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Johnson v. State7/9/2004
n appeal that there should be the same foundational requirements for admitting evidence of his refusal to submit to alco-sensor screening as there are for admitting alco-sensor test results as evidence. However Johnson cites authority that only supports the rule that alco-sensor test results require a foundation before such evidence is admissible. These cases do not state that a prosecutor must establish a foundation of the device's acceptability before evidence of a defendant's refusal to submit to testing can be admissible. Nor does it seem logical that the State should be required to **181 establish the same foundation for admitting an alco-sensor refusal as evidence as it must to admit an alco-sensor test result as evidence when the device has not actually been used in the former situation. For these reasons, the trial court did not err by not requiring a foundation for the admission of Johnson's refusal to submit to alco-sensor screening as evidence.
4. In his final enumeration of error, Johnson argues that the trial court erred when it refused his motion to suppress based on the initial seizure of the defendant. "On motion to suppress evidence, the trial judge sits as the trior [sic] of the facts, hears the 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." (Citations and punctuation omitted.) Dimick v. State, 178 Ga.App. 60, 61-62, 341 S.E.2d 914 (1986). Because evidence exists that supports the trial court's finding, the decision to refuse Johnson's motion to suppress should not be disturbed.
Johnson claims that Deputy Shinall had no basis for searching him when he drove his car up the driveway.
There are three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that *430 the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.
(Citation and punctuation omitted.) McClain v. State, 226 Ga.App. 714, 716, 487 S.E.2d 471 (1997).
Here, Deputy Shinall approached Johnson's stopped car, asked for his identification, and asked Johnson to get out of his car. "It is well established that an officer's approach of a stopped vehicle and inquiry as to what is going on does not constitute a 'stop' or 'seizure' and 'clearly falls within the realm of the first type of police-citizen encounter.' " (Citation omitted.) State v. Folk, 238 Ga.App. 206, 207, 521 S.E.2d 194 (1999). Therefore Deputy Shinall's initial approach to Johnson in his already-stopped vehicle was a first tier police-citizen encounter. It was only after Deputy Shinall smelled alcohol on Johnson and noticed his bloodshot eyes that he acted upon a reasonable suspicion that Johnson might be intoxicated. The trial court ruled correctly when it denied Johnson's motion to suppress evidence from this first tier police-citizen encounter.
Judgment affirmed.
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