The State v. Depol

FIRST DIVISION
DOYLE, C. J.,
BOGGS 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

March 15, 2016

In the Court of Appeals of Georgia
A15A1947. THE STATE v. DEPOL. BO-075C

BOGGS, Judge.

The State of Georgia appeals from the trial court’s order granting Scott Depol’s

motion to suppress the results of a breath test based upon the Supreme Court of

Georgia’s recent decision in Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015).

Specifically, the trial court concluded that “the Defendant’s apparent voluntary

intoxication left him without the ability to voluntarily consent to a search of his

breath with the use of a machine, despite the lack of threats, benefits or promises from

any of the three officers present on the scene.” For the reasons explained below, we

reverse.

[O]n appeal from a ruling on a motion to suppress, we defer to the trial
court’s factual findings and credibility determinations, but review de
novo the court’s application of the law to the undisputed facts. And
 significantly, to the extent that the controlling facts “are undisputed
because they are plainly discernable from the patrol car-mounted video
recording,” as they are in this case, we review those facts de novo.

(Citations, punctuation and footnotes omitted.) State v. Mosley, 321 Ga. App. 236

(739 SE2d 106) (2013). See also Mack v. State, 296 Ga. 239, 241 (765 SE2d 896)

(2014) (de novo review of videotaped interview to determine if defendant waived

Fifth Amendment rights); Vergara v. State, 283 Ga. 175, 178 (1) (657 SE2d 863)

(2008) (de novo review of facts discernible from a videotape). “Although we owe

substantial deference to the way in which the trial court resolved disputed questions

of material fact, we owe no deference at all to the trial court with respect to questions

of law, and instead, we must apply the law ourselves to the material facts. [Cit.]”

Hughes v. State, 296 Ga. 744, 750 (2) (770 SE2d 636) (2015). This includes legal

determinations based upon the totality of the circumstances. See, e. g., Hughes, supra,

296 Ga. App. at 749-752 (no deference owed to trial court’s determination that

totality of circumstances showed no probable cause to arrest); Boyd v. State, 315 Ga.

App. 256, 257 (1) (726 SE2d 746) (2012) (applying de novo review of videotaped

interview to determine if totality of circumstances showed that juvenile knowingly

and voluntarily waived his Fifth Amendment right against self-incrimination);

2
Franklin v. State, 249 Ga. App. 834, 835 (1) (549 SE2d 794) (2001) (applying de

novo review of tape recording and police officer testimony to determine whether

confession voluntary).

In this case, the trial court ruled based upon the testimony of three sheriff’s

deputies in a previous motion to suppress hearing,1 a video of the police interaction

with Depol taken from a camera inside one of the deputy’s patrol car, and previous

findings of fact made in its order denying Depol’s first motion to suppress made on

other grounds. In its first order, the trial court made the following findings of fact:

Corporal C. Prescott was dispatched to a 911 call in reference to
a hit &run/striking fixed object call. Upon her arrival at the scene of the
incident, she spoke to the property owner and attempted to locate the
vehicle and driver involved at the Kroger down the street. When she was
unsuccessful, she returned to the incident location. Shortly after her
return, an unknown individual is heard arriving on scene and telling
Corporal Prescott that a vehicle that appeared to be involved in an
accident was at the auto parts store up the street with the driver trying
to change a tire and “he’s pretty drunk.” It is apparent from her response
and later actions that she did nor hear the last comment about possible
intoxication. Immediately thereafter, she leaves the incident location and
goes to the auto parts store. There, she finds the defendant outside his

1
In his first motion to suppress, Depol’s argument centered on the claim that
the unreasonable length of his detention vitiated his consent to the breath test.

3
vehicle in the parking lot of the auto parts store. The vehicle is parked,
doors open, and it appears the defendant is attempting to change a tire.
She engages him in conversation, and he admits that he was in an
accident and did leave the scene. Less than a minute after arriving on the
scene, the defendant hands the officer his driver’s license. She tells the
defendant that she will need his insurance information to write a report,
he indicates it just changed, and from there begins a long attempt of the
defendant to get the insurance information. This attempt includes
looking in the vehicle and making several phone calls.

