[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUG 4, 2006
THOMAS K. KAHN
No. 05-13573
CLERK
________________________
D. C. Docket No. 03-03168-CV-TWT-1
RAYMOND ANTHONY MILLER,
Plaintiff-Appellant,
versus
TERRY J. HARGET,
CITY OF RIVERDALE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 4, 2006)
Before EDMONDSON, Chief Judge, BIRCH and ALARCÓN,* Circuit Judges.
ALARCÓN, Circuit Judge:
*
Honorable Arthur L. Alarcün, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
Raymond Miller appeals from the entry of summary judgment in favor of
Officer Terry Harget of the City of Riverdale Police Department and the City of
Riverdale (“the City”). Mr. Miller brought a complaint under 42 U.S.C. § 1983
against Officer Harget and the City, asserting, among other things, a violation of
the Fourth Amendment arising from an encounter with Officer Harget that
eventually led to Mr. Miller’s arrest. The District Court concluded that Officer
Harget had probable cause to stop and arrest Mr. Miller and that no constitutional
violations had occurred. We conclude that the initial encounter between Mr.
Miller and Officer Harget was non-coercive and that no detention triggering the
protection of the Fourth Amendment occurred until Officer Harget reasonably
suspected Mr. Miller of a crime. Mr. Miller’s arrest was supported by probable
cause. Accordingly, we affirm.
I
In his deposition and affidavits filed in opposition to the motion for
summary judgment, Mr. Miller testified as follows. On September 30, 2001, Mr.
Miller had an early dinner with two acquaintances at a Mexican restaurant near the
HomeTown Inn, an extended stay hotel where Mr. Miller was living at the time.
He was staying at the hotel in order to shorten his commute to work. On
2
weekends, he would stay with his family in the nearby town of Lithonia. While at
the restaurant, Mr. Miller met Amy Best.
Mr. Miller and Ms. Best decided to leave the restaurant together. Because
Ms. Best had been drinking, she designated Mr. Miller as the driver of her car, a
‘84 or ‘85 white Pontiac Firebird. They visited Mr. Miller’s family in Lithonia,
which was about twenty-five miles away. They then returned to Riverdale. They
intended to stop at the HomeTown Inn, prior to Mr. Miller driving Ms. Best to her
home.
Mr. Miller drove from Lithonia, without committing any traffic code
violations, and entered the parking lot of HomeTown Inn. After he entered the
parking lot, he drove toward the back of the building. He was hoping to park in
the back, close to where his room was located. There were no spaces available, so
he parked his car in front of the HomeTown Inn.
In his deposition and affidavit filed in support of his motion for a summary
judgment, Officer Harget testified that he was on duty in the area around the
HomeTown Inn in a marked patrol car at approximately 10:15 p.m.. He was
parked in the entrance of the public storage facility near the HomeTown Inn,
observing traffic. From this position, he observed the Best vehicle weave in
between lanes without signaling and make an improper turn into the parking lot of
3
the HomeTown Inn. After witnessing the traffic code violations, Officer Harget
decided to investigate.
Officer Harget pulled into the parking lot and parked directly behind the
already parked Best vehicle. Then, Officer Harget “initialed” his “window lights”
and beeped his siren to let the occupants know he was there. Officer Harget did
not flash his roof lights. He got out of his car and approached the window on the
driver’s side.
When Officer Harget reached the front door on the driver’s side, Mr. Miller,
who was still seated in the vehicle, lowered the window. Officer Harget testified
that when the window was lowered, he smelled alcohol immediately. He also
testified that Mr. Miller’s eyes were bloodshot and glassy and that there was a
white, non-translucent cup in the cup-holder nearest to Mr. Miller.
Officer Harget told Mr. Miller “he was stopping [him] because [he] had
made too wide a turn into the HomeTown Inn parking lot.” Ms. Best responded:
“You are a liar!” Officer Harget asked Mr. Miller for his driver’s license. He
produced it.
Mr. Miller testified that Officer Harget asked him if Ms. Best was his
girlfriend. Ms. Best responded that it was none of Officer Harget’s business. Mr.
