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On February 27, 2022, Cherokee County sheriff’s deputy Shauna Murphey responded as backup to another deputy’s traffic stop at about 3 AM. The other deputy was conducting a DUI investigation where some underage passengers were present. When de la Paz got to the scene, he told the deputies that he was picking up some of the juveniles. As Deputy Murphey talked to de la Paz, she “noticed that he smelled of alcohol and had ‘extremely bloodshot and glassy eyes[.]’”
When Murphey asked de la Paz if he’d been drinking, de la Paz “admitted to consuming alcohol ‘within several hours of operating the motor vehicle’ and agreed to participate in a horizontal gaze nystagmus (HGN) field sobriety evaluation.” De la Paz exhibited four of six clues of impairment on the HGN, after which he declined Murphey’s request that he submit to the walk-and-turn and the one- leg-stand standardized field sobriety tests, citing a “broken foot.”
After arresting de la Paz for violating O.C.G.A. § 40-6-391 (a) (1) (DUI by alcohol), Deputy Murphey read him the Georgia Implied Consent Notice (“Notice”) for Suspects Age 21 or Over. The Notice reads, in part: “The State of Georgia has conditioned your privilege to drive upon the highways of this state upon your submission to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs.”
De la Paz refused Deputy Murphey’s request that he submit to a state administered test of his blood. Given de la Paz’s refusal, Deputy Murphey
completed an affidavit and application for a search warrant, stating that she ‘detected the strong odor of alcoholic beverage coming’ from de la Paz, that de la Paz had ‘extremely blood shot and glassy eyes,’ and that de la Paz ‘admitted to consuming alcoholic beverages within several hours’ of driving. ‘Given the totality of the circumstances,’ Deputy Murphey attested that ‘there [was] sufficient evidence of the crime of Driving Under the Influence in the blood of the defendant.’ The affidavit and application ‘request[ed] two vials of blood to be drawn by qualified medical personnel from the defendant, to be placed in a GBI blood alcohol toxicology kit for evidence’ and identified OCGA § 40-6-391 (a) (1), driving under the influence of alcohol, as the suspected crime justifying the warrant. Neither the affidavit nor the application made any reference to suspicion of drug use.
A Cherokee County judge issued a search warrant “for ‘two vials of blood to be drawn by qualified medical personnel from the defendant, to be placed into a GBI blood alcohol toxicology kit for evidence’
of the crime of ‘[OCGA] §40-6-391 (a) (1) DUI– Driving Under The Influence Of Alcohol.’”
The GBI test on de la Paz’s blood showed a blood alcohol content under the legal limit of .08%. Although no law enforcement officer applied for a new search warrant to test de la Paz’s blood for the presence of drugs other than alcohol, on May 10, de la Paz’s blood was tested a second time “for substances other than alcohol.” This second GBI blood test “showed the presence of a muscle relaxer.”
De la Paz was then charged “with one count of driving under the influence (less safe) (alcohol), two counts of driving under the influence (less safe) (drugs), one count of driving under the influence (less safe) (combined influence), and one count of failure to maintain lane.”
In the trial court, de la Paz filed a motion to suppress the results of the second (May 10) GBI test of his blood. De la Paz contended “that the testing of his blood for drugs ‘exceeded the scope of the search warrant.’” The trial court granted de la Paz’s motion based on the fact that “both the search warrant application and the search warrant limited the scope of the search to evidence of a violation under OCGA § 40-6-391 (a) (1), driving under the influence of alcohol.” The State appealed the trial court’s ruling, arguing “that the trial court erred in granting the motion to suppress because it did not read the affidavit for the search warrant in pari materia with the search warrant itself, and because it conflated the drawing of de la Paz’s blood with the analysis of that blood.”
(In pari materia is a Latin term that means “on the same subject.”)
