Culpepper v. State

• Decision Date: 18 October 2011
• Docket Number: No. A11A1156.,A11A1156.
• Citation: 312 Ga.App. 115,11 FCDR 3311,717 S.E.2d 698
• Parties: CULPEPPER v. The STATE.
• Court: Georgia Court of Appeals

11 FCDR 3311

312 Ga.App. 115

717 S.E.2d 698

CULPEPPER

v.The STATE.

No. A11A1156.

Court of Appeals of Georgia.

Oct. 18, 2011.

Daniel B. Kane, Atlanta, for appellant.

Robert D. James Jr., Dist. Atty., Jennifer Lynn Little, Deborah D. Wellborn, Asst. Dist. Atty., for appellee.

BLACKWELL, Judge.

Following a bench trial in DeKalb County, Larry Culpepper was convicted of possession of cocaine¹ and possession of a firearm by a convicted felon.² Culpepper appeals, asserting that the trial court erred when it denied his motion to suppress evidence that was recovered from his rental car. Culpepper contends that the search of the car was unlawful because it was the fruit of an unreasonably prolonged investigative detention. We see no error and affirm the judgment of conviction.

When we review the denial of a motion to suppress, we view the evidence in the light most favorable to the findings and judgment of the trial court, Tanner v. State, 281 Ga.App. 101, 101, 635 S.E.2d 388 (2006), and we accept its findings on questions of fact and credibility unless they are clearly erroneous and there is no evidence to support them. Alex v. State, 220 Ga.App. 754(1), 470 S.E.2d 305 (1996). So viewed, the record in this case shows that, late on the evening of August 5, 2009, a DeKalb County police officer, who was on patrol and accompanied by an officer trainee, observed a conversion van and a Nissan Altima, both parked outside a stereo store and next to a locked, fenced enclosure in which a number of other cars were parked. The rear of the van was adjacent to the fence, its back doors were open, and the officer saw two men standing near the rear of the van. The stereo store was closed at the time, as were the other businesses in the area, and the officer knew that there had been a number of burglaries and thefts in the area recently. Among other incidents, someone recently had broken into a fenced enclosure at a neighboring business, had broken into the vehicles that were parked inside, had stolen some vehicles, and had entered the store and stolen some equipment inside. The officer had been instructed to be on the lookout for possible burglars and thieves in the area.

Concerned that the two men at the rear of the van might be up to no good, the officer approached the two men, who later were identified as Culpepper and his friend, who is identified only as “Mr. Irby” in the record. Irby told the officer that his father operated the paint shop located behind the stereo store, that his father was working late in the shop, and that he and Culpepper were just waiting for his father. The officer then asked Irby to call his father, so that his father could verify his story. Irby claimed, however, that he could not contact his father, and both his story and demeanor then began to change.

As the officer continued to speak with Culpepper and Irby, the officer noticed that both men became increasingly nervous, seemed to be looking around to see if anyone else was in the area, and attempted to create distance between themselves and the officer and between one another. The officer obtained identifying information from Culpepper and Irby and learned that Irby, who said that he had driven the van to the scene, had a suspended license. The officer also learned that the Altima driven by Culpepper was a rental vehicle, a number of which, the officer knew, had been stolen in the area. The officer asked to see the rental agreement for the Altima, and when he followed Culpepper to retrieve the agreement from the car, he noted that Culpepper had to look for the agreement in several areas of the car, finally locating it in the center console. More important, when Culpepper opened the center console, the officer observed the handle of a firearm. After opening the center console, Culpepper “grabbed the rental agreement and slammed the center console real fast,” according to the officer.

The officer then called for other police officers to come to the scene. He also asked Culpepper if there were any weapons in the Altima. At first, Culpepper said “no,” but when the officer asked again later, Culpepper looked nervously at the officer and never answered. Turning to the rental agreement, the officer noticed that the Altima was supposed to have been returned six days earlier, so he contacted the rental company and verified that the rental agreement had expired.