Miller testified that Officer Harget then asked him what he was planning to do that
4
night. Mr. Miller responded that he was getting ready to go upstairs for a minute,
come back down, and take Ms. Best home. Mr. Miller testified that Officer Harget
responded: “Yeah, right.”
Officer Harget testified that he took Mr. Miller’s driver’s license and
insurance information back to his patrol vehicle and performed a warrant check
on Mr. Miller. He found no warrants. The date on the insurance card Mr. Miller
provided showed that his car insurance had expired.
Because Ms. Best repeatedly called Officer Harget a liar, Officer Harget
radioed for back up. He then re-approached the Best vehicle. Officer Harget
testified that he asked Mr. Miller if he had been drinking, and that Mr. Miller
admitted to having had a few beers. In his deposition testimony, Mr. Miller
denied that he made that statement or that he drank any alcohol that night.
Officer Harget asked Mr. Miller to perform a breathalyzer test, but Mr.
Miller refused. Mr. Miller testified that he refused to take the test because
“Officer Harget had lied when he said I made too wide of a turn into the parking
lot. I felt that his–he would lie that I went above the limit.”
Officer Harget asked Mr. Miller to step out of the car. As he stepped out of
the vehicle, Mr. Miller dropped some papers onto the floorboard of the Best
vehicle. Officer Harget again asked Mr. Miller to perform a breathalyzer test. Mr.
5
Miller again refused. After Mr. Miller’s second refusal, Officer Harget placed him
under arrest. Officer Harget informed Mr. Miller he was under arrest for DUI. He
read Mr. Miller the implied consent notice for suspects over the age of twenty-one,
including the provision that a “refusal to submit to the required testing may be
offered against you at trial.”1 Mr. Miller refused to take the test required under
1
Under Georgia law,
any person who operates a motor vehicle upon the highways or
elsewhere throughout the state [is] deemed to have given consent .
. . to a chemical test or tests of his or her blood, breath, urine or
other bodily substances for the purpose of determining the presence
of alcohol or any other drug, if arrested for any offense arising out
of acts alleged to have been in violation of [Georgia’s driving
under the influence statute] . . .
Ga. Code Ann. § 40-5-55 (2004). The test is to be administered “as soon as possible at the
request of a law enforcement officer having reasonable grounds to believe that the person has
been driving” under the influence of alcohol. Ga. Code Ann. § 40-5-67.1 (2004). At the time the
test is requested, the officer must read the following to drivers over the age of twenty-one:
Georgia law requires you to submit to state administered chemical
tests 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 tests, you are entitled to additional
chemical tests of your 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 tests of your (designate which tests) under the implied
consent law?
Id. at § 40-5-67.1(b)(2).
6
Georgia law. Officer Harget then escorted Mr. Miller to a patrol car and placed
him in the back seat.
Other officers responded quickly to Officer Harget’s call for backup.
Although the other police officers dealt primarily with Ms. Best, Officer M.E.
Taylor also observed Mr. Miller’s condition. Officer Taylor testified that in his
opinion, Mr. Miller appeared to have been drinking. Officer Taylor testified that
Mr. Miller’s eyes were glassy, his movements were lethargic, and that he smelled
of alcohol.
Officer Harget testified that after placing Mr. Miller under arrest, he
retrieved the white cup. It smelled of alcohol. Officer Harget poured out the
contents of the cup and placed the cup back in Ms. Best’s car. Mr. Miller testified
that there was no cup in the vehicle.
After he was arrested, Mr. Miller was transferred to the Riverdale Police
Department. He was again given the opportunity to take a state administered
blood-alcohol test. He refused. He was issued four traffic citations: DUI; Open
Container; Improper Lane Change; and No Proof of Insurance.2 The Solicitor’s
2
Officer Harget testified that he did not recall whether he wrote the citations at the scene
of Mr. Miller’s arrest or at a later time.
7
office issued a nolle prosequi for the No Proof of Insurance and the DUI charge.
