SECOND DIVISION

ANDREWS, P. J.,

MCFADDEN and RAY, 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 24, 2015

In the Court of Appeals of Georgia

A14A2188. CHAVEZ-ORTEGA v. THE STATE.

RAY, Judge.

Jonathan Chavez-Ortega has been charged by accusation with driving under

the influence of alcohol, reckless driving, and racing. We granted Chavez-Ortega’s

application for interlocutory review of an order denying a motion to suppress his

custodial statements. Because we find that Chavez-Ortega was in custody when he

invoked his right to remain silent, but that the police nonetheless continued to

question him which led to the incriminating evidence which he seeks to suppress, we

reverse the trial court’s denial of Chavez-Ortega’s motion to suppress.

Three fundamental principles must be followed when conducting an

appellate review of a motion to suppress. First, when a motion to

suppress is heard by the trial judge, that judge sits as the trier of facts.

The trial judge hears the evidence, and [her] findings based upon
conflicting evidence are analogous to the verdict of a jury and should

not be disturbed by a reviewing court if there is any evidence to support

them. Second, the trial court’s decision with regard to questions of fact

and credibility must be accepted unless clearly erroneous. Third, the

reviewing court must construe the evidence most favorably to the

upholding of the trial court’sfindings and judgment. . . . Where the issue

turns on the question of whether a trial court committed an error of law

in granting a motion to suppress, we apply a de novo standard of review.

(Citations and punctuation omitted.) Williams v. State, 329 Ga. App. 650, 650 (766

SE2d 82) (2014). 

The evidence adduced at the suppression hearing showsthat Officer Archevald

and Officer Denson,with the CobbCountyPolice Department, observed two vehicles

make a turn at a high rate of speed on wet road conditions. Both officers heard tires

squealing, and the cars appeared to be racing as they continued to accelerate along

Barnes Mill Road. The officers activated their sirens and emergency lights to initiate

a traffic stop as both cars turned onto Ven Villa Drive, but only the car driven by

Gerald Sanders stopped. The second car continued down the road. Chavez-Ortega

was later seen walking back to the traffic stop location. When an officer approached

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Chavez-Ortega, he noticed that Chavez-Ortega smelled of alcohol and had watery,

bloodshot eyes. 

Officer Taylor responded to the scene as backup. He briefly spoke to ChavezOrtega and asked him where he was coming from. When Chavez-Ortega stated that

he was walking from a friend’s house, but could not provide details as to where the

friend lived, Officer Taylor detained him in handcuffs and placed him in the back of

the patrol car while the other two officers were finishing the investigation of Sanders.

The State played a video recording of the interior of the patrol car during the

suppression hearing. The visual field of the camera was trained toward the front of

the patrol car, but the audio portion is audible. Officer Taylor informed ChavezOrtega that he was “not arrested yet” and that he would be “free to go” if they did not

find his car nearby. Officer Denson then questioned Chavez-Ortega about whether he

had been drinking, where he had been that evening, and if he had been driving the

other car. Chavez-Ortega admitted to drinking at a buddy’s house nearby, but stated

that he had not been driving. Officer Taylor acknowledged at the suppression hearing

that Chavez-Ortega was “detained” and not free to leave once he was handcuffed and

placed in the patrol car. Officer Denson then arrived and questioned Chavez-Ortega

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about where he lived and how old he was. Chavez-Ortega quickly stated that he did

not want to talk, and Officer Denson advised him of his Miranda rights. 

The video recording shows that at the conclusion of the Miranda warning,

Chavez-Ortega can be heard to tell the officer “I don’t want to talk to you.” It appears

from the transcript that the trial court could not understand this statement during the

suppression hearing due to the poor quality of the audio recording. 

Officers continued to questionChavez-Ortega about where his car waslocated.

Chavez-Ortega again stated that he had not been driving and that he was coming from

a friend’s house, but admitted that he was drunk. Once taken outside the patrol car,

Chavez-Ortega again stated that he did not want to talk. 

During the course of the investigation, Sergeant Paul Rushing, who also

responded as backup, located Chavez-Ortega’s vehicle up the street. He testified that

the driver’sfloor mat was wet, but that the passenger’sside was only dirty, indicating

that only one person had been in that car. 