Four minutes after arriving at the defendant’s location, Corporal
Prescott calls in the defendant’s driver’s license and tag information to
dispatch. Approximately two minutes later a second officer arrives on
scene. Corporal Prescott tells this officer that she doesn’t smell anything
and that she intends to give the defendant a ticket for leaving the scene.
Two minutes later she receives information from dispatch that both the
driver’s license and tag are valid. Almost four minutes after receiving
this dispatch information, the defendant has still not been able to locate
any insurance information. He has been free to walk around his vehicle,
get in and out of his vehicle, and at one point walk into and out of the
auto parts store. At some point, the second officer begins to suspect that
the defendant might be impaired and asks Corporal Prescott about doing
an alcosensor on the defendant almost four minutes after the dispatch
information was received. She reveals that she cannot smell anything at
all. She never relays the information from an unknown individual about
intoxication, and it appears she really never heard that information. The
defendant denies consuming alcohol. The defendant continues to

4
attempt to get insurance information. At some point, a third officer
arrives on scene. The audio cuts in and out at some points, as if someone
cuts off their microphone.

Seven minutes after the first mention of an alcosensor, the
defendant has still not been able to get any insurance information. The
second officer tells the first officer that another officer is going to bring
an alcosensor. It appears that even Corporal Prescott attempts to get the
insurance information for him but is unsuccessful. The alcosensor
arrives seven minutes after it was indicated that someone was bringing
one. Corporal Prescott is assisted by another officer in operating it, and
the defendant voluntarily blows into it. It registers positive for alcohol
at approximately twice the legal limit (the number is shown on the
video). From there, none of the three officers does any field sobriety
evaluations. Corporal Prescott is clearly the lead officer on the case, and
the others appear to be waiting for her to make a decision. The
defendant appears to talk about some people in the sheriff’s office that
he knows. For ten minutes after the defendant blows into the alcosensor,
all three officers are talking to the defendant and then conversing with
each other, with the microphone turned off some. No insurance
information has provided at this point still. Four more minutes elapse
a[s] the other two officers appear to be attempting to let Corporal
Prescott come to the conclusion that they have – which is to arrest the
defendant for DUI. One officer even says, “I’d take him to jail – you
have enough, crash, presence of alcohol, not last night.” Finally
Corporal Prescott tells the defendant he is under arrest. It has been
approximately 42 minutes since Corporal Prescott arrived on scene. The

5
 defendant was never able to provide any insurance information. It is the
defendant’s apparent inability to successfully find out his insurance
information or even operate the telephone properly that attributes to the
officers’ suspicions of impairment. Additionally, during this lengthy
interaction the defendant begins to sway and become unsteady on his
feet. After the arrest, Corporal Prescott secures the defendant in the back
of her patrol car and reads implied consent properly. Implied consent is
read two minutes after the handcuffs go on the defendant. He agrees to
take the state’s test.

The above facts were gained from a review of the video. At the
hearing, Captain Pinyan, the second officer to arrive on the scene,
testified that the defendant’s eyes were bloodshot and glassy and that he
was chewing gum. He also testified that the defendant swayed while
trying to talk on the telephone, and he appeared to be under the
influence of something. Corporal Prescott also testified at the hearing
and said that the defendant’s eyes were bloodshot, his speech delayed,
he swayed, and when asked if had been drinking said, “No, thank you.”
The defendant later said that he’d had “too much to drink,” but that it
was the night before.

(Emphasis supplied.) The trial court denied Depol’s motion to suppress based upon

its conclusion that probable cause existed for his arrest, the length of his detention

was not unreasonable, and the implied consent notice was timely and properly read.