Mr. Miller was acquitted of the remaining two charges at trial.
Following his acquittal, Mr. Miller filed a complaint in federal court against
Officer Harget and the City under § 1983. He alleged that his Fourth, Sixth and
Fourteenth Amendment rights were violated because he was arrested without
probable cause. He also asserted state law claims for false arrest and malicious
prosecution.
The District Court entered summary judgment in favor of Officer Harget
and the City of Riverdale. Mr. Miller has timely appealed from the District
Court’s final judgment.3
II
A
Mr. Miller argues that the District Court erred in entering summary
judgment in favor of Officer Harget on his claim that his Fourth Amendment
rights were violated. He contends that Officer Harget effectuated a traffic stop in
pulling up behind the parked Best vehicle and approaching him. He argues that
the detention was not supported by reasonable suspicion because he did not in fact
3
Mr. Miller does not appeal the District Court’s ruling with regard to his Sixth and
Fourteenth Amendment claims.
8
commit a traffic code violation. Mr. Miller maintains that the District Court erred
in granting summary judgment in favor of Officer Harget and the City because he
demonstrated that there are genuine issues of material fact in dispute regarding
whether he committed any traffic violation.
In contending that the detention and arrest of Mr. Miller were valid, Officer
Harget posits that Mr. Miller cannot “create a factual dispute by simply denying
everything.” Accordingly, he asks us to disregard certain portions of Mr. Miller’s
testimony that seem to conflict with Officer Harget’s. The District Court accepted
this theory, relying on Johnson v. Crooks, 326 F.3d 995 (8th Cir. 2003). We
review the decision of a district court de novo. Summary judgment is appropriate
only if there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Lippert v. Cmty. Bank, Inc., 438 F.3d 1275, 1278
(11th Cir. 2006). We decline to adopt today the Eighth Circuit’s rule in Johnson.
We can affirm anyway and need not worry much about Johnson.
Even if the district court believes that the evidence presented by one side is
of doubtful veracity, it is not proper to grant summary judgment on the basis of
credibility choices. See, e.g., Bischoff v. Osceola County, 222 F.3d 874, 876 (11th
Cir. 2000) (holding that in a § 1983 action against the county and sheriff, it was
error for the district court to resolve factual dispute and make credibility choices
9
on material issues just by relying on reading of warring affidavits); Harris v.
Ostrout, 65 F.3d 912, 916-17 (11th Cir. 1995) (holding that in a § 1983 action
against prison officials, affidavits by fellow inmates created a triable issue of fact
precluding summary judgment); Perry v. Thompson, 786 F.2d 1093, 1095 (11th
Cir. 1986) (holding that where defendants’ affidavits directly contradicted prison
officers’ version of events, there was a “square, head-on dispute of material facts”
precluding summary judgment).
Mr. Miller’s affidavits and deposition squarely contradict Officer Harget’s
version of the events. In his affidavit, Officer Harget contends that he based his
decision to arrest Mr. Miller for driving under the influence of alcohol on the
following facts: (1) his failure to maintain his lane of traffic; (2) his failure to
signal when turning into the parking lot of the HomeTown Inn; (3) the odor of
alcohol coming from within the vehicle and from Mr. Miller; (4) Mr. Miller’s
bloodshot glassy eyes; (5) Mr. Miller’s admission that he consumed alcohol; (6)
Mr. Miller’s uncoordinated mannerisms and that he dropped some documents
while exiting the vehicle; (7) the presence of the non-translucent white cup
containing what Officer Harget believed to be alcohol; and (8) Mr. Miller’s refusal
to take breathalyzer tests.
10
Mr. Miller testified that he did not violate any traffic laws. He testified that
he had not been drinking. He alleged in an affidavit that there was no irregularity
to his mannerisms or speech, that he was not uncoordinated, and that he did not
have any problems standing, talking, or hearing. Although he could not state what
his eyes looked like because he did not look in a mirror, he testified that he did not
have any problems with his vision. Mr. Miller further testified that he did not
admit to Officer Harget that he had been drinking. He denied that there was a non-
translucent white cup in his car containing alcohol.
