LICATA v. The STATE.

S18G0563

Supreme Court of Georgia.

Decided: March 11, 2019

Woodrow Scott Smith, W. Scott Smith, P.C., 2060 Equitable Building, 100 Peachtree Street, N.W., Atlanta, Georgia 30303, Matthew K. Winchester, Law Offices of Matthew K. Winchester, 1800 Peachtree Street, NW, Suite 430, Atlanta, Georgia 30309, for Appellant

William Aubrey Finch, Adam Eugene Keller, Forsyth County Solicitor General's Office, 101 East Courthouse Square, Suite 2084, Cumming, Georgia 30040, for Appellee

Jimmonique R. S. Rodgers, Georgia Public Defender Council, 104 Marietta Street, 400, Brandon A. Bullard, James C. Bonner, Jr., Georgia Public Defender Council, 104 Marietta Street, NW, Suite 600, Atlanta, Georgia 30303, David Edward Clark, Clark & Towne, P.C., P.O. Box 2224, Lawrenceville, Georgia 30046, Andrew Santos Fleischman, Ross & Pines, LLC, 5555 Glenridge Connector, Suite 435, Atlanta, Georgia 30342, Joseph Scott Key, Miller & Key, PA, 79 Lawrenceville Street, McDonough, Georgia 30253, for Amicus Appellant

Patricia B. Attaway Burton, Deputy Attorney General, Ross Warren Bergethon, Deputy Solicitor-General, Paula Khristian Smith, David Scott McLaughlin, Senior Assistant Attorneys General, Andrew Alan Pinson, Solicitor-General, Christopher M. Carr, Attorney General, Tina Michelle Piper, Jameson B. Bilsborrow, Assistant Attorneys General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Peter J. Skandalakis, Robert Wright Smith, Jr., Gilbert Alexander Crosby, Prosecuting Attorneys Council of Georgia, 1590 Adamson Parkway, 4th Floor, Morrow, Georgia 30260, George Herbert Hartwig, III, District Attorney, Houston County District Attorney's Office, 201 North Perry Parkway, Perry, Georgia 31069, Lee Darragh, District Attorney, Northeastern Circuit District Attorney's Office, P.O. Box 1690, Gainesville, Georgia 30503, Matthew Carl Krull, Solicitor-General, Douglas County Solicitor General's Office, 8700 Hospital Drive, 3rd Floor, Douglasville, Georgia 30134-2264, Samuel Richard d'Entremont, A.D.A., Gwinnett County District Attorney's Office, 75 Langley Drive, Lawrenceville, Georgia 30046, for Amicus Appellee

Peterson, Justice.

**498We granted certiorari to consider what, if any, *Miranda*-type warning law enforcement must give before asking a suspect in custody to perform acts protected by Georgia's right against compelled self-incrimination under Article I, Section I, Paragraph XVI of the Georgia Constitution of 1983 ("Paragraph XVI"), and whether a suspect in custody is entitled to the advice of counsel when asked to submit to a state-administered breath test. The first question rested on the premise that the suspect in this case, Michael Licata, was in custody at the time he was asked to undergo field sobriety tests, but a review of the record reveals that Licata was not actually in custody. Therefore, we affirm the Court of Appeals's ultimate conclusion that the field sobriety tests were admissible, without answering the first question. We also decline to resolve the issue regarding the advice of counsel, because it was pertinent only to the admissibility of Licata's refusal to submit to a breath test, and this determination must be **499reconsidered in the light of our recent opinion in *Elliott v. State*, 305 Ga. 179, 824 S.E.2d 265, 2019 WL 654178 (Case No. S18A1204, decided February 18, 2019), wherein we concluded that refusal evidence is inadmissible. Therefore, we vacate the Court of Appeals' opinion regarding the admissibility of the refusal evidence and remand for further proceedings. *96The relevant facts are not disputed. Licata's vehicle was stopped by police because it matched the description of a vehicle that had recently been in an accident and had significant front-end damage. Prior to the stop, sparks were coming off the asphalt as Licata had been driving on the vehicle's rims. The police officer who ultimately arrested Licata approached Licata and confirmed with Licata that Licata had been involved in an accident. The arresting officer told Licata that he wanted to discuss the accident but he wanted to read *Miranda* warnings to Licata first. After doing so, the arresting officer asked Licata several questions about the accident. A short time later, the officer asked Licata to perform field sobriety tests. Licata complied and failed the tests. The officer then placed Licata under arrest for DUI less safe, read the implied consent warning, and asked Licata if he would submit to a breath test. Licata twice asked to call his attorney but was denied that request. Licata ultimately responded that he would not submit to a breath test.

Following his arrest and prior to trial, Licata sought to suppress the results of his field sobriety tests and evidence that he refused to submit to the breath test. The trial court granted Licata's motion, concluding that the field sobriety evaluations should be suppressed because Licata was in custody and was not informed that he had a right to refuse to perform incriminating acts, a right protected by Paragraph XVI. See *Olevik v. State*, 302 Ga. 228, 806 S.E.2d 505 (2017). The trial court ruled that Licata's refusal to submit to the breath test should be suppressed because he had requested an attorney pursuant to the *Miranda* warnings read to him.

