CourtListener 10680306

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In the Supreme Court of Georgia

Decided: June 11, 2024

S24A0104. THE STATE v. LOPEZ-CARDONA et al.

WARREN, Justice.

Saturnino Andre Lopez-Cardona, Wilmer Mendez, and Gerson

Suruy were charged with crimes related to the stabbing death of

Lucas Andres Cruz-Guzman. They each filed pretrial motions to

suppress statements that they made during separate interviews

with the same police officer. The trial court issued orders granting

each of their respective motions, concluding that the defendants did

not voluntarily, knowingly, and intelligently waive their rights

pursuant to Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d

694) (1966), before they made the statements. The State now

appeals, contending that the trial court’s conclusion with respect to

Lopez-Cardona’s and Mendez’s statements was incorrect and that

we should therefore reverse those orders. The State concedes,
however, that the trial court properly suppressed Suruy’s statement

and that we should thus affirm that order.

As explained below, the trial court made express findings as to

disputed questions of material fact in this case, but because those

findings are not sufficiently detailed to permit us to meaningfully

review its rulings suppressing Lopez-Cardona’s and Mendez’s

statements, we vacate the orders as to those two defendants and

remand the case to the trial court with the direction that the court

make further, specific findings. And as to Suruy, we defer to the

State’s discretion to not challenge the order suppressing his

statement, accept the State’s concession, and affirm that order.

1. For purposes of this appeal, we will recount the undisputed

evidence presented at the hearing on the motions to suppress and

also note the existence and nature of disputed evidence pertinent to

the trial court’s express findings regarding Lopez-Cardona and

Mendez and to the additional findings that may be required on

2
remand.1 In June 2021, Lopez-Cardona and Mendez were indicted

for malice murder, felony murder, and aggravated assault in

connection with Cruz-Guzman’s death. They each filed pretrial

motions to suppress statements that they separately made during

interviews with a Gwinnett County police officer while they were in

custody at police headquarters.

At a hearing on the motions, the officer testified that his

primary language is Spanish and that he interviewed Lopez-

Cardona and Mendez separately and conducted the interviews in

Spanish, their primary language. The prosecutor tendered into

evidence video recordings of the interviews, which he played for the

1 We may “take notice of the undisputed facts” in this case, “even if the

trial court did not.” Hughes v. State, 296 Ga. 744, 746 n.4 (770 SE2d 636)
(2015). As to the material facts that are disputed, we note that appellate courts
generally must “limit” their “consideration of the disputed facts to those
expressly found by the trial court,” as discussed more below. Id. at 746. But
because here, the trial court made limited findings that preclude meaningful
appellate review, such that we must remand the case, we recount the disputed
facts necessary to explain the basis for remand and to clarify the additional
findings that the trial court must make.
In addition, we note that because we accept the State’s decision to not
challenge the trial court’s order suppressing Suruy’s statement, we need not
recount the facts of Suruy’s case or examine whether the court erred by
concluding that he did not voluntarily, knowingly, and intelligently waive his
rights.
3
trial court, and transcripts (in Spanish and translated into English)

of the recordings. 2 The video recordings and transcripts show that

as to each defendant, the officer read in Spanish the rights under

Miranda,3 and the officer testified that he read from a “Spanish

Advisement of Rights” form that the Gwinnett County Police

Department typically used. The English translations of the

transcripts of the recordings show that the officer told Lopez-

Cardona and Mendez that they had the right to remain silent;

anything they said could “be used against [them] before a court of

law”; they had a right to an attorney during questioning; if they

“want[ed] an attorney but [could ]not afford one,” an attorney would

be appointed; and they could “exercise” those rights at any time.4

2 We note that there is some dispute about what the transcripts showed,

as discussed further below.

3 See Miranda v. Arizona, 384 U.S. 436 (86 SCt 1602, 16 LE2d 694)

(1966).

4 The phrases quoted above are what is shown in the English transcripts

of the defendants’ interviews. As we will explain below, however, a Spanish-
speaking interpreter and translator testified that some of the Spanish words
that the officer used in explaining the defendants’ rights were inaccurate, and
thus translated into English differently than what is shown in the transcripts.

4
The video recordings of the interviews show that Lopez-Cardona

was mostly still while the officer read the rights, whereas Mendez

nodded after the officer recited each right. At the end of the reading,

the officer asked each defendant if he understood, and each

defendant nodded. The officer then asked questions about the

crimes, and Lopez-Cardona and Mendez each answered his

questions.