Officer Harget is correct in arguing that Mr. Miller’s subsequent acquittal is
not determinative of whether Officer Harget had reasonable suspicion or probable
cause. “The Constitution does not guarantee that only the guilty will be arrested.
If it did, § 1983 would provide a cause of action for every defendant
acquitted–indeed, for every suspect released.” Baker v. McCollan, 443 U.S. 137,
145 (1979). But Mr. Miller’s acquittal and the evidence adduced at that trial,
which is included in the record on appeal, demonstrates that there may be a factual
dispute regarding Officer Harget’s reasonable suspicion that Mr. Miller committed
traffic violations.
11
B
We may affirm the District Court on any basis supported by the record.
Williams v. BellSouth Telecomm., Inc., 373 F.3d 1132, 1139 (11th Cir. 2004). The
District Court concluded that Mr. Miller was seized, for Fourth Amendment
purposes, when “the officer approached the vehicle, smelled alcohol, and observed
the Plaintiff’s appearance.” Prior to that, the District Court concluded that “there
was no detention of the Plaintiff.” We agree.
In United States v. Perez, 443 F.3d 772 (11th Cir. 2006), this Court
explained that there are three types of encounters between police and citizens “for
purposes of . . . Fourth Amendment analysis: (1) police-citizen exchanges
involving no coercion or detention; (2) brief seizures or investigatory detentions;
and (3) full-scale arrests.” Id. at 777 (citing United States v. Hastamorir, 881 F.2d
1551, 1556 (11th Cir. 1989)). This Court noted that an encounter that does not
involve coercion or detention “does not implicate Fourth Amendment scrutiny.”
Id. (quoting United States v. Espinosa-Guerra, 805 F.2d 1502, 1506 (11th Cir.
1986)). Officers are free, without any level of suspicion, to approach citizens on
the street or in a public place and ask them questions, request proof of
identification, and a consent to search. Id.; see also Florida v. Royer, 460 U.S.
491, 497 (1983) (plurality opinion) (“law enforcement officers do not violate the
12
Fourth Amendment by merely approaching an individual on the street or in
another public place, by asking him if he is willing to answer some questions, by
putting questions to him if the person is willing to listen, or by offering in
evidence in a criminal prosecution his voluntary answers to such questions”). “If a
reasonable person would feel free to terminate the encounter, then he or she has
not been seized.” Perez, 443 F.3d at 777-78 (emphasis omitted) (quoting United
States v. Drayton, 536 U.S. 194, 200-01 (2002)); see also United States v.
Mendenhall, 446 U.S. 544, 554 (1980) (Stewart, J.) (articulating “free to leave”
test). In determining whether a “reasonable person would feel free to terminate
the encounter,” courts consider several factors: “whether a citizen’s path is
blocked or impeded; whether identification is retained; the suspect’s age,
education and intelligence; the length of the suspect’s detention and questioning;
the number of police officers present; the display of weapons; any physical
touching of the suspect, and the language and tone of voice of the police.” Perez,
443 F.3d at 778 (quoting United States v. De La Rosa, 922 F.2d 675, 678 (11th
Cir. 1991)).
This Court has decided on several occasions that a police officer does not
seize an individual merely by approaching a person in a parked car. See United
States v. Baker, 290 F.3d 1276, 1277 (11th Cir. 2002) (officer approached vehicle
13
stopped in traffic), De La Rosa, 922 F.2d at 677 (officer approached individual as
he walked away from a parked car); United States v. Thompson, 712 F.2d 1356,
1358 (1983) (officer approached individual sitting in parked car). Here, the time
that preceded Officer Harget’s arrival at the driver’s side of the Best vehicle was
extremely brief. Before Mr. Miller voluntarily lowered the window, Officer
Harget did not do anything that would appear coercive to a reasonable person. For
example, he did not draw his gun, give any directions to Mr. Miller, or activate his
roof lights.
