THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS 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
October 4, 2017
In the Court of Appeals of Georgia
A17A0841. SUGGS v. THE STATE.
RICKMAN, Judge.
After personally observing appellant Scott Suggs commit several traffic
offenses in Hall County, a Hall County deputy sheriff conducted a traffic stop in that
county but crossed the county line in order to conduct an investigation and effectuate
an arrest of Suggs for DUI-less safe. Suggs moved to suppress all evidence
surrounding and including his arrest, contending that the deputy lacked the authority
to investigate and/or arrest him outside of Hall County. The trial court agreed with
Suggs that the deputy exceeded his authority outside of Hall County, but held that
suppression of the evidence was not warranted because the arrest did not amount to
a violation of Suggs’s constitutional rights. We granted Suggs’s motion for
interlocutory appeal in order to review the trial court’s order. For the following
reasons, we conclude that the trial court erred to the extent that it held that the deputy
was not authorized to investigate and/or arrest Suggs outside of Hall County; we
nevertheless affirm the trial court’s order denying Suggs’s motion to suppress as right
for any reason.1
The pertinent facts underlying Suggs’s motion are undisputed, and we therefore
apply a de novo review to the trial court’s application of the law to the facts. See
Mitchell v. State, ___ Ga. ___, *4 (Case No. S17A0459, decided June 26, 2017)
(“When the evidence at a suppression hearing is uncontroverted and the credibility
of witnesses is not in question, we conduct a de novo review of the trial court’s
application of the law to the undisputed facts.”) (citation and punctuation omitted).
The record shows that in September 2015, a Hall County deputy sheriff was on
traffic enforcement duty at an intersection located in Hall County when he observed
Suggs fail to bring his vehicle to a complete stop before entering the highway. The
deputy followed Suggs for approximately two miles, during which he observed Suggs
repeatedly cross the center lane of the highway and make a wide left turn.
1
See Prather v. State, 279 Ga. App. 873, 876 (1) (633 SE2d 46) (2006) (“A
judgment that is right for any reason will be affirmed.”) (citation and punctuation
omitted).
2
The deputy conducted a traffic stop of Suggs’s vehicle and could smell alcohol
emanating from Suggs’s person as he struggled getting his driver’s license out of his
wallet. Suspecting that Suggs was under the influence of alcohol but believing that
it was unsafe to conduct an investigation on the “extremely rough” dirt shoulder in
close proximity to passing vehicles, the deputy instructed Suggs to pull his vehicle
into a parking lot on the opposite side of the roadway. After performing roadside
sobriety tests, the deputy arrested Suggs for DUI-less safe.
Although the initial stop of Suggs’s vehicle was conducted in Hall County,
Suggs and the deputy crossed the county line when they entered the parking lot,
resulting in the investigation and subsequent arrest taking place in Barrow County.
Suggs filed a motion to suppress, arguing that the deputy had no authority to
gather evidence against or arrest him outside of Hall County.2 Relying on the recent
case of Zilke v. State, 299 Ga. 232 (787 SE2d 745) (2016), the trial court agreed that
the deputy exceeded his authority when he effected an arrest across the county line,
2
Suggs also argued that the deputy lacked a reasonable articulable suspicion
to stop his vehicle and lacked probable cause to arrest him following the
investigation, but the trial court rejected Suggs’s arguments and denied his motion to
suppress on those grounds. Suggs has not appealed the trial court’s ruling on the
existence of articulable suspicion or probable cause.
3
but ultimately concluded that suppression was not warranted because the evidence
was not gained as the result of an unreasonable search or seizure.
In Zilke, the Supreme Court of Georgia reviewed a decision from this Court in
which we held that OCGA § 17-4-23 (a)3 authorized a POST-certified campus police
officer to make an arrest for a traffic offense committed in the officer’s presence but
outside of the statutorily-designated territorial jurisdiction for campus police officers.
Id. at 232-233; see State v. Zilke, 333 Ga. App. 344 (773 SE2d 489) (2015). The Zilke
Court reversed our opinion after concluding that the plain language of OCGA § 17-4-
23 (a) could not be reasonably construed to enlarge the territorial boundaries of a
campus police officer. Id. at 234-235. In so doing, the Court disapproved of any prior
cases in which we relied on OCGA § 17-4-23 (a) to “authorize[ ] a law enforcement
officer, including a campus police officer, to make a custodial arrest outside the
3
OCGA § 17-4-23 (a) provides, in pertinent part, that:
A law enforcement officer may arrest a person accused of violating any
law or ordinance governing the operation . . . of [a] motor vehicle[ ] . .
