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Georgia DUI Motion to Suppress Field Sobriety Tests by:

       Allen M. Trapp, Jr.
P.O. Box 2206     Georgia Bar No. 715535
Carrollton, Ga. 30112
(770) 830-8560

www.topgn-lawyer.com

  
    STATE COURT OF CARROLL COUNTY                                STATE OF GEORGIA

STATE OF GEORGIA

v.        Docket No. ________________

KATIE O. McGUIGAN
Defendant.

  DEFENDANT'S BRIEF IN SUPPORT OF MOTION TO SUPPRESS: MOTION IN LIMINE

 The Defendant takes the position that, in the event the Court rules that she was not in custody when she submitted to field sobriety tests,  the two issues that should nevertheless be addressed are:
 1.  Whether the performance of field sobriety tests at the insistence of a police officer is a warrantless search of the Defendant.
  Suggested Answer:  Yes.
 2.  Whether the Defendant's performance of field sobriety tests in this case was involuntary as a consequence of the arresting officer's coercion or deceit, so that all testimony regarding the performance and evaluation of the field sobriety tests should be suppressed as well as all "fruit of the poisonous tree."
  Suggested Answer:    Yes.

   ARGUMENT AND CITATION OF AUTHORITIES

 An analysis of this case must begin with the well established principle that "...searches and
seizures without a warrant are presumptively unreasonable. . ."   Arizona v. Hicks, 480 U.S. 321, 327, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347, 355 (1987). When the people of the United States decided to include the Fourth Amendment in the Bill of Rights, they did so for a reason.  They wanted to place constraints on the power of the police to conduct searches and seizures based on no more than a general warrant, because they knew that such unchecked power could lead to serious abuses.  Because so many Fourth Amendment cases involve searches of motor vehicles and buildings, we sometimes lose sight of the fact that the Fourth Amendment protects the legitimate expectations of privacy of persons, not places
 Georgia case law also makes it abundantly clear that the burden is on the State to demonstrate that consent to search is voluntary and not the result of duress or coercion, express or implied.  E.g., Lombardo v. State, 187 Ga. App. 440 (1988).  Following  Florida v. Bostwick, 501 U.S. 429,111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991), our Court of Appeals has held that," Whether a person is free to leave' is not the sole basis for determining whether a defendant's consent to search was freely and voluntarily given.  The more appropriate inquiry is whether a reasonable person would feel free to decline the officers' request (to search) or otherwise terminate the encounter.' "   Weeks v. State, 206 Ga. App. 431 (1992).  
 Any examination of a person with a view to discovering evidence of guilt to be used in a prosecution of a criminal action is a search.  State v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (1986).  The field sobriety tests conducted at roadside constitute a search.  Id. at 274.  When confronted with the question of whether field sobriety tests are a search, the Indiana Court of Appeals observed, "We do not hesitate to answer this question in the affirmative."  Ackerman v. State, 774 N.E.2d 970, 980 (Ind. App. 2002).  The court went on to explain that in the law of search and seizure the term "search" implies prying into hidden places for that which is concealed.  "FST's are designed to uncover hidden evidence of impairment that the OWI suspect seeks to conceal.  Quite simply, FST's allow police to discover impairment in some persons who are not obviously impaired."  Id.  
 Similarly, it has been held that FST's constitute a search because police conduct that significantly impairs an individual's interest in freedom from scrutiny constitutes a search.  State v. Nagel, 320 Or. 24, 880 P.2d 451 (1994).  The court also observed that when administering field sobriety tests an officer creates an unusual situation in which he can obtain evidence that is not otherwise subject to scrutiny either by a police officer or by private individuals.  Id. At 30.  Going  even farther, it has been held that a roadside sobriety test, being a search, can be administered only when there is probable cause to arrest the driver for driving under the influence.  People v. Carlson, 677 P.2d 310, 317-18 (Colo. 1984).
 The Defendant in the instant case does not believe it is necessary for this Court to determine  whether a field sobriety test can only be administered when there is probable cause to arrest for DUI.  The issues here are simply whether administration of FST's constitute a search and whether the performance of same in this case was the consequence of coercion.  Clearly, the Defendant was examined with a view to discovering evidence of guilt to be used in a prosecution of a criminal action.  Just as obviously, she engaged in exercises designed to uncover hidden evidence of impairment that a DUI suspect would ordinarily seek to conceal.  It is also evident that the arresting officer created an unusual situation in which he could obtain evidence that was not otherwise subject to scrutiny either by a police officer or by private individuals.  Therefore, this Court should rule that the administration of field sobriety tests constitutes a search.
 This still leaves open the question of whether the officer in this case coerced Ms. Lazenby into submitting to these exercises.  The office never asked for her consent to participate in what he characterized as "field sobriety techniques," nor did he her advise her that performing these "techniques" was voluntary.  Ms. Lazenby never validly consented to a search.  "Mere submission to lawful authority does not equate to consent; rather, valid consent must be unequivocal and
 specific, and freely and intelligently given."  U.S. v. Manuel, 992 F. 2d 272, 275 (10th Cir. 1993).  In other words, mere acquiescence to a show of authority by police officers does not constitute valid consent.  State v. Harris, 236 Ga. App. 525 (1999).  That being the case, the search of Ms. Lazenby by way of the field sobriety tests constituted an unlawful search. 
 The Defendant expects that the officer will admit that upon her completion of the horizontal gaze nystagmus, walk and turn, and one leg stand, he had not yet decided to arrest her and, in fact, lacked probable cause to effect a custodial arrest at that point.  Nevertheless, he obtained a breath sample from her for testing in an alco-sensor, a portable breath testing device.  The use of such a device constituted a search because it measured deep lung air.  In Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 616-617 (1989), the U.S. Supreme Court held, "Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or deep lung' breath for chemical analysis, ...implicates similar concerns about bodily integrity and, like the blood alcohol test...considered in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed. 2d 908  (1966), should also be deemed a search."  Recognizing that the term "breathalyzer" has in every day judicial pronouncements become a generic term for a breath test, the Supreme Court's holding in Skinner clearly encompasses an alco-sensor.  Recently, the Supreme Court of our sister state of Kansas has held that a preliminary breath test that requires the production of alveolar air for chemical analysis is a search subject to the strictures of the Fourth Amendment, and the State must prove by a preponderance of the evidence that a consent to search was voluntary.  State v. Jones, 279 Kan. 71 (2005).  Furthermore, mere acquiescence to a preliminary breath test does not establish voluntary consent.  Id.
 The exclusionary rule which prohibits the use of evidence obtained from an accused in violation of the Fourth Amendment prohibits also the indirect use of such evidence.  Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed.2d 441 (1963).  Since the search was unlawful,
all evidence flowing therefrom should be suppressed, including by not limited to any evidence of the Defendant's performance of field sobriety tests and the results of any state-administered test of her blood or other bodily substances. 
 Respectfully submitted this the _____ day of ______________________, 2005.

       ___________________________
       Allen M. Trapp, Jr.
P.O. Box 2206     Georgia Bar No. 715535
Carrollton, Ga. 30112
(770) 830-8560

    CERTIFICATE OF SERVICE

 I hereby certify that I have this day served a copy of the foregoing Defendant's Brief in Support of Motion to Suppress: Motion in Limine on the Solicitor of Carroll County or his
assistant by personal delivery.
 This the _____________ day of __________________________, 2005.

      __________________________
      Allen M. Trapp, Jr.
P.O. Box 2206    Georgia Bar No. 715535
Carrollton, Ga. 30112
(770) 830-8560