Mr. Miller contends that he was detained or seized when Officer Harget
parked behind him. We disagree. The record shows that Mr. Miller intended to
walk to his room after voluntarily parking the car. It is not dispositive that Officer
Harget would have prevented Mr. Miller from backing Ms. Best’s car out of the
parking space. In De La Rosa, two police officers in unmarked cars followed Mr.
De La Rosa as he
proceeded to his apartment across the street and used a
special pass in order to open a security gate into the
parking lot. Before the gate closed, one of the police
officers . . . entered the complex. After [Mr. De La
Rosa] parked and began walking toward his apartment,
[the officer] positioned his unmarked police car directly
behind [Mr. De La Rosa’s] vehicle, approached [Mr. De
La Rosa], identified himself as a police officer, and
asked [Mr. De La Rosa] if he could speak with him.
14
De La Rosa, 922 F.2d at 677. This Court concluded in De La Rosa that no seizure
had occurred. Id. at 678. In the instant matter, Mr. Miller did not demonstrate that
he had any intent to back out of the parking space when Officer Harget pulled up
behind him.
The fact that Officer Harget turned on his “window lights,” in addition to
parking behind the Best vehicle, does not necessarily make his approach of Mr.
Miller a coerced detention. In United States v. Dockter, 58 F.3d 1284 (8th Cir.
1995), a police officer “pulled his vehicle behind [the defendants’] parked car and
activated his amber warning lights.” Id. at 1287. The court concluded that
“[t]here was no behavior by the officer that would differentiate this encounter
from one where an officer approaches a stranded motorist to offer assistance.” Id.
In this case, Officer Harget testified that he initiated his lights so that Mr. Miller
would know that he was there. See also Perez, 443 F.3d at 778 (concluding that
when, among other things, police officer “briefly flashed his blue lights, but only
to identify himself as a police officer because he arrived at the scene in an
unmarked car,” no detention occurred).
Briefly stated, the ultimate inquiry is whether Officer Harget’s initiation of
his lights and placement of his vehicle exhibited coercion that would make Mr.
Miller feel he was not free to leave. Neither of these facts by itself is dispositive:
15
rather, we consider them in light of the totality of the circumstances. See Perez,
443 F.3d at 778. Considering the fact that the first contact between Mr. Miller and
Officer Harget did not occur until Mr. Miller lowered the window, the fact that
Officer Harget pulled up behind Mr. Miller and turned on his “window lights”
does not demonstrate that Mr. Miller was coercively detained. “On this record,
viewing the totality of the circumstances, there was no ‘show of authority that
communicate[d] to the individual that his liberty [was] restrained, meaning he
[was] not free to leave.” Perez, 443 F.3d at 778 (quoting Baker, 290 F.3d at
1278)).4
B
4
It is irrelevant whether Officer Harget intended to detain Mr. Miller when he parked his
patrol car behind the Best vehicle, flashed his lights, and approached the driver’s side window.
As Professor LaFave has explained:
In exploring the meaning of the [free-to-leave] standard, certainly
the first matter deserving of attention is the emphatic statement that
the uncommunicated intention of the officer is not determinative. .
. . []The objective nature of the test also means that whether an
encounter has become a seizure “depends on the officer’s objective
behavior, not any subjective suspicion of criminal activity”; in
other words, it is not the case that an “officer can engage in a
consensual encounter only with citizens whom he does not suspect
of wrongdoing.”[]
4 Wayne LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 9.4(a), at 413-14
(4th ed. 2004) (quoting United States v. Waldon, 206 F.3d 597 (6th Cir. 2000)); see also Brower
v. County of Inyo, 489 U.S. 593, 596-597 (1989) (“a Fourth Amendment seizure does not occur
whenever there is a governmentally caused termination of an individual's freedom of movement .