The officer testified that Lopez-Cardona’s and Mendez’s nods

when he asked if they understood, as well as their apparent

willingness to answer his questions, indicated to him that they did

in fact understand their rights under Miranda.5 The officer also

testified that he did not show Lopez-Cardona or Mendez the

advisement of rights form that was printed in Spanish; he did not

ask them to sign the form; and he did not read to them the last

paragraph just above the signature line on the form, which he

translated into English during his hearing testimony as follows: “I

5 As explained more below, the defendants disputed this point, arguing

that they did not understand or waive their rights.
5
have read this document of my rights, and I understand. I desire to

speak with you and answer your questions. I do not desire an

attorney at this time. I know and understand what I am doing. No

promises or threats or pressure or coercion have been used against

me.”

The defendants presented testimony from Yvonne Machain, a

Spanish-speaking interpreter and translator, who stated that she

reviewed the video recordings and transcripts of the interviews and

that there were several “inaccuracies” in the officer’s recitation of

the rights under Miranda in Spanish to each defendant. First, as to

his recitation in Spanish of the phrase “[a]nything you say can be

used against you before a court of law,” the transcripts of the

recordings show that the word the officer used to represent the

English word “before” (as in “before a court of law”) was “antes,”

which, Machain testified, means “before” in the context of time (as

in “prior to”). Machain testified that the correct word to express

“before a court” (as in “in front of” the court) is “ante,” not “antes.”

Second, with regard to the officer’s recitation in Spanish of the

6
phrase “[i]f you want an attorney, but cannot afford one,” Machain

testified that the officer incorrectly used in each interview the word

“contrar,” which means “to oppose,” rather than the word

“contratar,” which means “to hire.” 6 Finally, with respect to the

officer’s recitation in Spanish of the phrase, “[y]ou may exercise

these rights at any time,” the transcripts of the recordings show that

he used in each interview the word “ejercitar,” and Machain testified

that word means “physical exercise.”7 Machain also testified that

the officer “mumbled” and “sounded winded” when he recited the

Miranda warnings in Spanish to each defendant, and that “he

rushed through the reading.” On cross-examination, Machain

testified that depending on a listener’s educational background, the

listener would be able to decipher what the officer meant when he

6 The transcripts of the interview recordings show that the officer used

the word “contrar” when reciting the rights under Miranda to Lopez-Cardona,
but that he used “contratar” when speaking to Mendez. Machain testified,
however, that each alleged inaccuracy she identified existed in each recording
she reviewed, even if the transcripts did not necessarily reflect those
inaccuracies.

7 Machain did not say, and was not asked, what word the officer should

have used in place of “ejercitar.”
7
used the words “antes” (instead of “ante”) and “contrar” (instead of

“contratar”), given the context. 8

At the end of the hearing, the trial court granted Lopez-

Cardona’s and Mendez’s motions to suppress. Noting that Machain

testified that the officer “was fast[-]speaking and possibly

mumbling” when he read the Miranda warnings, the trial court

found that the officer “was very fast[-]speaking . . . while he was

giving testimony.” The court then stated, without further

explanation, that there was “evidence there may have been some

mistakes in the translation.” The trial court also found that neither

Lopez-Cardona nor Mendez “answered audibly” when the officer

asked if they understood the Miranda warnings; that Lopez-

Cardona “slightly gave a nod after the one word understood”; and

that Mendez “nodded throughout the reading of the Miranda

[warnings], so his nod immediately after the word understood . . .

had no meaning.” The court then said that “neither one of these

8 Machain was not asked whether a listener would be able to decipher

what the officer meant when he used the word “ejercitar.”
8
[d]efendants w[as] asked if they waive[d] their rights. Neither one

of these [d]efendants w[as] asked if they want to talk to the police,

and therefore, I find that they did not knowingly and voluntarily

waive their Miranda rights and that they did not—there is not a

preponderance of the evidence that they understood.”