The Court of Appeals rejected the State’s argument:
In this case, it is clear that the search warrant is limited to the testing of de la Paz’s blood for alcohol, with no authorization given for the testing for drugs. Similarly, the affidavit and
application in support of the warrant make no request for, or mention of, the need to test the blood for anything other than alcohol. Accordingly, the State’s argument that the trial court erred in failing to construe the warrant together with the affidavit and application is unpersuasive.
Although the State asserted that the [search warrant] affidavit used “more general wording related to DUI,” the Court of Appeals disagreed:
Deputy Murphey’s affidavit stated that she placed de la Paz under arrest ‘for driving under the influence’ and believed there was ‘sufficient evidence of the crime of Driving Under the Influence of the defendant.’ However, the affidavit specifically notes that de la Paz was arrested for a violation of OCGA
Driving Under The Influence Of Alcohol.’ (Emphasis supplied). Thus, when read in concert with the affidavit and application, the warrant limited the search of de la Paz’s blood to the purpose of obtaining evidence of his blood alcohol level and did not authorize the subsequent testing for drugs.
The Court of Appeals also rejected the State’s claim “that the trial court erred in granting the motion to suppress because it conflated the drawing of de la Paz’s blood with the analysis of that blood.”
The Court wrote:
. . . and ‘police actions in execution of a warrant [must] be related to the objectives of the authorized intrusion[.]’ Because that warrant was limited to alcohol testing and did not contemplate or authorize testing for drugs, the subsequent testing for drugs was unauthorized.
(Citations omitted.)
The Court stressed “that two warrants are not required when law enforcement wishes to test a DUI suspect’s blood. One warrant will suffice, but that warrant’s terms and limitations must be honored by law enforcement and will be enforced by the courts.”
The Court also rejected the State’s claim “that the testing of de la Paz’s blood was reasonable under the circumstances.” Georgia Court of Appeals’ precedent has recognized only two exceptions to the general rule that “an officer may not seize anything not specified in the warrant.” These two exception are: (1) When a warrant includes “a residual clause allowing officers to seize ‘other evidence’ of specifically enumerated crimes,
officers may seize any such evidence discovered during the warrant’s execution.”
(2) If evidence is in plain view:
In de la Paz’s case, however, the State did not argue that either exception was applicable.
The Court concluded: “[I]f law enforcement wished to test de la Paz’s blood for drugs, they were required to either obtain his consent or obtain a warrant authorizing that testing. Here, they did neither.” For these reasons, the Court of Appeals determined that “law enforcement exceeded the scope of the search warrant issued in this case when it tested de la Paz’s blood for the presence of drugs.” Therefore, the Court ruled, the trial court did not err in suppressing the results of the “warrantless drug testing” of de la Paz’s blood (i.e., the May 10th testing of his blood) “for substances other than alcohol.” State v. De La Paz, No. A23A1769, 2024 WL 999389 (Ga. Ct. App., March 8, 2024).
At about 4:15 AM on May 23, 2022, officers with the Waynesboro Police Department received a computer alert about an alarm going off at a Dollar General store. Due to other burglaries at the same location, the officers quickly suspected yet another burglary. Therefore, an officer broadcast a be-on- the-lookout (“BOLO”) “for ‘anybody suspicious walking around with anything’ or ‘anybody suspicious walking or running or anything like that’ in the vicinity of the Dollar General.” In response to the BOLO, Burke County sheriff’s deputies familiar with recent burglaries at other Dollar General stores responded to the scene to assist the Waynesboro officers.
One of the Burke County deputies on the scene saw a man “emerge from the bushes and trees in a direction headed away from the Dollar General.” This man, later identified as Farmer, “looked directly at the deputy, made ‘a loud noise,’ and then proceeded to run between nearby houses.” The deputy quickly relayed Farmer’s description over the radio and another deputy who saw Farmer pursued him on foot. The deputy tackled Farmer, who was trying to climb a six-foot fence. After taking Farmer into custody, “the deputies searched a red lunch bag he had been carrying, which was found to contain 35 unopened packages of Newport cigarettes and a hammer.”