. . , nor even whenever there is a governmentally caused and governmentally desired termination
of an individual's freedom of movement . . . , but only when there is a governmental termination
of freedom of movement through means intentionally applied.”);
16
Although Officer Harget did not seize Mr. Miller simply by parking behind
the Best vehicle and approaching it on foot, it is clear that Officer Harget did
detain him after smelling alcohol in the vehicle. See Perez, 443 F.3d at 777
(discussing different types of seizures under the Fourth Amendment). A detention
is reasonable under the Fourth Amendment if “the officer’s action is supported by
reasonable suspicion to believe criminal activity ‘may be afoot.’” Arvizu, 534 U.S.
at 273 (quoting United States v. Sokolow, 490 U.S. 1, 7 (1989)). To determine if
an officer had reasonable suspicion, courts “must look at the ‘totality of the
circumstances’ of each case to see whether the detaining officer has a
‘particularized and objective basis’ for suspecting legal wrongdoing.” Id. (quoting
United States v. Cortez, 449 U.S. 411, 417-418 (1981)). Officers may “draw on
their own experience and specialized training to make inferences from and
deductions about the cumulative information available to them that ‘might well
elude an untrained person.’” Id. (quoting Cortez, 449 U.S. at 418); see also
Thompson, 712 F.2d at 1361 (stating that reasonable suspicion is based on
“articulable and specific facts known to [the officer] when the seizure occurred”).
Mr. Miller argues that a genuine issue of material fact exists with regard to
whether he violated the traffic laws. While that may be true, it is undisputed that
Officer Harget smelled alcohol when Mr. Miller lowered the window. It is also
17
undisputed that one occupant of the car, Ms. Best, had been drinking. Because
Mr. Miller was the driver of the vehicle, and may have consumed alcohol, Officer
Harget was justified in detaining him to determine whether he had been driving
under the influence of alcohol. Under these circumstances, a prudent officer could
question the driver and ask the driver to take a breathalyzer test. See, e.g., Arvizu,
534 U.S. at 277 (stating that an officer “need not rule out the possibility of
innocent conduct” in order for reasonable suspicion to exist) (citing Illinois v.
Wardlaw, 528 U.S. 119, 125 (2000)). Therefore, when Officer Harget smelled
alcohol coming from the vehicle Mr. Miller had been driving, he had reasonable
suspicion to detain Mr. Miller in order to investigate.
C
Arrests must be based on probable cause. “A warrantless arrest without
probable cause violates the Constitution and provides a basis for a section 1983
claim.” Kingsland, 382 F.3d at 1226. Probable cause exists when “the facts and
circumstances within the officers’ knowledge, of which he or she has reasonably
trustworthy information, would cause a prudent person to believe, under the
circumstances shown, that the suspect has committed, is committing, or is about to
commit an offense.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998)
(quoting Williamson v. Mills, 65 F.3d 155, 158 (11th Cir. 1995)).
18
The record shows that Officer Harget had probable cause to arrest Mr.
Miller after he completed the investigation triggered by reasonable suspicion that
Mr. Miller was driving under the influence of alcohol. First, Officer Harget
witnessed Mr. Miller driving. Second, Officer Harget smelled alcohol emanating
from the interior of the vehicle when Mr. Miller lowered the window. Third, Mr.
Miller refused to take a breathalyzer test.
Whether or not Officer Harget had probable cause to arrest Mr. Miller
because the officer smelled alcohol coming from the vehicle, the officer did have
reasonable suspicion. He reasonably detained Mr. Miller in order to investigate
whether he had been driving under the influence. From this detention, probable
cause developed, justifying Mr. Miller’s arrest, because Mr. Miller refused to take
a breathalyzer test.
A prudent officer could conclude from a refusal to take a test, coupled with
the smell of alcohol, that the driver had in fact been drinking. See Rankin, 133
F.3d at 1435 (stating that test for probable cause is what a prudent officer would
believe); see also Long v. State, 610 S.E.2d 74, 77 (Ga. Ct. App. 2004) (noting
that evidence of a refusal to take a blood-alcohol test is admissible against a
person charged with driving under the influence); Ga. Code Ann. § 40-5-
67.1(b)(2) (giving notice to those who refuse to submit to a blood-alcohol test that
19
their refusal is admissible as evidence at trial). Submitting to a breathalyzer test is
a minor inconvenience for a driver and an easy opportunity to end a detention
before it matures into an arrest. Mr. Miller chose not to endure this minor
inconvenience. It was reasonable for Officer Harget to view this choice as
evidence of guilt. Any other conclusion would tie the hands of law enforcement in
their efforts to keep intoxicated drivers off the streets. If a driver refused to
submit to a test after an officer smelled alcohol, the officer would have no choice
but to let him or her go, absent other evidence the driver had been drinking.