The trial court later issued separate, written orders granting

Lopez-Cardona’s and Mendez’s motions to suppress. Each said:

“Having heard and considered the [d]efendant’s motion, evidence

and argument of counsel and all applicable law, the [c]ourt finds the

State failed to meet its burden of proving the defendant understood

his Miranda rights and knowingly, voluntarily[,] and intelligently

waived those rights before giving a statement.” The State filed a

timely notice of appeal under OCGA § 5-7-1 (a) (4), contending that

the trial court erred by suppressing Lopez-Cardona’s and Mendez’s

statements.

2. (a) We begin with a review of the legal principles that apply

in this case. In Miranda, the United States Supreme Court

interpreted the Fifth Amendment to the United States Constitution

9
and set forth the now well-established rule that a defendant who is

in custody and subject to interrogation “must be warned prior to any

questioning that he has the right to remain silent, that anything he

says can be used against him in a court of law, that he has the right

to the presence of an attorney, and that if he cannot afford an

attorney one will be appointed for him prior to any questioning if he

so desires.” 384 U.S. at 479. To use a defendant’s custodial

statements in its case-in-chief, the State must prove by a

preponderance of the evidence that the defendant was advised of

these rights and that he voluntarily, knowingly, and intelligently

waived them. See, e.g., Hinkson v. State, 310 Ga. 388, 400 (850 SE2d

41) (2020); Pena v. State, 297 Ga. 418, 422 (774 SE2d 652) (2015).

“The waiver inquiry has two distinct dimensions: waiver must

be voluntary in the sense that it was the product of a free and

deliberate choice rather than intimidation, coercion, or deception,

and made with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.”

Berghuis v. Thompkins, 560 U.S. 370, 382-383 (130 SCt 2250, 176

10
LE2d 1098) (2010) (citation and punctuation omitted). See also, e.g.,

Hinkson, 310 Ga. at 400 (“‘Only if the totality of the circumstances

surrounding the interrogation reveals both an uncoerced choice and

the requisite level of comprehension may a court properly conclude

that the Miranda rights have been waived.’”) (citation omitted).

Lopez-Cardona and Mendez did not argue in their motions to

suppress or at the hearing on the motions that any waiver of their

rights was not voluntary. Rather, the issue presented here centers

on whether the officer who read the Miranda warnings adequately

advised Lopez-Cardona and Mendez of their rights, such that they

understood them, and whether they then knowingly and

intelligently waived those rights.

To that end, we have explained that a recitation of the Miranda

warnings must be “intelligible,” because a defendant must

understand his rights in order to knowingly and intelligently waive

them. Clay v. State, 290 Ga. 822, 826 (725 SE2d 260) (2012). And

although “no talismanic incantation [is] required” to satisfy the

strictures of Miranda, an officer’s recitation of the warnings must

11
convey to a defendant each of the rights required by that judicial

decision. California v. Prysock, 453 U.S. 355, 359-361 (101 SCt

2806, 69 LE2d 696) (1981). See also Benton v. State, 302 Ga. 570,

574-575 (807 SE2d 450) (2017) (concluding that the trial court erred

by failing to suppress statements that a defendant made during

interrogation, because the totality of the circumstances showed that

the officer gave the defendant an incomplete explanation of the

Miranda warnings, which failed to include three of the four

warnings).

As to the form of the waiver itself, it is well settled that a

relinquishment of the rights pursuant to Miranda need not be

express. See, e.g., Berghuis, 560 U.S. at 384 (“The prosecution . . .

does not need to show that a waiver of Miranda rights was

express.”); North Carolina v. Butler, 441 U.S. 369, 373 (99 SCt 1755,

60 LE2d 286) (1979) (“An express written or oral statement of waiver

of the right to remain silent or of the right to counsel is usually

strong proof of the validity of that waiver, but is not inevitably either

necessary or sufficient to establish waiver.”). Instead, waiver may

12
be “implied from all the circumstances,” including from “‘the

defendant’s silence, coupled with an understanding of his rights and

a course of conduct indicating waiver.’” Berghuis, 560 U.S. at 384

(quoting Butler, 441 U.S. at 373). See also Huffman v. State, 311

Ga. 891, 895 (860 SE2d 721) (2021).