6
 Six months later, Depol filed a supplemental motion to suppress based upon

the Supreme Court’s intervening decision in Williams, supra. In a second hearing

before the trial court, it heard only argument of counsel before ruling from the bench

that it would grant the motion. It stated, “All the reasons that I put in my order as to

his demeanor are the same reasons that lend me to believe that he could not have

formed a voluntary choice. He was, as you watch the video, and it’s quite a lengthy

video, it’s very clear he’s extremely impaired.”

In its written order granting the second motion to suppress, the trial court

expressly states that its ruling is based upon the findings of fact in its previous order,

as well as the evidence and testimony presented in the first motion to suppress

hearing, which had been held ten months before. It also stated:

The issue at hand is whether the Defendant, in agreeing to submit
to the State’s breath test under the Georgia Implied Consent law, also
made a voluntary decision to waive any remaining Fourth Amendment
rights and consent to the search of his breath through the use of an
Intoxilizer breath testing machine. After a review of the totality of the
circumstances, this Court finds that the State did not carry its burden in
proving that the Defendant voluntarily consented to taking the breath
test.

7
 It was clear from the video that the Defendant was extremely
impaired. He had grave difficulty in using his cell phone. He was never
able to utilize it to find insurance information. His physical demeanor
clearly indicated he was under the influence – swaying, difficulty
operating the cell phone, appearing confused as to recent time line of
events, not appearing to work on changing his tire, delayed speech, not
knowing whether he was coming from or going to hunt, unsure of when
he had consumed alcohol. At one point, three officers were present on
scene and yet the Defendant appeared to express no concern for why
they were there. He felt free to roam the area, appearing to not fully
understand the gravity of the situation. At one point, he is asked if he
had been drinking said, “No, thank you.” It is the defendant’s apparent
inability to successfully find out his insurance information or even
operate the telephone properly that attributes to the officers’ suspicions
of impairment. The defendant appears to talk about some people in the
sheriff’s office that he knows, almost in a small talk fashion and not in
an attempt to persuade the officers to not arrest him. This is odd
considering others facing three officers likely would have felt an
impending arrest. The alcosensor the Defendant took registered for
alcohol at approximately twice the legal limit (the number is shown on
the video).

Essentially, the officers clearly had sufficient probable cause to
arrest the Defendant for DUI, but for all the same reasons, under a
totality of the circumstances, it is also clear that the Defendant’s
intoxication left him in state in which he could not have formed a
voluntary decision to waive his Fourth Amendment rights and consent

8
 to providing a breath sample. . . . [I]n this particular case, the
Defendant’s apparent voluntary intoxication left him without the ability
to voluntarily consent to a search of his breath with the use of a
machine, despite the lack of threats, benefits or promises from any of the
three officers present on scene.

We cannot determine from the transcript of the second hearing or the trial

court’s order whether it watched the video again in the six-month time period

between its first and second orders. A review of the hearing transcript for the first

motion to suppress shows that none of the deputies were asked any questions relating

to the voluntariness of Depol’s consent to a breath test after he was read the implied

consent notice. Corporal Prescott testified only that after she read the implied consent

notice to Depol, “he agreed” and her testimony is supported by the video. No

evidence was presented about his education, intelligence, or medical conditions.

According to the citation in the trial court record, Depol was 47 years old at the time

of his arrest.

On appeal, the State contends that the trial court erred by concluding that it

failed to meet its burden of proving that Depol voluntarily consented to the breath

test. We agree.

9
 In Schneckloth v. Bustamonte, 412 U. S. 218 (93 SCt 2041, 36 LEd 2d 854)

(1973), the Supreme Court of the United States addressed at length what the

prosecution must “prove to demonstrate that a consent [to search] was ‘voluntarily’

given.” Id. at 223. It rejected knowledge of the right to refuse consent as a

requirement for effective consent. Id. at 223, 234-246 (II) (B). See also Woodruff v.