The State appealed, and the Court of Appeals reversed. *State v. Licata*, 343 Ga. App. 874, 806 S.E.2d 292 (2017). We agreed to hear Licata's challenges on certiorari.

1. In reversing the trial court's suppression of the results of Licata's field sobriety tests, the Court of Appeals relied on our decision in *Price v. State*, 269 Ga. 222, 498 S.E.2d 262 (1998), where we stated that "[d]ecisions of this Court and the [C]ourt of [A]ppeals have routinely held that under Georgia law *Miranda* warnings must precede a request to perform a field sobriety test only when the suspect is in custody." Id. at 225 (3), 498 S.E.2d 262 (punctuation and footnote omitted). The Court of Appeals did not address whether Licata was in custody but held that the trial court erred in concluding that Paragraph XVI requires police to give a warning that suspects have **500a right not to incriminate themselves through an affirmative act.1 Id. at 877-878 (2), 806 S.E.2d 292. The Court of Appeals thought there was "at least arguably" tension between *Price* and this Court's construction of Paragraph XVI in cases like *Olevik*, and properly concluded that any tension was to be resolved by this Court. See id. at 878 (2), 806 S.E.2d 292.

We asked the parties to address this issue by briefing whether *Miranda*-type warnings are required before a suspect in police custody is asked to perform acts protected by Paragraph XVI. But Licata was not actually in custody when he was asked to undergo the field sobriety tests. Even under *Price*, *Miranda* warnings for field sobriety tests are required only when a person is in custody. *Price*, 269 Ga. at 225 (3), 498 S.E.2d 262 (stating that warning is required "only when the suspect is *in custody,* " and holding that, because the defendant was in custody, the failure to give *Miranda* warnings rendered the field sobriety test evidence inadmissible (emphasis added; footnote and punctuation omitted)).

Our conclusion that Licata was not in custody is based upon the undisputed facts and a video recording of the roadside interrogation.2 Generally, mere roadside questioning *97during a traffic stop does not constitute a custodial situation. See, e.g., *Berkemer v. McCarty*, 468 U.S. 420, 437-440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). The United States Supreme Court has explained that although a traffic stop "significantly curtails" the driver's freedom of movement, such stops are not generally thought to be custodial for two reasons. First, the detention attendant to a traffic stop is usually temporary and brief, with most drivers expecting to answer a few questions and maybe receive a citation before being allowed to continue on their way, while a stationhouse interrogation, in comparison, is often prolonged and the detainee usually knows the questioning will not cease until he provides sufficient information to the police. Id. at 437-438, 104 S.Ct. 3138. Second, because traffic stops are conducted in public and usually only by one or two police officers, there is less risk that "unscrupulous [officers] will use illegitimate means to elicit self-incriminating statements" and the driver's vulnerability or fear of abuse is **501dampened. Id. at 438-439, 104 S.Ct. 3138. Because of these two features, "a person detained as a result of a traffic stop is not in *Miranda* custody because such detention does not sufficiently impair the detained person's free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights." *Howes v. Fields*, 565 U.S. 499, 510, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012) (citing *Berkemer*, 468 U.S. at 437, 104 S.Ct. 3138 ).

With this backdrop, we must examine the totality of the circumstances to determine whether "a reasonable person in [Licata's] position would have thought the detention would not be temporary." *Price*, 269 Ga. at 225 (3), 498 S.E.2d 262 (footnote and punctuation omitted). In determining whether a suspect is in custody, we must consider the totality of the circumstances without regard for the subjective views of the suspect or the interrogating officer. See *Smith v. State*, 297 Ga. 667, 668-669 (2), 777 S.E.2d 453 (2015) ; *Sosniak v. State*, 287 Ga. 279, 280 (1), 695 S.E.2d 604 (2010). No one factor is dispositive in deciding the custody issue, although several important considerations to keep in mind include: "the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning." *Howes*, 565 U.S. at 509, 132 S.Ct. 1181 (citations and punctuation omitted). The reading of *Miranda* warnings is another factor to consider, but those warnings alone do not transform a noncustodial interrogation into a custodial one. See, e.g., *Sprosty v. Buchler*, 79 F.3d 635, 642 (7th Cir. 1996) (holding that warning is relevant but not dispositive to custody); *Tukes v. Dugger*, 911 F.2d 508, 515 n.10 (11th Cir. 1990) (reading of *Miranda* rights may be considered); 2 Wayne R. LaFave, Criminal Procedure § 6.6 (f) (4th ed. 2004) ("The argument that the giving of some of the *Miranda* warnings itself establishes that the situation was custodial has been rightly rejected, for it would be bizarre if such solicitude for a suspect not actually in custody were deemed to make the suspect's statement subject to suppression under *Miranda*.").

