GA: A field sobriety test is not a “search”

A field sobriety test is not a “search,” recognizing authorities to the contrary. Mitchell v. State, 2017 Ga. LEXIS 545 (June 26, 2017):

In his supplemental brief, Mitchell points to decisions of other state courts holding that a field sobriety test is a “search” within the meaning of the Fourth Amendment, notably Blasi v. State, 167 Md. App. 483, 504-505 (893 A2d 1152) (2006), Ackerman v. State, 774 NE2d 970, 980 (2) (a) (Ind. App. 2002); Hulse v. Dept. of Justice, 1998 MT 108, 289 Mont. 1, 30 (961 P2d 75) (1998), and State v. Nagel, 320 Ore. 24, 35 (880 P2d 451) (1994). These courts base their holdings on the concept that field sobriety tests elicit physical activities that are not “the sort of normal physical activity that one displays to the public,” Blasi, supra, at 504-505, and moreover may reveal private information not ordinarily visible to the public, such as that the subject “is illiterate, has Alzheimer’s disease, or suffers from multiple sclerosis.” Id. at 503; see also Hulse, supra, 289 Mont. at 30; Nagel, supra, 320 Ore. at 35-36.

But the fact that a test may incidentally reveal some other condition or impairment does not necessarily render it a search within the meaning of the Fourth Amendment. A handwriting exemplar, for example, while not a search, see Mara, supra, would certainly reveal the subject’s illiteracy and might also reveal a neurological condition. And while field sobriety tests may involve specific, unusual maneuvers that are not normally performed in public or private, most are simply intended to reveal, more quickly and in a reproducible fashion, matters that also would be revealed by more time-consuming, but clearly permissible, passive observation. Such characteristics as unsteady gait, lack of balance and coordination, impaired speech, lack of memory, or inability to divide one’s attention, generally would become apparent to a casual observer over a longer period of time.

Although it is a close question, we conclude that a basic field sobriety test is not a search implicating Fourth Amendment protections. Mitchell’s Fourth Amendment protections were not implicated, and we decline to apply the rule enunciated in Mackey to the administration of field sobriety tests. The trial court accordingly did not err in denying Mitchell’s motion to suppress his refusal to submit to field sobriety testing.