State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975). Instead, it adopted a “totality of

the circumstances test” in which the knowledge of the accused is but one factor to be

considered. Schneckloth, supra, 412 U. S. at 227 (II) (B). Accordingly, when the State

relies upon the consent exception to the warrant requirement, “it has the burden of

proving that the accused acted freely and voluntarily under the totality of the

circumstances.” (Citations, punctuation and footnote omitted.) Williams, supra, 296

Ga. at 821-822.2

2
While the trial court’s order stated the correct standard, we note that it also
included some loose, less specific language about the issue before it. Specifically, the
trial court framed it as follows: “The issue at hand is whether the Defendant, in
agreeing to submit to the State’s breath test . . . also made a voluntary decision to
waive any remaining Fourth Amendment rights and consent to the search of his
breath.” (Emphasis supplied.) The issue, however, is not whether the defendant
voluntarily decided to waive his Fourth Amendment rights, but rather whether he
voluntarily consented to a breath test. “Where the trial court has used a wrong
standard in reaching its conclusion, a remand may be appropriate where legitimate
factual issues are raised. However, where there is no evidence which would authorize
the grant of the motion to suppress, a remand is unnecessary.” (Citations and

10
 In a recent case applying Williams, supra, this court noted:

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 “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).

punctuation omitted.) State v. Davison, 280 Ga. 84, 86 (2) (623 SE2d 500) (2005).

11
Kendrick v. State, Ga. App. (Case No. A15A2111, decided February 23, 2016).

In the context of determining whether a defendant has knowingly and

voluntarily waived his right to be silent under the Fifth Amendment, we have held

that “the mere fact that a defendant was intoxicated at the time of the statement does

not necessarily render it inadmissable. If the evidence is sufficient to establish that

the defendant’s statement was the product of rational intellect and free will, it may be

admitted even if the defendant was intoxicated when he made the statement.”

(Citations and punctuation omitted.) McNear v. State, 326 Ga. App. 32, 34 (2) (755

SE2d 844) (2014).

In this case, we have reviewed the video of Depol’s interactions with the

deputies and conclude that it cannot support the trial court’s observation that it shows

“the Defendant was extremely impaired” and “without the ability to voluntarily

consent to a search of his breath.” While Depol sways slightly at times, it is clear

from the video of his approximately 45-minute interaction with the officers that he

was capable of exercising sufficient free will to consent to a breath test. When the

officer first approached him at the auto parts store, he exchanged appropriate and

well-timed greetings with her, admitted that he ran off the road due to bad tires, and

explained that he planned to return to where he ran off the road after he changed out

12
the bad tire.3 During this exchange, he continually worked at unwinding something

located on the floor of the rear hatch of his sport utility vehicle4 while periodically

turning his head to talk with the deputy. He stopped working only after the deputy

asked him to get his driver’s license and insurance information for her.

After pulling out his wallet and handing the deputy his driver’s license, he

walked quickly toward the driver’s compartment of the car where he appeared to

begin searching for his insurance information. After looking unsuccessfully for about

two minutes, he told the officer that he had just changed his insurance. After another

minute of unsuccessful searching, he told the deputy that his insurance carrier was

Allstate. She replied, “If you wouldn’t mind sir, I’m still gonna need you to contact

someone to get the policy number.” He acknowledged her request, and the deputy

returned to her patrol car, leaving him in the driver’s seat of his vehicle.

Approximately three minutes later, the deputy tells another deputy who has

arrived as back-up that she didn’t “smell any alcohol, he’s not drunk . . . so he’ll get

a ticket for leaving the scene of an accident. . . . He’s trying to call his Allstate

3
The deputy acknowledged that the property owner told her that his property
“was a hot spot for cars going off the roadway” and had “happened many times
before.”
4
The deputy testified that he was attempting to get out his spare tire.

13
insurance.” Three minutes later, Depol gets out of the car and looks at the damage to

his tire with the back-up deputy and talks with this deputy for about two minutes, but

their conversation cannot be heard on the video and the deputy almost entirely blocks

the camera’s view of Depol for a large portion of this conversation. At the end of their

conversation, the deputy walks away from him to talk with the first deputy who

appears to be seated in her patrol car, while Depol walks inside the auto parts store.