In assessing whether a defendant voluntarily, knowingly, and

intelligently waived his rights under Miranda, a trial court must

consider the totality of the circumstances surrounding the

interrogation. See, e.g., Hinkson, 310 Ga. at 400. And in reviewing

a trial court’s order on a motion to suppress, we have explained that

when the facts material to the motion are disputed—as some of them

are in this case—it generally is for the trial court, not this Court, to

resolve those disputes and determine the material facts. See, e.g.,

Hughes v. State, 296 Ga. 744, 746 (770 SE2d 636) (2015). A trial

court is not required to make express findings of fact in ruling on a

motion to suppress, see Jones v. State, 314 Ga. 605, 609 (878 SE2d

505) (2022), but when it does make such findings, we generally

accept them unless they are clearly erroneous; we construe the

13
record in the light most favorable to the trial court’s judgment; and

we generally limit our consideration of the disputed facts to those

expressly found by the trial court. See, e.g., Hughes, 296 Ga. at 746.9

“Although we owe substantial deference to the way in which

the trial court resolved disputed questions of material fact, we owe

no deference at all to the trial court with respect to questions of law,

and instead, we must apply the law ourselves to the material facts.”

Hughes, 296 Ga. at 750. However, “[i]f the trial court has made

express findings of fact, but not with sufficient detail to permit

meaningful appellate review, an appellate court may remand for

further findings.” Id. at 746 n.6.

9 Citing Licata v. State, 305 Ga. 498 (826 SE2d 94) (2019), the State

contends that we should review de novo the trial court’s factual determinations
in this case because, the State says, “the controlling facts are not in dispute.”
Id. at 501 n.2. But the parties vigorously dispute factual issues like the speed,
clarity, and accuracy of the Miranda warnings that were given in Spanish to
Lopez-Cardona and Mendez; there was conflicting evidence about these issues
presented at the hearing on the motion to suppress; and that evidence is
relevant to the ultimate legal question of whether Lopez-Cardona’s and
Mendez’s waivers were knowing and intelligent. To the extent a trial court
makes factual and credibility findings about such disputed issues, those
findings are reviewed for clear error. See, e.g., State v. Abbott, 303 Ga. 297,
299 (812 SE2d 225) (2018); Clay, 290 Ga. at 826 n.1. Compare State v.
Franklin, 318 Ga. 39, 40 n.1 (897 SE2d 432) (2024).
14
(b) We now turn to the findings of fact that the trial court made

in suppressing Lopez-Cardona’s and Mendez’s custodial statements.

As we mentioned above, the trial court’s written orders granting the

motions said only that “the State failed to meet its burden of

proving” that the defendants “understood [their] Miranda rights

and knowingly, voluntarily[,] and intelligently waived those rights

before giving a statement.” But when the trial court pronounced

that ruling at the end of the hearing on the motions, the court made

additional (though limited) factual findings as part of its analysis of

the totality of the circumstances—and the parties do not dispute

that the court’s orders were based on those findings. 10 Accordingly,

we review those findings for clear error. See Hughes, 296 Ga. at 746.

See also Norton v. State, 293 Ga. 332, 335 n.4 (745 SE2d 630) (2013)

(construing the trial court’s written order together with its oral

pronouncement in determining that the court applied the proper

10 We note, however, that if there had been any discrepancies between

the trial court’s oral pronouncement and its written ruling, such discrepancies
would be resolved in favor of the written judgment. See, e.g., Mondy v.
Magnolia Advanced Materials, Inc., 303 Ga. 764, 772 (815 SE2d 70) (2018).
15
standard in denying the defendant’s motion to suppress); Sherod v.

State, 334 Ga. App. 314, 315 (779 SE2d 94) (2015) (explaining that

the trial court made no written findings of fact in its order denying

the defendant’s motion to suppress but that the court orally

announced its factual findings at the conclusion of the hearing on

the motion, and determining that review of those oral findings under

a clearly-erroneous standard was appropriate). However, as we

explain more below, even after examining the trial court’s limited

findings, we cannot determine whether the trial court erred by

granting the motions to suppress, because its factual findings are

incomplete.

