                              FOURTH DIVISION
                                BARNES, P. J.
                          MCMILLIAN and RICKMAN, 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 1, 2016




In the Court of Appeals of Georgia
 A15A1638. REBUFFI v. THE STATE.

      RICKMAN, Judge.

      After a bench trial, Matteo Rebuffi was convicted of driving under the

influence of alcohol to the extent he was a less safe driver.1 See OCGA § 40-6-391

(a) (1). He appeals from the denial of his motion for new trial, contending that the

trial court erred in denying his motion to suppress evidence allegedly unlawfully

obtained. We affirm.

               When an appellate court reviews a trial court’s order concerning
      a motion to suppress evidence, the appellate court should be guided by
      three principles with regard to the interpretation of the trial court’s
      judgment of the facts. 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


      1
          Rebuffi was acquitted of reckless driving.
      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.


(Citations and punctuation omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646)

(1994).

      Construed in favor of the trial court’s findings and judgment, the evidence

showed the following. A police officer working a foot patrol as a courtesy officer at

the apartment complex at which he lived testified that on October 26, 2012, he heard

the engine of a vehicle “revving very loudly,” and he observed the vehicle traveling

at a high rate of speed inside the apartment complex. The officer followed the vehicle,

and heard the tires squealing as it turned right through a roundabout. The officer

approached the vehicle, which was parked in the roadway. He observed several

people exiting the vehicle and running into an apartment building, and he made

contact with the driver before the driver entered the apartment building. The officer

identified Rebuffi in court as the driver of the vehicle.



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      The officer asked Rebuffi why he was speeding; as Rebuffi spoke, the officer

smelled an odor of alcohol emanating from Rebuffi’s mouth. Rebuffi admitted to the

officer that he had been driving, and that he had consumed three alcoholic beverages

that evening. The officer observed that Rebuffi’s eyes were “glassy and slightly

bloodshot.” The officer suspected that Rebuffi had been driving under the influence

of alcohol, and he called the county dispatch and asked for a zone officer to respond

to the scene. The officer instructed Rebuffi to sit on the curb outside; Miranda

warnings were not read to Rebuffi.

      The record reflects that approximately 23 minutes later, a DUI task force

officer arrived at the apartment complex. That officer testified that as he spoke with

Rebuffi, he detected a strong odor of an alcoholic beverage emanating from Rebuffi’s

breath, and that Rebuffi’s speech was slurred. The officer testified that he asked

Rebuffi about the odor of alcohol, and that Rebuffi replied that he had consumed

three alcoholic beverages; Rebuffi’s eyes were bloodshot and glassy; an alco-sensor

test showed that alcohol was present on Rebuffi’s breath; and field sobriety

evaluations revealed that Rebuffi’s ability to drive was impaired. The officer

observed six out of six possible clues of impairment on the HGN evaluation; and

three out of four possible clues of impairment on the one-leg-stand evaluation. The

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officer formed the opinion that Rebuffi was under the influence of alcohol to the

extent that he was less safe to drive, and he placed Rebuffi under arrest.

      The DUI task force officer then read the Implied Consent warning and

requested that Rebuffi submit to a breath test. Rebuffi refused to submit to the test.

The DUI task force officer captured video/audio recording from the time of his arrival

on the scene of his investigation into the incident. That recording was admitted in

evidence, without objection.

      Rebuffi contends that the trial court erred in denying his motion to suppress his

statements to law enforcement officers, the results of the field sobriety tests, and his

refusal to submit to the state’s breath test because he was arrested but was not

informed of his Miranda rights when: (1) the security officer, in a “loud, screaming

voice,” ordered Rebuffi out of his apartment and began questioning him; and (2)

twenty-three minutes elapsed from the time he was detained and instructed to sit on

the curb and the time the DUI task force officer arrived on the scene.

      1. Rebuffi contends that the trial court erred in denying his motion to suppress

his statements to law enforcement officers, the results of the field sobriety tests, and

his refusal to submit to the state’s breath test because he was arrested but was not



                                           4
informed of his Miranda rights when the security officer, in a “loud, screaming

voice,” ordered Rebuffi out of his apartment and began questioning him.

      (a) We first address Rebuffi’s assertion that the security officer ordered him out

of the apartment. The security officer testified that he made contact with Rebuffi after

Rebuffi had parked and exited the vehicle but before he could enter the apartment

building. Rebuffi called to the stand two witnesses who testified that Rebuffi had

entered the apartment; one of the witnesses further testified that as she stood on the

patio, the security officer approached and began yelling at her, demanding the owner

of the apartment to go outside.