Farmer was charged with second degree burglary and possession of tools for the commission of a crime. He subsequently filed a motion to suppress the prosecution’s evidence, which the trial court denied. The Court of Appeals granted Farmer’s interlocutory appeal of the trial court’s decision.
On appeal, Farmer argued: (1) that “his avoidance of law-enforcement officers did not support a reasonable, articulable suspicion that he was engaged in criminal activity;” (2) that “his mere presence in an area near a suspected crime did not support a lawful detention and arrest;” and (3) that “evidence did not support the [trial] court’s finding that officers observed him in possession of a bag prior to his detention.”
In Farmer’s case, the Court of Appeals determined that “although officers had a reasonable, articulable suspicion to detain Farmer for further investigation, they did not have reasonable, articulable suspicion to search the bag in his possession.”
The Georgia Court of Appeals (or “Court”) has previously “recognize[d] three tiers of police-citizen encounters: consensual encounters; brief investigatory stops that require reasonable suspicion; and arrests that require probable cause.” With respect to Farmer, the Court noted, the deputy who first saw him had no opportunity to interact with Farmer in a first-tier encounter “because before the deputy could even attempt verbal communication or contact, Farmer fled between houses after seeing the deputy.”
As to any second-tier encounter with Farmer, the Court concluded:
To be sure, law enforcement lacked reasonable, articulable suspicion to justify a second-tier encounter—i.e., a brief stop or seizure based upon a reasonable suspicion—solely on the basis that Farmer was walking in the vicinity of a crime at 4:15 a.m., particularly when the dispatched BOLO was only to look for ‘anybody suspicious’ in the area without any identifiable characteristics of a suspect. But when Farmer fled without provocation prior to the deputy making any form of contact, this—combined with the other factors—was sufficient to provide officers with reasonable, articulable suspicion to warrant further investigation.
However, unlike the trial court, which “concluded that a second-tier detention properly occurred, leading to Farmer’s arrest after deputies searched the red bag[,]” the Court of Appeals found that “the search of Farmer’s bag was not supported by reasonable, articulable suspicion.” The Court explained that “[w]hile Farmer was properly detained for purposes of a second-tier investigation, officers immediately engaged in a search of the bag in his possession without reasonable, articulable suspicion to do so.”
The Court of Appeals found that testimony from the suppression hearing
supports Farmer’s argument that the trial court erroneously concluded officers saw the bag prior to his apprehension, and the record lacks any testimony to explain how or why the bag came to be searched during a second-tier encounter (e.g., for officer safety, [or] by [Farmer’s] consent). Indeed, no officer testified to observing a bag or potential weapon in Farmer’s possession when he was first spotted or while he was being pursued. Instead, the bag is only mentioned in testimony regarding what occurred after Farmer was taken into custody, at which point it was searched without any mention of consent or a concern for officer safety. The officers needed—and lacked—a justification to search Farmer’s bag, and so the trial court erred in denying his motion to suppress.
Therefore, the Court reversed the trial court’s denial of Farmer’s motion to suppress. Farmer v. State, No. A23A1677, 2024 WL 1044546 (Ga. Ct.
App., March 11, 2024).
The ALS Court does not accept continuance requests by telephone or in the body of an email. If you need assistance with a continuance motion, please email both Dee ([email protected]) and Brenda ([email protected]) and provide the court date, location, and case name in your email. Continuance motions must be filed with the Court approximately ten days prior to the ALS Hearing date, so please notify us before the ten-day deadline to allow sufficient time for the motion to be filed.
The Department of Public Safety Legal Review is published with the approval of
Colonel W. W. Hitchens III
Legal Division
Joan Crumpler, Director Clare McGuire, Deputy Director
Dee Brophy, ALS Attorney
Nkenge Green, Open Records Attorney Manager Shanna Lewallen, Legal Intern
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