(i) With respect to whether Lopez-Cardona and Mendez were

adequately apprised of their rights under Miranda, the trial court

first recounted Machain’s testimony that the officer who recited the

rights in Spanish “was fast[-]speaking and possibly mumbling”

when he read the rights, and the court then found that the officer

“was very fast[-]speaking” when he testified at the hearing on the

motions to suppress. However, the court made no express findings

16
about whether the officer’s recitation of the warnings was so fast

that it was unintelligible. Although the trial court did reference

Machain’s testimony about the officer’s “fast” and “mumbl[ed]”

reading of the rights, it did not expressly credit that testimony. And

although the trial court found that the officer spoke “very fast” when

he testified at the hearing, that observation does not necessarily

bear on how the officer spoke when he read the rights to the

defendants. In the same vein, the court did not determine whether

the officer’s pace in reading the rights was so fast or his “possibl[e]

mumbling” so inarticulate that the defendants did not understand

him. Compare Clay, 290 Ga. at 825-826 (holding that the trial court

did not err in concluding that the defendant did not knowingly and

intelligently waive his rights under Miranda, because the evidence

supported the court’s findings that an investigator read the rights

“in such a super-speed manner that the warnings likely could not

have been identified as anything more than gibberish” to the

defendant, who was experiencing the effects of a drug-induced coma)

(punctuation omitted) with Huffman, 311 Ga. at 894 (explaining

17
that a detective’s reading of the Miranda warnings “was not so

rushed as to be unintelligible absent familiarity with Miranda”).

Second, the trial court mentioned “evidence [that] there may

have been some mistakes in the translation.” Yet the court made no

findings about whether such mistakes were actually made, or

whether they were material such that they likely affected Lopez-

Cardona’s and Mendez’s understanding of their rights. Notably,

conflicting evidence on this point was presented at the hearing. On

one hand, Machain testified about three alleged “inaccuracies” in the

officer’s recitation of the rights: his use of the word “antes” (meaning

“prior to”) rather than “ante” (meaning “in front of”) to explain that

anything the defendants said during their interviews could be used

against them “before a court”; his use of the word “contrar” (meaning

“to oppose”) rather than “contratar” (meaning “to hire”) to explain

that if the defendants could not afford to hire an attorney, one would

be appointed; and his use of the word “ejercitar” (meaning “physical

exercise”) to explain that the defendants could exercise their legal

rights at any time. But the trial court did not expressly credit or

18
discredit Machain’s testimony about inaccuracies in the translation

or address whether any or all of the purported inaccuracies rendered

the officer’s reading of the rights unintelligible or incorrect, such

that the defendants were not adequately advised of their rights

under Miranda. On the other hand, Machain also testified that a

listener would likely be able to decipher the officer’s meaning as to

the first two phrases, when heard in context, and did not opine

further on the third phrase. The trial court did not expressly credit

or discredit that testimony, either.

As we discussed above, an officer is not required to give the

warnings set forth in Miranda in the exact form described in that

judicial decision, but must convey to the defendant the substance of

each of the four required warnings. See Prysock, 453 U.S. at 359-

361; Benton, 302 Ga. at 574-575. In this respect, we have held that

the State may carry its burden of proving that a defendant was

adequately advised of his rights pursuant to Miranda even where

there is evidence that there were minor errors in a translation of the

rights, so long as the rights were effectively conveyed. See Pena, 297

19
Ga. at 422 (rejecting the defendant’s claim that the Spanish version

of the Miranda warnings he was given did not adequately inform

him of his rights, where the evidence at the hearing on the motion

to suppress showed that a detective informed the defendant of his

rights but mispronounced the Spanish word for “‘interrogation’” and

used a “‘made up word”” for “‘name’” in explaining that the

defendant could have an attorney “‘named’” for him, and an

interpreter testified at the hearing that she was able to interpret the

detective’s statements based on context); Delacruz v. State, 280 Ga.

392, 394-395 (627 SE2d 579) (2006) (rejecting the defendant’s claim

that the Spanish version of the Miranda warnings given to her was

incomplete and upholding the trial court’s determination that she

knowingly waived her rights, noting that she pointed to no specific

error in the translation and that “the Spanish translation of the

Miranda form . . . clearly expressed the required concepts; any

deviation was at most minor and inconsequential”). Evidence that

an officer’s translation of the required warnings rendered the

warnings incomplete or incorrect, however, could support a

20
conclusion that the defendant was not sufficiently informed of each

of his rights. Cf. Benton, 302 Ga. at 575.