With these factors in mind, the trial court did not explain why it concluded that Licata was in custody at the time he was asked to perform the field sobriety tests. It appears that the trial court concluded that the detention was not temporary because Licata was visibly impaired, his vehicle was not safe to drive, and the arresting officer asked Licata to move a few feet in order to perform the field sobriety tests. But as discussed above, these factors did not amount to a custodial situation. See *Berkemer*, 468 U.S. at 437-440, 104 S.Ct. 3138 (although a traffic stop "curtails the 'freedom of action' of the driver" and drivers typically do not feel free to disobey a police directive, the traffic stop is not a per se custodial interrogation triggering *Miranda* ).

**502Nothing else about the roadside interrogation shows that Licata's detention "sufficiently impair[ed] [his] free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights." *Howes*, 565 U.S. at 510, 132 S.Ct. 1181. It is undisputed that Licata was not handcuffed *98when the arresting officer asked him to undergo field sobriety tests. The trial court found, and the record confirms, that the arresting officer had not conveyed to Licata that he was going to arrest Licata. The video recording also shows that the police officer did not act in a hostile or coercive manner, did not draw his weapon, or issue threats. See *Sosniak*, 287 Ga. at 281 (1), 695 S.E.2d 604 (noting that detective was not hostile or accusatory).

The fact that the arresting officer read *Miranda* warnings to Licata did not make the detention a custodial one in the absence of other factors. Compare *Sprosty*, 79 F.3d at 642-643 (defendant was in custody where at least one officer guarded him for nearly three hours while four other officers conducted a search and officers persistently requested that defendant lead them to incriminating evidence) with *Tukes*, 911 F.2d at 515 (defendant not in custody because he voluntarily went to stationhouse and his freedom of action had not been restricted). The arresting officer gave the *Miranda* warnings soon after making the initial contact with Licata, and the entire duration of that officer's encounter with Licata was short. According to the trial court, the arresting officer approached Licata at about 9:41 p.m., at which point the *Miranda* warning was given, and Licata was arrested and read the implied consent notice about 10 minutes later.3 As described above, there was no significant restraint of Licata's freedom of movement during this encounter. These circumstances fall short of establishing that Licata was in custody. See *Berkemer*, 468 U.S. at 441-442, 104 S.Ct. 3138 (defendant was not in custody where he was never restrained prior to arrest, never told detention would not be temporary, and "a short period of time elapsed between the stop and the arrest"); *Mitchell v. State*, 301 Ga. 563, 568-569 (2), 802 S.E.2d 217 (2017) (a reasonable person would not have believed he was in custody where the defendant was not placed in handcuffs and the officer "did not indicate by his words or actions that he was going to **503arrest [the defendant]"). Compare *Price*, 269 Ga. at 225 (3), 498 S.E.2d 262 (a reasonable person would have believed detention was not temporary where, among other things, the officer informed the defendant she was going to jail regardless of whether she performed field sobriety tests).

Because Licata was not in custody, *Price* does not apply, and the police were not required to give any *Miranda* warning, much less one tailored to cover Paragraph XVI rights, before asking Licata to undergo the field sobriety tests. Therefore, although we disagree with the Court of Appeals' rationale, we affirm its reversal of the trial court's suppression of Licata's field sobriety tests.4

2. The Court of Appeals also reversed the suppression of Licata's refusal to submit to a breath test. *Licata*, 343 Ga. App. at 879-880 (3), 806 S.E.2d 292. Given the pretrial posture of this case and our recent ruling in *Elliott* that the State may not use a suspect's refusal to submit to a breath test at the suspect's criminal trial, we vacate this portion of the Court of Appeals' opinion and remand for further proceedings.

*Judgment affirmed in part, vacated in part and remanded in part.*

All the Justices concur, except Warren, J., not participating and Bethel, J., disqualified.

1

The State argued before the trial court and to the Court of Appeals that Licata was not in custody at the time he was asked to perform field sobriety tests. The Court of Appeals pretermitted the issue before concluding that the trial court erred in finding that *Miranda* warnings were required to cover the right not to perform incriminatory acts under Paragraph XVI. See *Licata*, 343 Ga. App. at 877 (2), 806 S.E.2d 292.

2

Although we typically defer to the trial court's factual findings in this context, when, as here, the controlling facts are not in dispute, because they are discernible from a video, our review is de novo. See, e.g., *Smith v. State*, 297 Ga. 667, 669 (2), (777 S.E.2d 453) (2015).

3

The trial court found that prior to the arresting officer's arrival, Licata had been detained by another police officer for a brief period of time. There is no evidence that this other officer restrained Licata or told him he would be arrested, and the video recording from the arresting officer's vehicle shows that Licata was left unattended and unrestrained while this officer relayed his observations to the arresting officer. See *Mitchell v. State*, 301 Ga. 563, 569 (2), 802 S.E.2d 217 (2017) (holding that defendant was not in custody because, among other things, he was left alone while the officer stepped aside to consult with the sheriff's deputy).

4

We leave for another day whether *Price* was rightly decided.