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


                                                                     June 16, 2015




In the Court of Appeals of Georgia
 A15A0419. OWENS v. THE STATE.

      MCFADDEN, Judge.

      Allen Porter Owens appeals from his conviction, after a bench trial, of

possession of marijuana with intent to distribute. OCGA § 16-13-30 (j). At trial,

Owens asserted that police officers obtained inculpatory statements from him in

violation of his Miranda rights. See Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602,

16 LE2d 694) (1966). Finding no violation, the trial court considered the statements

in determining that Owens was guilty of the charged offense. Owens argues that this

was error. Because Miranda did not apply to some of Owens’s inculpatory

statements, and because Owens had been given Miranda warnings when he made

other inculpatory statements, we affirm.

      1. Facts.
      By asking the trial court not to consider his statements at the bench trial,

Owens essentially sought to have the statements suppressed. Owens did not file a

written motion to suppress. See OCGA § 17-5-30 (b) (requiring motions to suppress

to be filed in writing); Copeland v. State, 272 Ga. 816, 817 (2) (537 SE2d 78) (2000)

(oral motions to suppress are procedurally defective). Nevertheless, the trial court

decided the issue of whether the statements were inadmissible because of a Miranda

violation, and the state neither objected at trial to the lack of a written motion to

suppress nor has argued on appeal that the issue was waived by Owens’s failure to

file a written motion. Accordingly, we will review the trial court’s ruling on the

statements.

      In considering that issue, “we owe no deference to the way in which the trial

court resolved questions of law, but we generally accept [his] findings about

questions of fact and credibility unless clearly erroneous.” Edenfield v. State, 293 Ga.

370, 374 (2) (744 SE2d 738) (2013) (citation and footnote omitted). In this case, the

trial court expressly found the testimony of law enforcement officers more credible

than that of Owens.

      Those officers testified that on August 20, 2010, a group of several probation

and police officers initiated a search of the house of a probationer, James Marshall

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Brown, pursuant to a Fourth Amendment waiver in the terms of Brown’s probation.

The officers asked other persons in the house, including Owens, to remain in the

living room while the officers spoke with Brown and performed the search. Owens

was not handcuffed and the officers did not consider him to be under arrest.

      As Brown took two officers to his bedroom, another officer stood in the

doorway between the living room and the kitchen. From that position, he smelled an

overwhelming odor of raw marijuana and saw on the kitchen table a pile of green

leafy material that appeared to be marijuana. The officer asked Brown, who had

returned to the living room, if the material was marijuana. When Brown replied that

he did not know, Owens spoke and stated that it was marijuana. Owens also

volunteered that the marijuana on the table was his. The officer asked if there was

more marijuana in the house, and Owens replied, “There might be some, I don’t

know.” A search of the kitchen uncovered, in addition to the marijuana on the table,

multiple bags of marijuana and two scales of different sizes with marijuana residue

on them.

      The officers placed Owens under arrest and handcuffed him. Before Owens

was given a Miranda warning, however, other officers who had been searching the

yard came into the house with a bag that contained marijuana and a firearm. As those

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officers were going through the bag and talking among themselves, Owens stated that

the bag and its contents belonged to him.

       At that point one of the officers read Owens Miranda warnings and asked if he

would talk about the marijuana. Owens told the officers that all of the marijuana was

his.

       2. Statements made before Owens received Miranda warnings.

       Owens argues that the trial court should not have considered the statements he

made before receiving Miranda warnings because they were custodial statements

subject to Miranda. We disagree.

       “Miranda applies only to statements which result from an in-custody

interrogation of the accused. Accordingly, in order for [Owens] to show that the [trial

court’s consideration] of his statement[s] was error, he must demonstrate that he was

both in custody and was interrogated at the time the statement[s were] made.” Cook

v. State, 274 Ga. 891, 894 (3) (561 SE2d 407) (2002) (citations and punctuation

omitted).

