter nor rule on constitutionality of the statute. City of Decatur v. DeKalb
County, 284 Ga. 434, 436-38 (1), (2) (668 SE2d 247) (2008). We also observe that
our Supreme Court has previously upheld the implied consent statute against a
challenge much like Kendrick’s. See Klink v. State, 272 Ga. 605, 606 (1) (533 SE2d
92) (2000). Although subsequent development of the law may have substantially
eroded Klink’s analytical foundation, compare Klink, 272 Ga. at 606 (holding based
in part on observation that “[t]he right to refuse to submit to state administered testing
is not a constitutional right, but one created by the legislature”) with Williams, 296
Ga. at 819-20 (holding Fourth Amendment requires actual consent in absence of
warrant or other exceptions to warrant requirement), it remains binding on us until
overturned by the Supreme Court.

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universally repudiated by both federal and state courts, and we think, rightly so”)

(footnotes and citations omitted). Moreover, in analyzing other challenges regarding

implied consent, we have found circumstances under which officers merely inform

a suspect of “the permissible range of sanctions that the state may ultimately be

authorized to impose” under the implied consent statute, as appears to have been done

here, not to constitute coercion. See Gutierrez v. State, 228 Ga. App. 458, 460 (2)

(491 SE2d 898) (1997) (citation and internal punctuation omitted). Nor does the fact

that Kendrick was in handcuffs negate her ability to give consent. See Silverio v.

State, 306 Ga. App. 438, 446 (3) (702 SE2d 717) (2010).

We are unpersuaded by the cases Kendrick cites in support of her argument that

her affirmative response to the implied consent notice was merely an acquiescence

to authority. In each of those cases, the suspects were not presented with a choice, and

the officers made clear that the “search” was going to occur regardless of their

consent. See, e.g., Hollenback, 289 Ga. App. at 519 (officer informed suspect he was

going to search vehicle before she would be allowed to drive it away); Cuaresma, 292

Ga. App. at 44, 47 (2) (officer told suspect to either consent or he would call a dog,

and generally behaved in an intimidating, harassing, and threatening manner);

Fulghum, 261 Ga. App. at 595 (2) (officer told defendant that he needed to enter and

9
search the residence); State v. Harris, 236 Ga. App. 525, 529 (2) (b) (ii) (513 SE2d

1) (1999) (when officer asked suspect “would she empty the purse” and suspect

complied silently, we held that “Silence in the face of a request for permission to

search may sometimes be interpreted as acquiescence, but such acquiescence cannot

substitute for free consent.”). But here, the implied consent notice accurately recites

Georgia law as contained within OCGA § 40-5-67.1(b)(2) and informs the suspect

of her choice of either agreeing or refusing to submit to chemical testing, and the

possible consequences for each choice. OCGA § 40-5-67.1(b)(2). In response to that

notice, Kendrick responded an affirmative “yes.”

Kendrick argues that “[c]onsent under the implied consent statute does not per

se equal consent for Fourth Amendment purposes.” This is correct. However,

Kendrick also argues that in “Williams v. State, the Georgia Supreme Court clearly

ruled that in order for a compelled search of a person’s bodily substances to comply

with the Fourth Amendment to the United States Constitution, the state must show

more than just mere consent under Georgia’s Implied Consent Statute.” This is not

a correct characterization of Williams. Williams held that the State’s proof only of an

affirmative answer to the question posed by the implied consent language, standing

alone and regardless of what other facts may exist, is not sufficient to prove actual

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and voluntary consent because it fails to consider the totality of the circumstances.4

Williams, 296 Ga. at 822-23. But we do not read Williams’ rejection of a per se rule

of consent under the implied consent statute as authorizing us to replace it with its

opposite - that is, a per se rule that the State must always show more than consent

under the implied consent statute. Rather, we take the Supreme Court at its word

when it instructed trial courts to review the totality of the circumstances in

determining consent.

An affirmative response to the question posed by the implied consent language

may be sufficient for a trial court to find actual consent, absent reason to believe the

response was involuntary. Here, Kendrick gave an affirmative answer to the question

posed by the implied consent language, which is necessarily part of the circumstances

to be considered by the trial court. She did not attempt to change that answer during

4
Williams is not a case about the facts, but rather is about the standard that the
trial court is to apply. In Williams, the trial court concluded that the implied consent
statute, “in and of itself,” constituted an exception to the Fourth Amendment;
accordingly, the trial court did not look beyond compliance with the statute in
denying Williams’ motion to suppress. Williams, 296 Ga. at 819. The Supreme Court
disagreed and held that the trial court’s error was its “fail[ure] to address whether
Williams gave actual consent to the procuring and testing of his blood, which would
require the determination of the voluntariness of the consent under the totality of the
circumstances.” Id. at 823. The Court did not discuss the facts or any possible result
of the trial court’s future application of the correct test, leaving that for the trial court
to do upon remand.

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the time that elapsed before testing. See Ware v. State, 309 Ga. App. 426, 428 (710

SE2d 627) (2011) (“once voluntary consent is legally obtained, it continues until it

either is revoked or withdrawn”). She did not appear so impaired that she was unable

to understand what she was being asked,5 she did not express any objection to the test,

and the officer did not force her to take the test. Compare Cuaresma, 292 Ga. App.

at 44, 47 (2); Fulghum, 261 Ga. App. at 595-96 (2). During the hearing on her motion

to suppress, although Kendrick testified that she thought the breath test was

mandatory, she also said that her decision to submit to testing was motivated, at least

in part, by a desire to keep her license, a recognition of the actual choice she had. See,

e.g., State v. Modlin, 291 Neb. 660, 674-675 (867 NW2d 609) (2015) (noting that

although the legal consequences of an administrative license revocation make refusal

of a chemical test a difficult choice to make, “the difficulty of such choice does not

render consent involuntary”). On this record, and considering all of the facts before

us, and affording appropriate deference to the trial court that heard the testimony first-

hand, we affirm.6

5
We express no opinion as to what significance greater impairment might have
had for this question.
6
We do not approve the trial court’s language in granting the order based in any
part on finding a license to be a “privilege” rather than a “right.” “[R]elevant

12
 Judgment affirmed. Dillard and McFadden, JJ., concur.

constitutional restraints limit state power to terminate an entitlement whether the
entitlement is denominated a ‘right’ or a ‘privilege.’” State v. Callaway, 236 Ga. 613,
614 (1) (225 SE2d 230) (1976).

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