When Depol returns to his vehicle less than a minute later, the first deputy

steps away from her patrol car and asks him whether he had been able to obtain his

insurance information. Depol responded in the negative, removed his cell phone from

the front seat and explained to the officer that he could not see the phone well

because “his arms weren’t long enough” as he demonstrated holding it far away from

his body.5 He continues trying to operate the phone while holding it out as far as he

can from his body until he overhears the deputies discussing the amount of damage

to the fence where he ran off the road. At that point, he looks up from the phone and

interjects, “I’m going to pay for that.” When the deputy explains that either he or his

insurance company would have to pay for it, he repeats that he would pay for it.

5
At one point in the video, Depol pats his shirt pockets as though he is looking
for reading glasses, but his pockets are empty. The deputy testified that she believed
Depol “was straining to try to read his [cell phone].

14
When the officers explained that they needed to verify he was driving with valid

insurance, Depol stated, “Oh, I understand.” As the officers continued to discuss with

one another potential damage to a fire hydrant, Depol, interjected that he was calling

1-800-All-State. After hanging up, he asked the officer another question, and she

responded that she still needed the policy number. While Depol continued trying to

obtain the requested policy number, the officer also attempted to do it herself while

back in her patrol car. Three minutes later, she states, apparently to herself, “Really,

you just hung up on me. Seriously.” When another officer approaches her a minute

later, she responds, “I haven’t even gotten it.”

After another officer brings an alcosensor, the first deputy stated, “Mr. Depol,

if you wouldn’t mind, I’d like you to breathe into this just to make sure you are safe

to drive.” Depol responded, “I’m safe.” After the device was explained, the officer

instructed Depol to take a deep breath and blow. Depol followed her instructions

without difficulty.

Approximately 14 minutes later, Depol was arrested and placed in handcuffs.

Depol responded appropriately when the officer asked if he had a weapon in his

vehicle. When a deputy explained that his car would be towed and that his weapon

would be placed in evidence for safekeeping, Depol stated that he understood and

15
informed the officer that his gun was in a case and that there were no other weapons

present. Immediately after this conversation, during which Depol responded in a

timely and appropriate fashion, the first deputy read the implied consent warning to

Depol and he replied, “yes ma’am,” when asked if he would submit to the state-

administered test.

Based upon our de novo review of the video and the other undisputed evidence

before the trial court, we conclude that Depol voluntarily consented to a test of his

breath.6 Although he was under the influence of alcohol, the video clearly

demonstrates that he was also capable of understanding what was said to him, able

to freely and voluntarily consent, and actually did so. Accordingly, we reverse the

trial court’s grant of Depol’s motion to suppress. See State v. McMichael, 276 Ga.

App. 735, 739-740 (1) (624 SE2d 212) (2005) (reversing trial court’s grant of motion

to suppress after applying law to undisputed facts and determining that consent to

6
Even under the clearly erroneous standard of review, we would have to
reverse the trial court’s decision to grant the motion to suppress in this case as the
evidence demands the conclusion that Depol voluntarily consented to the state-
administered breath test. See State v. Kinsey, 272 Ga. App. 723, 724 (613 SE2d 232)
(2005) (physical precedent only). In its first order, the trial court expressly concluded
that Depol voluntarily blew into the alcosensor and nothing which occurred in the 14
minutes between the alcosensor and Depol’s consent to the state-administered breath
test demonstrates that he was too intoxicated to freely and voluntarily consent.

16
search was voluntary); State v. Brown, 273 Ga. App. 148, 151 (2) (c) (614 SE2d 250)

(2005) (same).7

Judgment reversed. Doyle, C. J. and Rickman, J., concur.

7
Depol’s argument that we should conclude that he merely acquiesced to a
show of authority based upon the language of the implied consent notice has already
been rejected by this court in Kendrick, supra, slip opinion at 9.

17