       The evidence authorized a finding that Owens was not in custody when he

made his initial statements regarding the marijuana on the kitchen table. “A person

is considered to be in custody and Miranda warnings are required when a person is

                                          4
(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 he was in

custody, Miranda warnings are not necessary.” Sewell v. State, 283 Ga. 558, 560-561

(2) (662 SE2d 537) (2008) (citation and punctuation omitted). Case law distinguishes

custody from brief detentions. See Harrison v. State, 213 Ga. App. 174, 176 (444

SE2d 354) (1994).

      When Owens made the initial statements, he was being lawfully detained in the

living room while officers conducted a search of the common areas of the house

pursuant to a Fourth Amendment waiver in a probation order pertaining to his

housemate, Brown. See id. (holding that officers are entitled to briefly detain

occupants of house pending search pursuant to probation order and recognizing that

such search presents same need for detention as does search executed pursuant to

warrant, because “[s]uch an undertaking is fraught with danger, particularly when

other people are inside [the house, and] leaves the officers vulnerable to attack”). He

had not been formally arrested and was not handcuffed. A reasonable person in his

position would not have thought that the detention would not be temporary. See

Knapp v. State, 229 Ga. App. 175, 178 (4) (493 SE2d 583) (1997) (person being

detained “is ‘in custody’ only if a reasonable person in the detainee’s position would

                                          5
have thought the detention would not be temporary”) (citing Berkemer v. McCarty,

468 U. S. 420, 442 (104 SCt 3138, 82 LE2d 317) (1984); see also Lewis v. State, 268

Ga. App. 547, 551 (2) (602 SE2d 278) (2004). Such brief, legal detention does not

invoke the requirement for Miranda warnings. See Tolliver v. State, 273 Ga. 785, 787

(546 SE2d 525) (2001) (Miranda warnings not required for routine questioning of

witnesses briefly detained at crime scene); Lewis, 268 Ga. App. at 550-551 (2)

(same); Zackery v. State, 262 Ga. App. 646, 650 (2) (586 SE2d 346) (2003) (detention

pending execution of search warrant).

      The evidence also authorized a finding that Owens was not being interrogated

when, after being placed in custody, he stated that the marijuana found in a bag

outside the house belonged to him. Owens did not make the statement in response to

any questions, but instead volunteered the statement while two officers were

searching the bag and talking to each other. Miranda would not apply to such an

utterance, even if Owens had made it while in custody. See Haggins v. State, 277 Ga.

App. 742, 745 (2) (a) (627 SE2d 448) (2006) (“[A]lthough [defendant] was in custody

when he made the statement, [the officer] was not interrogating him or otherwise

soliciting a response. A defendant’s spontaneous, voluntary, unprompted utterance

to a police officer is admissible against him at trial.”) (citations omitted).

                                           6
      Because Miranda did not apply to the statements discussed above, the trial

court did not err in rejecting Owens’s argument that he should not consider the

statements in the bench trial because they violated Miranda.

      3. Statements made after Owens received Miranda warnings.

      Owens argues that the trial court should not have considered the statements he

made after receiving Miranda warnings because those statements were secured using

the “two-step interrogation technique” disapproved by the United States Supreme

Court in Missouri v. Seibert, 542 U. S. 600 (124 SCt 2601, 159 LEd2d 643) (2004).

But in Seibert,

      officers procured an initial statement in violation of Miranda, then
      advised the defendant of his Miranda rights without informing him that
      his initial statements would have been inadmissible, and finally
      conducted further interrogation that led the defendant to repeat the same
      information that he had provided in the inadmissible initial statement.
      Id. at 606 (I); [cit.]. Here, in contrast, the . . . statement[s] that [Owens]
      provided prior to the reading of Miranda [were] admissible and not in
      violation of Miranda, and the . . . interview after [Owens] waived his
      rights was no circumvention of Miranda.


Walker v. State, 296 Ga. 161, 170 (3) (a) (766 SE2d 28) (2014); see also Drake v.

State, 296 Ga. 286, 290 (2) n. 3 (766 SE2d 447) (2014) (“Because there was no


                                            7
Miranda violation [as to Owens’s earlier statements], there is no merit to [his] further

claim that the statements he made after being Mirandized were inadmissible under

Missouri v. Seibert[.]”).

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




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