State v. Criswell, A14A0527, Court of Appeals of Georgia, May 29, 2014. Cristopher Criswell was charged with DUI less safe in Holly Springs, Cherokee County, Georgia, and got his case dismissed at a motion to suppress hearing because the Police had no reason to come on his property and arrest him. The State appealed and the Georgia Court of Appeals reversed even though the Trial Judge found the testimony of the police was not credible. The Court of Appeals held that they can review the decision de novo of the trial court and not under the erroneous standard in a motion to suppress as to issues of law.
This is another of the if there is a video its de novo standard of review cases. Apparently, Matthew Jenkins passed out in front of Criswell’s house and when woken up by police told them that he was staying with Criswell. While this was happening Criswell drove up and was observed getting out of his car with poor balance in his driveway. Police approached him to ask if he knew the passed-out driver Jenkins. In the process, Criswell was asked to walk down to the street and perform field sobriety tests which he refused, and subsequently, he was arrested for DUI. The Trial Court found that the Officer’s entry upon Criswell’s property was a second-tier encounter or a police investigatory detention and required articulable suspicion of DUI specifically finding that the Officer could not smell alcohol and see red eyes from 12 to 14 feet away.
The Court of Appeals rejected the Trial Court’s finding of a second-tier encounter and found that police walking onto private property at 1:43 AM is a consensual first-tier police-citizen encounter which is no different than crossing paths on a sidewalk downtown or a delivery man depositing a package or other visitor. I am sure we can expect after midnight UPS delivers and solicitations from Jehovah’s Witnesses and Environmental groups at 3 am now that the Court of Appeals has sanctioned this behavior as normal and customary. The Court of Appeals found that the Police need no articulable suspicion to enter the property in the middle of the night as long as they use the driveway and the front walk.
The Court of Appeals also found that the Holly Springs Police had articulable suspicion to have Criswell walk down to the street to test for fields after threatening jail if he did not and probable cause to arrest him for DUI based upon the Officers observations of normal driving, bloodshot eyes, alcoholic odor, unsteadiness, confusion, and slurred speech. Compare, Corey v. State where the Georgia Court of Appeals found a DUI arrest in an open garage violated the 4th Amendment from March of 2013.
-Author: George Creal