                             THIRD DIVISION
                            ELLINGTON, P. J.
                    DILLARD, P. J. and MCFADDEN, P. J.

                    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


                                                                     January 9, 2017




In the Court of Appeals of Georgia
 A15A1324. THE STATE v. ROSAS.

      MCFADDEN, Presiding Judge.

      Penny Ann Rosas was indicted for one count of child molestation. She moved

to suppress statements that she had made to a police officer, and the trial court

granted the motion on the ground that Rosas had not been informed of her rights

under Miranda v. Arizona, 384 U. S. 436 (86 SCt. 1602, 16 LE2d 694) (1966). The

state appealed from that order, asserting that Rosas was not in custody at the time she

made the statements and therefore a Miranda warning was not required.

      This court dismissed the appeal as untimely on the basis that it was brought

under OCGA § 5-7-1 (a) (5) and consequently subject to the two-day deadline set out

there. The Georgia Supreme Court has reinstated the case and remanded it to this

court pursuant to State v. Andrade, 298 Ga. 464 (782 SE2d 665) (2016), which held
that appeals from orders suppressing statements made to a police officer are brought

under OCGA § 5-7-1 (a) (4) and consequently subject to the 30-day deadline set out

at OCGA § 5-6-38.

      We agree with the state’s assertion that Rosas was not in custody and therefore

a Miranda warning was not required. So we reverse the trial court’s order.

      “The trial court determines the admissibility of a defendant’s statement under

the preponderance of the evidence standard considering the totality of the

circumstances. Although we defer to the trial court’s findings of disputed facts, we

review de novo the trial court’s application of the law to the facts.” Clay v. State, 290

Ga. 822, 822-823 (1) (725 SE2d 260) (2012) (citations and punctuation omitted).

      In the instant case, the arresting officer was the only witness at the suppression

hearing and he testified that at about 3:30 on the afternoon of May 30, 2009, he was

dispatched to Rosas’ house to arrest her pursuant to an outstanding arrest warrant.

Upon arriving at the location, the officer saw Rosas and the alleged victim’s mother

standing at the front door of the house. The officer approached them and asked Rosas,

“Do you know why we are here?” Rosas stated, “I guess I must have touched him,”

and said that she had gotten into bed with the alleged victim to console him. The

officer subsequently arrested Rosas and took her to jail.

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      After the evidentiary hearing, the trial court ordered that Rosas’ statements be

suppressed. In so ruling, the court found that the officer’s question was designed to

elicit an incriminating response, that “the statements were custodial in nature,” and

that Rosas “should have been apprised of her Miranda rights.” This appeal followed.

             A person is considered to be in custody and Miranda warnings are
      required when a person is (1) formally arrested or (2) restrained to the
      degree associated with a formal arrest. Unless a reasonable person in the
      suspect’s situation would perceive that [she] was in custody, Miranda
      warnings are not necessary. Thus, the relative inquiry is how a
      reasonable person in [the suspect’s] position would perceive [her]
      situation.

State v. Folsom, 286 Ga. 105, 107-108 (1) (686 SE2d 239) (2009) (citations and

punctuation omitted). “In other words, the inquiry properly focuses upon the objective

circumstances attending the particular interrogation at issue, and not upon the

subjective views of either the person being interrogated or the interrogating officer.”

Sosniak v. State, 287 Ga. 279, 280 (1) (A) (1) (695 SE2d 604) (2010) (citation and

punctuation omitted).

      Pretermitting the issue of whether the officer’s question rose to the level of an

interrogation, it is clear that Rosas had not been formally arrested or restrained to a

degree associated with formal arrest at the time she made the statements. Rather, the

uncontradicted evidence shows that the officer approached Rosas as she stood at the

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door of her house, did not tell her she was under arrest, did not place her in handcuffs,

and did not indicate that she was not free to leave. While the officer’s approach and

question may have indicated that Rosas was a criminal suspect, “[e]ven a clear

statement from an officer that the person under interrogation is a prime suspect is not,

in itself, dispositive of the custody issue, for some suspects are free to come and go

until the police decide to make an arrest.” Hodges v. State, 265 Ga. 870, 872 (2) (463

SE2d 16) (1995) (citation and punctuation omitted). Indeed, “[a] person is not entitled

to Miranda warnings as a matter of right, even though that person is a suspect, unless

that person ha[s] been taken into custody or has been deprived of freedom of action

in another significant way.” Moses v. State, 264 Ga. 313, 314 (1) (444 SE2d 767)

(1994) (citations omitted).

      Because Rosas had not been formally arrested or deprived of her freedom of

action in any other significant way when the officer posed a question as she stood

near the door of her house, a reasonable person in her situation would not have

perceived that she was in custody and therefore a Miranda warning was not required.

See Beckwith v. United States, 425 U. S. 341, 347 (96 SCt. 1612, 48 LE2d 1) (1976)

(suspect questioned by investigators in a private residence was not “in the custodial

situation described by the Miranda court”); Woods v. State, 242 Ga. 277, 281 (2) (248

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SE2d 612) (1978) (defendant was not in custody or in a coercive environment at the

time she was questioned by a detective in his automobile at a trailer court); Wilburn

v. State, 230 Ga. 675, 679-680 (2) (198 SE2d 857) (1973) (no in-custody

interrogation where defendant’s statements were made to police officers talking to

him in the yard of his home); Carroll v. State, 208 Ga. App. 316, 317 (2) (430 SE2d

649) (1993) (defendant interviewed by detective in her home “not in a custodial

situation” under Miranda). Accordingly, the trial court erred in suppressing Rosas’

statements on the basis of Miranda since the statements were “admissible as . . .

statement[s] made prior to any in-custody interrogation.” Hardeman v. State, 252 Ga.

286, 288 (1) (313 SE2d 95) (1984) (citation omitted).

      Judgment reversed. Ellington, P. J., and Dillard, P. J., concur.




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