Applying these principles to just one of the alleged inaccuracies

Machain testified about shows why factual and credibility findings

on such points are critical to the legal analysis Miranda requires:

Machain’s testimony that the officer’s translation informed the

defendants that anything they said during their interviews could be

used against them “prior to a court of law” could, for example,

authorize a finding that the defendants were not adequately advised

that anything they said could be used against them during court

proceedings. See Benton, 302 Ga. at 575 (explaining that “an

incomplete Miranda warning ‘is one instance in which halfway is

not close enough’”) (citation omitted). On the other hand, if the trial

court credited Machain’s testimony about an average Spanish-

speaker’s ability to understand the import of the officer’s statement

in context, such a finding could support a conclusion that the

defendants were sufficiently apprised that what they said during

their interviews could be used against them in court, and there

21
would be no violation of Miranda.

In sum, because the trial court cited evidence that the officer

“was fast[-]speaking and possibly mumbling” when he read the

Miranda warnings and evidence that there may have been mistakes

in his translation of the warnings, but made no specific findings

about whether the officer’s reading was so fast, mumbled, or

inaccurate that Lopez-Cardona and Mendez were not adequately

advised of their rights, we cannot determine whether the court’s

conclusion that the State had not shown that the defendants

understood their rights was correct.

(ii) We next turn to the trial court’s factual findings about the

nature of the defendants’ alleged waivers. Specifically, at the end of

the hearing on the motions to suppress, the court found that after

the officer read the Miranda warnings and asked Lopez-Cardona

and Mendez if they understood their rights, they did not “answer[]

audibly”; Lopez-Cardona “slightly gave a nod”; Mendez also nodded,

but his nod “had no meaning” because he “nodded throughout the

reading” of the warnings; and neither defendant was asked if he

22
waived his rights or wanted to talk to the officer.

As discussed above, the United States Supreme Court made

clear in Berghuis v. Thompkins that the State is not required to

prove that a defendant’s waiver of his rights under Miranda was

express. See 560 U.S. at 384. In Berghuis, a police officer read the

defendant the Miranda warnings, but the defendant declined to sign

a form acknowledging that he understood the warnings, and there

was “conflicting evidence” about whether the defendant “verbally

confirmed that he understood the rights listed on the form.” Id. at

375. The officer questioned the defendant, who was “‘[l]argely’

silent” until, near the end of the interview, he made an

incriminating statement in response to one of the officer’s questions.

Id. at 375-376.

The United States Supreme Court rejected the defendant’s

claim that he had not waived his right to remain silent, explaining

that “[w]here the prosecution shows that a Miranda warning was

given and that it was understood by the accused, an accused’s

uncoerced statement establishes an implied waiver of the right to

23
remain silent.” Id. at 384. The Court held that the evidence—which

included evidence that the defendant was shown a written copy of

the warnings and was given time to read them, the officer

determined that the defendant could read, and the defendant read

one of the warnings aloud—showed that the defendant understood

his rights, and his answer to the officer’s question was a “‘course of

conduct indicating waiver,’” such that he knowingly and voluntarily

waived his right to remain silent. Id. at 385-386 (quoting Butler,

441 U.S. at 373). The Court also rejected the defendant’s argument

that the officer was not allowed to question him without first

obtaining a waiver of the rights pursuant to Miranda, because a rule

requiring waiver at the outset of police questioning would be

inconsistent with the Court’s holding in North Carolina v. Butler

that “courts can infer a waiver of Miranda rights ‘from the actions

and words of the person interrogated.’” Id. at 387 (quoting Butler,

441 U.S. at 373).

In accordance with the holdings in Berghuis and Butler, this

Court has held that a waiver of the rights under Miranda was

24
voluntary, knowing, and intelligent where the defendant was

adequately apprised of the rights, understood them, and then “freely

made his statements without invoking his right to remain silent and

without requesting an attorney.” Huffman, 311 Ga. at 895

(upholding the trial court’s denial of a motion to suppress where the

defendant did not sign a waiver of his rights under Miranda, the

officer who read the rights did not ask for a verbal waiver of rights

or a verbal acknowledgement that the defendant understood the

rights, the evidence authorized the trial court to conclude that the

defendant understood his rights, and the defendant implicitly

waived his rights by responding to the officer’s questions). See also,

e.g., Kidd v. State, 304 Ga. 543, 546 (820 SE2d 46) (2018) (explaining

that “a written waiver is not necessary where a suspect is orally

advised of his or her rights and subsequently waives those rights

through his or her responses”); Sosniak v. State, 287 Ga. 279, 282

(695 SE2d 604) (2010) (holding that the trial court did not err in

ruling that the defendant waived his rights pursuant to Miranda,

where a detective properly advised him of his rights, asked if he

25
understood the rights and if they were “still good to talk,” and the

defendant nodded affirmatively), disapproved on other grounds by

Budhani v. State, 306 Ga. 315 (830 SE2d 195) (2019).