      Pointing out conflicts and inconsistencies in the testimony of the witnesses who

testified on behalf of Rebuffi, the trial court found that the security officer made

contact with Rebuffi before he could enter his apartment because it found the security

officer to be more credible on this issue than Rebuffi’s witnesses. In its order denying

Rebuffi’s motion for new trial, the trial court ruled:

      The Defense witnesses were found to not be credible on th[e] issue [of
      whether the security officer had stopped Rebuffi before he could enter
      his apartment or whether Rebuffi had already entered his apartment and
      was ordered out by the security officer]. Therefore, any suppression
      claims based on the allegation of [Rebuffi] being removed from his
      apartment must necessarily fail.

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“The trial court, as the trier of fact, had the sole province of determining the

credibility of witnesses and resolving any conflicts or inconsistencies in the

evidence.” (Citation omitted.) Acree v. State, 319 Ga. App. 854, 855 (737 SE2d 103)

(2013).

       The security officer’s testimony, the trial judge’s specific references to the

contradictory testimony of Rebuffi’s witnesses, and the trial judge’s opportunity to

observe the demeanor of the witnesses were sufficient to support the judge’s

conclusions and this court will not disturb those findings. “[T]he trial court’s

determinations with regard to facts and especially with regard to credibility are

supported by the evidence and we must accept them as they are not clearly

erroneous.” (Citation omitted.) Tate, 264 Ga. at 57 (3).

       (b) Next, we address Rebuffi’s claim that police questioning violated his

Miranda rights. “Miranda warnings are required only if the detention has ripened into

a custodial arrest.” (Citations omitted; emphasis in original) Abrahamson v. State,

276 Ga. App. 584, 585 (623 SE2d 764) (2005). “[A]n officer’s approach to a stopped

vehicle and inquiry into the situation is not a ‘stop’ or ‘seizure’ but rather clearly falls

within the realm of the first type of police-citizen encounter.” (Punctuation and

footnoted omitted.) Bacallao v. State, 307 Ga. App. 539, 541 (705 SE2d 307) (2011).

                                             6
“A first-tier encounter never intrudes upon any constitutionally protected interest,

since the purpose of the Fourth Amendment is not to eliminate all contact between

police and citizens, but simply to prevent arbitrary and oppressive police interference

with the privacy and personal security of individual citizens.” (Footnote omitted.) Id.

      Accordingly, in this case, the security officer was authorized to approach

Rebuffi’s stopped vehicle and ask him why he was driving in the manner that he was,

and no unlawful seizure of Rebuffi occurred, which would have required that he be

given Miranda warnings.

      2. Rebuffi contends that the trial court erred in denying his motion to suppress

his statements to law enforcement officers, the results of the field sobriety tests, and

his refusal to submit to the state’s breath test because he was arrested but was not

informed of his Miranda rights when twenty-three minutes elapsed from the time he

was detained and instructed to sit on the curb and the time the DUI task force officer

arrived on the scene.

      Once the officer smelled alcohol on Rebuffi’s breath, he had the required

articulable suspicion to investigate further and conduct a second-tier investigatory

detention. See id. at 541-542; Blankenship v. State, 301 Ga. App. 602, 604 (2) (a)

(688 SE2d 395) (2009). The record reflects that Rebuffi was detained for

                                           7
approximately 23 minutes; this Court has previously held that a wait of more than

twice this length of time from the time of a traffic stop to the commencement of an

investigative search of a car did not convert the investigation into a custodial

situation. See Harper v. State, 243 Ga. App. 705, 706 (1) (534 SE2d 157) (2000),

citing Aldridge v. State, 237 Ga. App. 209, 213 (3) (515 SE2d 397) (1999). Moreover,

there was evidence that Rebuffi was permitted to sit or stand as the security officer

waited for a DUI task force officer to arrive at the scene; Rebuffi was not told that he

was under arrest; and Rebuffi was not handcuffed.

      Given these circumstances, “a reasonable person could conclude that

[Rebuffi’s] freedom of action was only temporarily curtailed and that a final

determination of his status was simply delayed.” Abrahamson, 276 Ga. App. at 586.

We conclude that the lapse of time between Rebuffi’s detention and the DUI task

force officer’s arrival on the scene did not cause Rebuffi’s detention to ripen into a

custodial arrest which would have required that Miranda warnings be given. See id.

at 586-587.

      Judgment affirmed. Barnes, P. J. and McMillian, J., concur.




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