# State v. Brown

> Court of Appeals of Georgia · March 26, 2012 · 315 Ga. App. 154

URL: https://www.frixlaw.com/law-library/cases/9781566

## Case

- **Full name:** The State v. Brown
- **Court:** Court of Appeals of Georgia
- **Decided:** March 26, 2012
- **Citations:** 315 Ga. App. 154; 2012 Fulton County D. Rep. 1288; 726 S.E.2d 654; 2012 Ga. App. LEXIS 337
- **Precedential status:** Published
- **Opinion:** Dissent by Mikell
- **Judges:** Boggs, Miller, Blackwell, Dillard, Barnes, Mikell, Adams
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9781566

## How later opinions describe it (automated extraction)

- holding that officer was acting in supervisory capacity even though he simultaneously also was acting as checkpoint supervisor, screener, and follow-up investigator

## Opinion text

MIKELL, Presiding Judge,
dissenting.
I respectfully dissent. This appeal is governed by Miller v. State. 2 In that opinion, the Supreme Court reversed our court’s finding and said that we had erred by applying a de novo standard of review. In Miller, as in the case at bar, a “clearly erroneous” standard of review applies. 3 As explained by Justice Melton, writing for the majority:
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 his 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 it. 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’s findings and judgment. On numerous occasions the appellate courts of this state have invoked these three principles to affirm trial court rulings that upheld the validity of seizures. These same principles of law apply equally to trial court rulings that are in favor of the defendant and their application to this trial court’s order would demand that the court’s order be affirmed. 4
In the case at bar, the trial court’s ruling was in favor of the defendant, and, as in Miller, it should be affirmed.
The majority here, as did the dissenters in Miller, goes beyond the trial court’s order to pick and choose from the record the facts which it deems important and upon which it would have relied if it had been sitting at nisi prius. Such an approach was expressly rejected by the majority in Miller. 5 Testimony not mentioned by the *161 trial court and not relied on by that tribunal, was impliedly discounted. 6 It cannot be seriously contended that there was no evidence to support the trial court’s ruling. And the applicable standard of review, “clearly erroneous” is, in Georgia, the same as the “any evidence” standard. 7
The critical factual issue to be decided by the trial court was whether Marchetta, when he decided to have a roadblock, was acting as a supervisor or as a “field officer.” The trial court’s finding that Marchetta was a field officer was a possible inference from the evidence and hence must be affirmed by us under the rules announced in Miller and Tate. And all evidence must be construed “most favorably’ to upholding the trial court’s findings. 8
The distinction between “field officer” and supervisor is impossible to understand without knowledge of the reasoning of the United States Supreme Court in roadblock and checkpoint cases. Its consistent holding in considering police attempts to screen motor vehicles and drivers, in cases involving all types of checkpoints including DUI screening, Border Patrol immigration checks, driver’s license inspections, etc., is to allow these interferences with a citizen’s liberty only when the discretion of field officers as to the time, place and duration of the roadblock is as limited as practical. 9 Its fear is that unlimited discretion, indeed any discretion, by field officers will amount to the dreaded and unconstitutional “roving-patrol.” 10 Therefore decisions as to the time, place and duration of a roadblock must be made in advance by a supervisor at the executive level, or in the words of Justice O’Connor, the “programmatic” level. 11 This seemingly hairsplitting distinction is required “to assure that an individual’s reasonable expectation of privacy is not subject to arbitrary invasions *162 solely at the unfettered discretion of officers in the field.” 12 “[I]n the absence of record evidence that the decision to establish the roadblock was made by anyone other than the officers in the field, the roadblock in question has certain characteristics of a roving patrol.” 13 As the United States Supreme Court stated on another occasion,
[t]he location of a fixed [roadblock] is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a [roadblock] where it bears arbitrarily or oppressively on motorists as a class. 14
Problems have arisen in Georgia because of the loose usage in the precedents of the word “supervisor.” The problem is semantic. Most, if not all, field officers have a supervisor. And many Georgia appellate decisions emphasize that the decision was made by a supervisor and that the supervisor had the authority to order that the roadblock in question take place. 15 (Of course he or she had that authority. Otherwise the contested roadblock would not have taken place.) The precedents are misleading because power to authorize the roadblock was never an issue and has no constitutional significance. The key issue is whether the supervisor is acting as an “executive level programmatic” official when he or she authorizes — in advance — the roadblock, or whether he or she was then a field officer.