At the hearing on the motions to suppress in this case, the

prosecutor cited Berghuis and argued that Lopez-Cardona and

Mendez implicitly waived their rights under Miranda. The trial

court, in pronouncing its ruling, determined that Berghuis was “not

on point,” without explanation, and then emphasized evidence that

had been presented that would support a finding of no express

waiver—such as evidence showing that the defendants did not

verbally answer, and instead nodded in response, when the officer

asked if they understood the Miranda warnings, and evidence that

the officer did not expressly ask the defendants if they waived their

rights before he began questioning them. The trial court’s rejection

of Berghuis and emphasis on evidence in the record showing that the

defendants did not expressly waive their rights under Miranda

suggests that the court concluded that an officer must obtain an

express waiver of the Miranda warnings before questioning a

26
defendant. Any such ruling, however, constituted an error of law:

an officer is not required to obtain an express waiver of rights before

commencing questioning, and a defendant may implicitly waive his

rights “‘through [his] silence, coupled with an understanding of his

rights and a course of conduct indicating waiver.’” Berghuis, 560

U.S. at 384, 387-388 (quoting Butler, 441 US at 373).

Because the trial court incorrectly determined that Berghuis

was “not on point,” the court made no findings about whether there

was evidence in the record showing whether the defendants

implicitly waived their rights—such as whether the defendants’

course of conduct indicated an implicit waiver, including whether

their silence or their understanding of their rights (or lack thereof)

affected the assessment of implicit waiver. See Berghuis, 560 U.S.

at 385-386 (explaining that “[t]here was more than enough evidence

in the record to conclude that [the defendant] understood his

Miranda rights” and that his course of conduct in “giv[ing] sporadic

answers to questions throughout the interrogation” and in making

an incriminating statement about three hours after receiving the

27
Miranda warnings (rather than saying nothing or unambiguously

invoking his rights) was “sufficient to show a course of conduct

indicating waiver”). As to whether the defendants understood their

rights, we explained above in Division 2 (b) (i) that the trial court

made no specific findings about whether the officer’s reading of the

Miranda warnings was so fast, mumbled, or inaccurate that Lopez-

Cardona and Mendez were not adequately advised of their rights,

such that they did not “kn[o]w what [they] gave up when [they]

spoke.” Id. at 385. And as to Lopez-Cardona’s and Mendez’s course

of conduct during their interviews, the trial court noted only the

defendants’ failure to verbally answer when the officer asked if they

understood the Miranda warnings, Lopez-Cardona’s “slight[ ]” nod,

and Mendez’s nods “throughout the reading,” without assessing

whether this conduct and other conduct by Lopez-Cardona and

Mendez during the interviews—including, for example, their

subsequent answers to the officer’s questions—“was sufficient to

show a course of conduct indicating waiver.” Id. at 386. Because the

trial court rejected Berghuis and made incomplete findings about

28
the defendants’ understanding of their rights and course of conduct

during the interviews, we cannot meaningfully review the trial

court’s ruling about the form of the alleged waivers.

(iii) In all, under the circumstances of this case, the

determination of whether the officer sufficiently advised Lopez-

Cardona and Mendez of the Miranda warnings, such that they

understood their rights, and whether they then implicitly waived

those rights, necessarily rests on factual and credibility findings

that must be made by the trial court, which had the opportunity to

observe the live testimony from the officer and Machain, as well as

the video recordings and transcripts of the interviews. We therefore

vacate the trial court’s orders suppressing Lopez-Cardona’s and

Mendez’s statements and remand the case to that court for it to

make appropriate factual findings consistent with the legal

framework set out in this opinion. See Hughes, 296 Ga. at 746 n.6.

See also Williams v. State, 301 Ga. 60, 62 (799 SE2d 779) (2017);

Welbon v. State, 301 Ga. 106, 110-111 (799 SE2d 793) (2017). As

discussed above, we affirm the trial court’s suppression order with

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respect to Suruy.

Judgments affirmed in part and vacated in part, and case
remanded with direction. All the Justices concur.

319 Ga. 222
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