After indictment, Chavez-Ortega filed a motion to suppress the statements he

had made before and after he was issued a Miranda warning. The trial court denied

the motion, finding, inter alia, that Chavez-Ortega was not in custody during his

questioning, that Officer Denson recited the Miranda warning to Chavez-Ortega “as

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a safety precaution[,]” and that his statements were made voluntarily and without

coercion. 

1. Chavez-Ortega arguesthat the trial court erroneously determined that he was

not “in custody” when he made statements to officers prior to receiving the Miranda

warnings and that the trial court erred in denying his motion to suppress those

statements. We agree.

“Miranda warnings are required when a person is interviewed by an

investigating officer while in custody.” (Citation omitted.) Lengsfeld v. State, 324 Ga.

App. 775, 781 (1) (b) (751 SE2d 566) (2013). When “determining whether a suspect

was in custody for Miranda purposes, a court must examine all of the circumstances

surrounding the interrogation, but the ultimate inquiry is simply whether there was

a formal arrest or restraint on freedom of movement of the degree associated with a

formal arrest.” (Citation and punctuation omitted.) Teele v. State, 319 Ga. App. 448,

453 (2) (a) (738 SE2d 277) (2012). Whether a suspect is in custody “does not depend

upon the subjective views harbored by either the interrogating officers or the person

being questioned. Instead, the only relevant inquiry is how a reasonable person in the

suspect’s position would have understood the situation.” (Citations and punctuation

omitted.) Id. “A reasonable person is one neither guilty of criminal conduct and thus

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overly apprehensive nor insensitive to the seriousness of the circumstances.”

(Punctuation and footnote omitted.) State v. Mosley, 321 Ga. App. 236, 238 (739

SE2d 106) (2013).

Here, Officer Taylor approachedChavez-Ortega assoon as he saw himwalking

down the road and, after questioning Chavez-Ortega about where he was coming

from, placed him in handcuffs and put him in the back of the police cruiser. At the

suppression hearing, officers even admitted that Chavez-Ortega was “detained” and

“basically taken into custody,” and was not free to leave when he was in the police

cruiser. Although Officer Taylor informed Chavez-Ortega that he was “not arrested

yet[,]” we fail to see how a reasonable person in Chavez-Ortega’s position would not

have considered himself to be under arrest, given that he was handcuffed, placed in

the back of a patrol car and informed that officers were searching for his vehicle. See,

e. g., Teele, supra at 453 (2) (a) (defendant was in custody for Miranda purposes

when she was approached by officers at gunpoint, ordered to lie on the ground,

handcuffed and placed in the backseat of a marked patrol car); State v. Kendrick, 309

Ga. App. 870, 871-872 (711 SE2d 420) (2011) (State did not contest that defendant

was “in custody” for Miranda purposes once he was handcuffed and confined in the

backseat of a police cruiser); Mayberry v. State, 267 Ga. App. 620, 622 (600 SE2d

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703) (2004) (defendant’s statement was made in custodial circumstances when

defendant’s car was surrounded by police cruisers, he was handcuffed to an

ambulance gurney while officers accompanied him to the hospital, and he was later

handcuffed to a stretcher in the hospital). Compare Harper v. State, 243 Ga. App.

705, 706 (1) (534 SE2d 157) (2000) (although suspect had been detained pursuant to

a traffic stop and wassuspected for DUI, he was not in custody for Miranda purposes

when he was allowed to walk around, was not placed in the back of a police car and

was not handcuffed);Campbell v. State, 255 Ga. App. 502, 504-505 (1) (a) (565 SE2d

834) (2002) (defendant was not in custody for Miranda purposes when he was briefly

detained in the back of a patrol car and officers asked if there were drugs in his car

when an audio recording of the detention revealed that the defendant believed that the

investigation would result in his release and that he would soon regain freedom of

movement).