Additional police officers then arrived on the scene, and the first officer secured the firearm that he had observed in the Altima. While removing the firearm from the console, the officer noticed a digital scale with substantial white residue, which a field test indicated was cocaine. Culpepper admitted that the scale with the white residue was his and that he used cocaine. And a check of the firearm revealed that it had been stolen in Henry County. The officers arrested Culpepper, and after placing him in a patrol vehicle, conducted an inventory search of the Altima, which revealed large amounts of bundled currency, including $100 bills, $50 bills, and $20 bills.

Culpepper moved to suppress the evidence recovered from the Altima—the firearm, the digital scale with cocaine residue, and the large amounts of currency—and following an evidentiary hearing, the trial court denied the motion. The trial court summarized its findings of fact and explained its denial of the motion as follows:

Based on the evidence, the officer had a reasonable[,] articulable suspicion that Culpepper was, or was about to be, involved in criminal activity. Each step of the investigation reasonably led to the next. At 10:00 at night, an officer, who was patrolling the area businesses due to recent thefts, saw a van and car backed up to a locked gate of a business that was closed. When the officer stopped to inquire of the vehicles' occupants, he received a series of inconsistent stories. A criminal check showed that the van's owner had a suspended license, and that the car was a rental. Upon asking for the rental agreement, the officer saw a gun. The rental agreement that Culpepper gave to the office[r] had expired. The officer legally retrieved the gun, which was stolen, and also found a digital scale with cocaine residue. Culpepper admitted that the scale was his, and that he used cocaine. The detention was not unreasonably prolonged because the officer's initial reason for stopping never dissipated, and other grounds for detaining Culpepper arose.

Culpepper subsequently agreed to a bench trial, at which he stipulated to the facts found by the trial court at the hearing on the motion, that he had previously been convicted of a felony, and that the residue found on the scale was, in fact, cocaine. The trial court found Culpepper guilty of unlawfully possessing cocaine and, being a convicted felon, a firearm. Culpepper now appeals from the judgment of conviction.

On appeal, Culpepper says that the trial court should have granted his motion to suppress because the officer lacked a reasonable, articulable suspicion that Culpepper was engaged in criminal wrongdoing, and for this reason, his prolonged detention prior to his arrest was unlawful. We disagree.

The principles drawn from the Fourth Amendment that govern encounters between police officers and citizens are well settled and familiar:

As this Court and our Supreme Court have explained many times before, encounters between police officers and citizens come in three varieties, at least as far as the Fourth Amendment is concerned: encounters involving no coercion or detention, which are outside the purview of the Fourth Amendment altogether; brief seizures, which require an officer to have a reasonable suspicion of criminal wrongdoing; and custodial arrests, which require probable cause.

White v. State, 310 Ga.App. 386, 387(1), 714 S.E.2d 31 (2011) (citations omitted).

With respect to the first kind of encounter, one involving no coercion or detention, “police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that 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.”

Id. (citation omitted). So long as a reasonable person, in light of all the circumstances, would believe that he is free to leave, an encounter does not amount to a seizure of the person and does not, therefore, implicate the Fourth Amendment at all. See Bacallao v. State, 307 Ga.App. 539, 541, 705 S.E.2d 307 (2011). Culpepper concedes that his encounter with the officer in this case was, at first, just such a consensual encounter,³ and we, therefore, need not scrutinize the undisputed, consensual portion of the encounter. Culpepper contends, however, that the encounter evolved into an investigative detention—an encounter of the second kind—when the officer detained Culpepper after obtaining his identifying information and confirming that no warrants for his arrest were outstanding. Even accepting the contention that the encounter at that point evolved into a seizure of Culpepper, we conclude that the trial court was authorized to find the officer had reasonable grounds for detaining him and, for this reason, properly denied the motion to suppress.

The Fourth Amendment permits an officer to seize a person if the seizure is reasonable. See Johnson v. State, 299 Ga.App. 474, 478, 682 S.E.2d 601 (2009) (“[T]he touchstone of any Fourth Amendment analysis is a determination of whether an officer's conduct is reasonable based upon all of the objective facts.”). And a temporary, investigative detention is reasonable if the officer is aware of “specific and articulable facts which, taken together with rational inferences from those facts, provided a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Rolfe v. State, 278 Ga.App. 605, 606, 630 S.E.2d 438 (2006) (citation and punctuation...