In this case, Officer Harget reasonably sought the information he needed to
confirm whether Mr. Miller had been drinking. A driver cannot escape arrest
simply by refusing to cooperate. We therefore conclude that Mr. Miller’s refusal
to take a breathalyzer test, coupled with the smell of alcohol from the vehicle,
gave Officer Harget probable cause to arrest him. This conclusion is consistent
with Summers v. State of Utah, 927 F.2d 1165 (10th Cir.1991), in which the Tenth
Circuit wrote: “The undisputed facts regarding plaintiff’s operation of his vehicle,
the officer’s scent of alcohol emanating from the vehicle and plaintiff’s refusal to
20
take a field sobriety test substantiate the . . . conclusion” that the officer had
probable cause. Id. at 1166.5
III
Mr. Miller argues that Officer Harget stopped him because he is African-
American and with an intent to harass him, not because he was suspected of
criminal activity. It is well-settled that an officer’s subjective motivations do not
affect whether probable cause existed. Whren v. United States, 517 U.S. 806, 813
(1996) (concluding that subjective motivations are irrelevant with regard to
validity of a traffic stop); Arkansas v. Sullivan, 532 U.S. 769, 771-772 (2001)
(concluding that subjective motivations are irrelevant with regard to validity of an
arrest); Durruthy v. Pastor, 351 F.3d 1080, 1088 n.5 (11th Cir. 2003) (“[t]here is
no question that an officer’s subjective intent is immaterial when there is an
objectively reasonable basis for believing that an offense has occurred”).6
5
It is also undisputed that Mr. Miller dropped papers while exiting the vehicle. Officer
Harget interpreted this as evidence of intoxication. We need not discuss the reasonableness of
this inference as it relates to a determination of probable cause because we conclude that the fact
that Mr. Miller was driving a vehicle, an odor of alcohol emanated from its interior, and his
refusal to submit to a field sobriety test was sufficient to give Officer Harget probable cause to
arrest. We also need not reach the question whether Officer Harget had probable cause to arrest
Mr. Miller based on his failure to provide proof of insurance.
6
Mr. Miller does not argue that Officer Harget violated his right to equal protection.
21
We conclude that Mr. Miller has failed to produce evidence creating a
genuine issue of material fact with regard to his Fourth Amendment claim. No
detention or seizure of Mr. Miller occurred until he lowered the window of his
vehicle and Officer Harget smelled alcohol. The smell of alcohol was sufficient to
give Officer Harget reasonable suspicion that Mr. Miller had been driving under
the influence of alcohol. As Officer Harget engaged in a reasonable investigation,
including requesting that Mr. Miller submit to a breathalyzer test, Mr. Miller
refused to cooperate. This refusal gave Officer Harget probable cause to arrest
Mr. Miller.
IV
Mr. Miller next argues that the City is liable for a violation of his Fourth
Amendment rights. Because Mr. Miller has failed to establish that his
constitutional rights were violated, he has necessarily failed to establish the City’s
liability. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (concluding
that when no constitutional violation is demonstrated, there is no basis for which
to hold municipality liable).
V
Finally, Mr. Miller argues that the District Court erred in entering summary
judgment in favor of Officer Harget and the City on his state law claims of false
22
imprisonment, false arrest and malicious prosecution. Each of these claims
requires a showing that the defendant acted without probable cause. Adams v.
Carlisle, __ S.E.2d__, 2006 WL 1390593, at * 3-4 (Ga. Ct. App. 2006). Because
we have concluded that Officer Harget had probable cause to arrest Mr. Miller,
Mr. Miller’s state law claims also fail.
AFFIRMED.
23