Officers conducting an ordinary traffic stop or arriving at the scene of

suspected criminal activity may conduct a “‘general on-the-scene investigation,’

including making inquiries solely to determine whether there currently is any danger

to them or other persons.” (Citations omitted.) State v. Wintker, 223 Ga. App. 65, 67

(476 SE2d 835) (1996). These inquiries may even require them to temporarily detain

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someone attempting to leave before the preliminary investigation is completed, and

such inquiries and detention “do not trigger the requirements of Miranda, unless the

questioning is aimed at obtaining information to establish a suspect’s guilt.”

(Citations and punctuation omitted.) Id. Accord Campbell, supra at 505-506 (1) (b)

(briefly placing a detainee in the back of a patrol car in order to further a legitimate

investigation does not constitute “custody” for Miranda purposes). Here, however,

the officers’ inquiries went beyond a general on-the-scene investigation. The

questions posed by officers asking Chavez-Ortega where he had been, if he had been

drinking, and if he had been driving the other speeding car, were “clearly aimed at

obtaining information to establish [his] guilt.” (Punctuation and citation omitted.)

Wintker, supra at 68-69. Officer Taylor’s question to Chavez-Ortega if he was the

driver of the other car is clearly directed at eliciting information to establish guilt. See

Id. (although told she was not under arrest, suspect was in custody for Miranda

purposes when she was separated from other passengers, confined to the back of a

locked patrol car, observed a police dog and his handler come to the scene and was

questioned about matters aimed at establishing her guilt).

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Accordingly, we find that the trial court erred in finding that statements

Chavez-Ortega made to officers were made in noncustodial circumstances. Such

statements are inadmissible and must be excluded at trial. See McDougal v. State, 277

Ga. 493, 498 (1) (A) (591 SE2d 788) (2004). 

2. Chavez-Ortega next asserts that the trial court erred in denying his motion

to suppress the statements he made to Officer Denson after he had been read his

Miranda rights. We agree.

“An arrested person has the constitutional right to remain silent, but he must

clearly assert his desire to remain silent to exercise that right. Police must honor an

arrested person’sright to remain silent if the person clearly and unambiguously states

that he wants to end questioning.” (Citations omitted.) Ridley v. State, 290 Ga. 798,

802 (4) (725 SE2d 223) (2012). 

Here, our review of the audio portion of Chavez-Ortega’sinterrogation reveals

that he clearly informed Officer Denson that he did not wish to speak to him prior to

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being read his Miranda rights, and that he stated that he did not want to talk to the

officers immediately after being informed of his Miranda rights.

1

It is clear that the statements made by Chavez-Ortega after being read his

Miranda rights resulted from direct interrogation by the officer, and were not the

spontaneous and unsolicited statements of a person who was anxious to explain.

Directly after reading the Miranda warning, and after Chavez-Ortega had twice

informed the office that he did not wish to speak to him, Officer Denson began to ask

Chavez-Ortega questions. However, after Chavez-Ortega made these unequivocal

assertions of his right to remain silent, all questioning of him should have ceased.

Green, supra at 571-572 (2). Indeed, “[a] person being subjected to custodial

interrogation may at any time express his or her desire to remain silent and, thereby,

end the interrogation. Any exercise of this right to silence must be ‘scrupulously

honored.’” (Punctuation and footnote omitted.) Id. at 571-572 (2). Instead of honoring

1 We again note that it appearsthat, due to the poor quality of the recording, the

trial court was unable to hear Chavez-Ortega’s post-Miranda statement that he did not

wish to speak with the officer. In reviewing the videotaped interview, however, this

Court owes no deference to the trial court’s findings of fact “because it was not the

subject of testimony requiring the trial court’s weighing of credibility or resolving of

conflicts in the evidence.” (Citations omitted.) Green v. State, 275 Ga. 569, 573 (2)

n. 11 (570 SE2d 207) (2002). Accord Lyons v. State, 244 Ga. App. 658, 661-662 (1)

(535 SE2d 841) (2000). 

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Chavez-Ortega’s right to remain silent, Officer Denson continued to question him.

Accordingly, any responses by Chavez-Ortega after he stated his wished to remain

silent should have been suppressed at trial. See Webb v. State, 284 Ga. 122, 125 (3)

(663 SE2d 690) (2008).

Judgment reversed. Andrews, P. J., and McFadden, J., concur.

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