. by the issuance of a citation, provided that the offense is committed in
his presence or information constituting a basis for arrest concerning the
operation of a motor vehicle . . . was received by the arresting officer
from a law enforcement officer observing the offense being committed.
...
4
jurisdiction of the law enforcement agency by which he is employed.” Id. at 234-235;
see Glazner v. State, 170 Ga. App. 810 (318 SE2d 233) (1984) and its progeny.4
Because the deputy sheriff’s authority to arrest Suggs was not derived from
§17-4-23 (a), however, the outcome of Suggs’s motion to suppress is not controlled
by the holding of Zilke. The trial court erred to the extent that it held otherwise.
Historically speaking, this Court held that the power of an officer to effect a
warrantless arrest outside of the territorial boundary of his or her law enforcement
agency for traffic-related offenses was derived from one of two statutes, OCGA §§
17-4-23 (a) and/or 40-13-30. See State v. Heredia, 252 Ga. App. 89, 90 (1) (555 SE2d
91) (2001)3 and cases cited therein. But while the Zilke Court disapproved of the line
4
In addition to Glazner, the Zilke Court expressly disapproved of Sullivan v.
State, 308 Ga. App. 114 (706 SE2d 618) (2011); State v. Bethel, 307 Ga. App. 508
(705 SE2d 860) (2010); Griffis v. State, 295 Ga. App. 903 (673 SE2d 348) (2009);
Duprel v. State, 301 Ga. App. 469 (687 SE2d 863) (2009); Weldon v. State, 291 Ga.
App. 309 (661 SE2d 672) (2008); Delong v. Domenici, 271 Ga. App. 757 (610 SE2d
695) (2005); State v. Picot, 255 Ga. App. 513 (565 SE2d 865) (2002); State v.
Hoover, 253 Ga. App. 98 (558 SE2d 71) (2001); State v. Heredia, 252 Ga. App. 89
(555 SE2d 91) (2001) ; State v. Gehris, 242 Ga. App. 384 (528 SE2d 300) (2000);
Edge v. State, 226 Ga. App. 559 (487 SE2d 117) (1997); Dickerson v. State, 193 Ga.
App. 605 (388 SE2d 736) (1989); Glazner v. State, 170 Ga. App. 810 (318 SE2d 233)
(1984). See Zilke, 299 Ga. at 235, n.2.
3
Zilke disapproved of Heredia to the extent that it relied on OCGA § 17-4-23
(a) or cases that had done so. See Zilke, 299 Ga. at 233, n.2.
5
of cases relying on OCGA § 17-4-23 (a), it did not consider or render any opinion as
to the arrest authority conferred by OCGA § 40-13-30. That statute, specifically
contained within Title 40 and governing traffic offenses, provides as follows:
OCGA § 40-13-30. Authority to make arrests.
Officers of the Georgia State Patrol and any other officer of this state or
of any county or municipality thereof having authority to arrest for a
criminal offense of the grade of misdemeanor shall have authority to
prefer charges and bring offenders to trial under this article, provided
that officers of an incorporated municipality shall have no power to
make arrests beyond the corporate limits of such municipality unless
such jurisdiction is given by local or other law.
Recognizing that the statute’s territorial restriction is limited to arrests made by
municipal officers, we have held that “by implication[,] . . . certain officers (including
deputy sheriffs) have arrest powers for these offenses outside their appointed
territories.” (Citation and punctuation omitted.) Hastings v. State, 211 Ga. App. 873,
874 (441 SE2d 83) (1994); see Heredia, 252 Ga. App. at 90 (1); City of Winterville
v. Strickland, 127 Ga. App. 716, 718-719 (2) (194 SE2d 623) (1972) (under the
predecessor to OCGA § 40-13-30).
6
Here, the deputy sheriff personally observed Suggs commit several traffic
offenses in Hall County and effectuated a stop of Suggs in Hall County. See OCGA
§ 17-4-20 (“An arrest for a crime may be made by a law enforcement officer . . .
[w]ithout a warrant if . . . [t]he offense is committed in such officer’s presence. . . .”).
That the deputy sheriff thereafter crossed into the adjoining county in search of a
safer location to conduct a DUI investigation did not deprive him of the authority to
then arrest Suggs for the crimes committed in his presence. See OCGA § 40-13-30;
Hastings, 211 Ga. App. at 874; Heredia, 252 Ga. App. at 90 (1); City of Winterville,
127 Ga. App. at 718 (2). For that reason, the trial court erred in holding that the
deputy sheriff’s investigation and arrest was unlawful; we nevertheless affirm the trial
court’s denial of Suggs’s motion to suppress.
Judgment affirmed. Ellington, P. J., and Andrews, J., concur.
7