In Georgia, it is in theory possible for a supervisor properly, as an executive, to order the roadblock and then later to participate in it. 16 So a clearer way to phrase the key question is: was the supervisor at the moment he made the decisions about time, place and duration acting as a field officer or as a nonfield officer, thus avoiding the word “supervisor” altogether. 17
In which role the decision maker was acting at the moment the key decision was made is a question of fact, and one often difficult to *163 discern. 18 When a trial court has made that difficult ruling based on any evidence, we should affirm. The majority is completely correct that the e-mail from Captain Cox is not relevant to the present appeal. And the trial court’s finding that the roadblock was undermanned is similarly irrelevant. None of the federal or state precedents mentions adequate staffing as a constitutional requirement. 19
Decided March 26, 2012
Patrick H. Head, District Attorney, Richele P. Anderson, Anna G. Cross, Assistant District Attorneys, for appellant.
John A. Steakley, for appellee.
The bench and bar should be aware that none of this constitutional hairsplitting applies in an emergency. If for example, three escaped convicts are said to be heading north on State Highway 208, or the co-conspirator of a terrorist says his friend is driving a van full of explosives toward a nuclear power plant, or an “Amber” alert includes the abductor’s route, or witnesses say that the bank robbers are heading out of town on the road to Statesboro, then of course law enforcement may use the time-honored technique of a roadblock. If the roadblock incidentally nabs a drunk driver or a car reeking of marijuana, by all means arrest the culprit. The roadblock and the arrest will be found by the courts to have been valid and constitutional.
In conclusion, the trial court should be affirmed because it found, after hearing from witnesses, that the person who made the decisions, Marchetta, was acting as a “field officer” and not as a “nonfield officer” at the programmatic level when he made the crucial decisions. We should not second guess the trial court based on a cold record. I would affirm the order suppressing the evidence.
I am authorized to state that Presiding Judge Barnes and Judge Adams join in this dissent.
288 Ga. 286 ( 702 SE2d 888 ) (2010).
Id. at 287, n. 1 .
(Footnote omitted.) Id. at 286-287 , quoting Tate v. State, 264 Ga. 53, 54 (1) ( 440 SE2d 646 ) (1994).
Id. at 289 (2). The trier of fact may believe or disbelieve all or any part of the testimony of any witness. See Massengale v. State, 264 Ga. 51, 52 (2) (a) ( 441 SE2d 238 ) (1994). See generally State v. Austin, 310 Ga. App. 814, 822 (1) ( 714 SE2d 671 ) (2011) (Mikell, J., concurring specially).
Id.
Hanson v. Kent, 263 Ga. 124 (2) ( 428 SE2d 785 ) (1993). Accord Turpin v. Todd, 271 Ga. 386, 390 ( 519 SE2d 678 ) (1999); Derrer v. Anthony, 265 Ga. 892, 894 (1) ( 463 SE2d 690 ) (1995).
Miller, supra at 286 (1), quoting Tate, supra at 54 (1).
Illinois v. Lidster, 540 U. S. 419, 424 (II) (124 SC 885, 157 LE2d 843) (2004); City of Indianapolis v. Edmond, 531 U. S. 32, 42-45 (III) (121 SC 447, 148 LE2d 333) (2000); Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 452-453 (110 SC 2481, 110 LE2d 412) (1990); Delaware v. Prouse, 440 U. S. 648, 653 (III) (99 SC 1391, 59 LE2d 660) (1979); United States v. Martinez-Fuerte, 428 U. S. 543, 557-558 (IV) (B) (96 SC 3074, 49 LE2d 1116) (1976).
The definition of a “roving-patrol,” as distinguished from, for example, a “patrol,” seems to have been common knowledge among jurists in Washington, D. C., as early as 1973. Almeida-Sanchez v. United States, 413 U. S. 266, 268 (93 SC 2535, 37 LE2d 596) (1973). Usage of the phrase has now spread to the hinterland. See, e.g., Bennett v. State, 283 Ga. App. 581, 583 ( 642 SE2d 212 ) (2007).
Edmond, supra at 46 (III).
(Citations omitted.) Brown v. Texas, 443 U. S. 47, 51 (II) (99 SC 2637, 61 LE2d 357) (1979), quoted in LaFontaine v. State, 269 Ga. 251, 255 ( 497 SE2d 367 ) (1998) (Sears, J., dissenting and concurring specially).
(Punctuation and footnotes omitted; emphasis supplied.) 4 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 10.8 (d) at 697 (3d ed. 1996).
(Footnote omitted.) Martinez-Fuerte, supra at 559 (IV) (B).
Bennett, supra at 583 ; LaFontaine, supra at 253-254 (3); State v. Golden, 171 Ga. App. 27, 29-30 ( 318 SE2d 693 ) (1984).
Bennett, supra.
Evidence that the key questions of time, place, and duration were settled back at headquarters in the supervisor’s office would be quite persuasive.
The gold standard for compliance with the “nonfield officer” standard was the now superceded Cobb County Police standard operating procedure which required an executive official to order the roadblock one week in advance, in writing, specifying the time, place, and duration. The constitution does not require this degree of perfection.
There is a requirement that the “screening officer” be adequately trained, but no mention of the required minimum staffing. Common sense might suggest that having only two officers at the roadblock in question was inadequate. But staffing is an issue of management and supervision, not of the federal or state constitution.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9781566. Public record. Not legal advice.