Ewumi v. State
| Decision Date | 18 April 2012 |
| Docket Number | No. A12A0617.,A12A0617. |
| Citation | 12 FCDR 1498,727 S.E.2d 257,315 Ga.App. 656 |
| Parties | EWUMI v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Stanley W. Schoolcraft III, Stockbridge, for Appellant.
Tracy Graham–Lawson, Dist. Atty., Elizabeth A. Baker, Asst. Dist. Atty., for Appellee.
Following a trial by jury, Deon Tremane Ewumi was convicted of felony obstruction, simple battery, and possession of less than one ounce of marijuana. On appeal from these convictions, Ewumi argues that the trial court erred by (1) denying his motion to suppress, (2) denying his motion for new trial based on insufficient evidence as to each count, and (3) failing to instruct the jury regarding the right to resist an unlawful arrest. Because the trial court erred in denying Ewumi's motion to suppress evidence based on an unlawful arrest and because the evidence is insufficient, we reverse his convictions.
Viewed in the light most favorable to the jury's verdict,1 the record shows that shortly after midnight on March 6, 2011, an officer was dispatched to an apartment complex in what was described as a high-crime area in Clayton County after shots were fired and a bullet entered a residence. Approximately 20 minutes later, the officer encountered 17–year–old Ewumi outside the relevant building while searching for shell casings on the ground. Ewumi was returning to his unit in the building after attending an event at school, and he was walking with a friend when he saw the officer.
Ewumi and his companion emerged from behind a nearby garage, and the officer observed that Ewumi's head and hands were obscured by a hoodie ( i.e., a hooded sweatshirt). The officer approached Ewumi and said that he wanted to ask some questions, but Ewumi did not stop and mumbled an inaudible response before walking away. Thereafter, the officer attempted to close the gap between himself and Ewumi,2 and Ewumi began to run toward the building. He then ran upstairs to the second floor and tripped as he reached the top.
The officer pursued Ewumi and, immediately after the young man fell, climbed atop him and initiated an “arm-bar” technique to apply handcuffs.3 Ewumi struggled against the officer to escape, kicking his legs about and throwing his elbows back and forth. Ewumi continued trying to climb toward his apartment, banging on the door and screaming for his mother. Meanwhile, the officer restrained one of his arms and gave verbal commands, but Ewumi continued to struggle. The officer called for backup, applied a taser directly to Ewumi's body, and eventually restrained and arrested him.
Upon arrival at the police station, an officer noticed that Ewumi was chewing something, which was determined to be a small amount of marijuana wrapped in paper. Thereafter, Ewumi was charged with and convicted of felony obstruction, 4 simple battery,5 and possessing less than one ounce of marijuana.6 This appeal follows.
1. Ewumi contends that the trial court erred by denying his motion to suppress evidence based on an unlawful stop and subsequent arrest. We agree.
At the outset, we note that in reviewing a trial court's decision on a motion to suppress, “we construe the evidence most favorably to uphold the findings and judgment, and the trial court's findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous.” 7 Moreover, because the trial court sits as the trier of fact, “its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them.” 8 Nevertheless, “we owe no deference to the way in which the court below resolved questions of law.” 9 And in conducting our review, “we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing.” 10 With these guiding principles in mind, we turn now to an analysis of Ewumi's argument that his arrest was unlawful.
The Supreme Court of the United States has construed the Fourth Amendment to the United States Constitution 11 so as to set forth three tiers of police-citizen encounters.12 These encounters involve “(1) communication between police and citizens involving no coercion or detention ..., (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.” 13
In a first-tier encounter, “police may approach citizens, ask for identification, ask for consent to search, and otherwise freely question the citizen without any basis or belief of criminal activity so long as the police do not detain the citizen or convey the message that the citizen may not leave.” 14 But it is well settled that “a citizen's ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter.” 15 Indeed, “[e]ven running from police during a first-tier encounter is wholly permissible.” 16 And an individual “may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint....” 17
In a second-tier encounter, even in the absence of probable cause, a police officer may “stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.” 18 But to do so, the officer must have “more than a subjective, unparticularized suspicion or hunch.” 19 Indeed, the officer's action “must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion....” 20 Additionally, the officer “must have some basis from which the court can determine that the detention was neither arbitrary nor harassing.” 21
And here, Ewumi moved to suppress the evidence found as a result of his arrest because he argued that the arrest was unlawful. But after hearing testimony from both the arresting officer and Ewumi, the trial court denied the motion, finding that the initial contact between the officer and Ewumi was a first-tier encounter; the officer's testimony was more credible; Ewumi made furtive and evasive movements; Ewumi ran from the officer and ignored a command to stop; given the late hour, high-crime location, and ongoing investigation, the encounter elevated to a justified second tier when Ewumi began to flee; and all of these factors made the arrest and subsequent search lawful. We disagree.
Both the testimony at trial and at the motion-to-suppress hearing established the same largely undisputed factual scenario: The officer approached Ewumi and indicated that he wished to speak with him; Ewumi muttered an inaudible reply and continued walking away; the officer approached Ewumi more quickly, asked him to come over, and Ewumi began to run toward his building; Ewumi ignored commands to stop; and a struggle ensued after Ewumi tripped on the stairway and after the officer attempted to handcuff and arrest him. Ewumi explained at both the motion-to-suppress hearing and at trial that he ignored the officer's commands because he “did nothing wrong” (although he admitted to not wanting the officer to discover the marijuana on his person), was merely trying to reach his home, and had not been informed that the officer was conducting an investigation.
Based on these facts, we agree with the trial court that the initial encounter between Ewumi and the officer— i.e., when the officer first approached Ewumi and indicated that he wished to speak with him—was a first-tier encounter.22 Indeed, the State has not argued or attempted to show that the initial encounter was a second-tier such that the officer's conduct was supported by reasonable, articulable suspicion. As such, Ewumi was unquestionably entitled to walk away from same.23
And the fact that Ewumi exercised his right to walk away from a first-tier encounter and avoid the officer did not give rise to reasonable, articulable suspicion to instigate a second-tier encounter,24 which the officer did by quickening his approach toward Ewumi and indicating that compliance with the request might be compelled.25 Indeed, these facts present a situation that is different from those in which we have held that flight from a first-tier encounter warranted a stop after the citizen voluntarily spoke with an officer, gave suspicious answers to questions, and then fled.26
When the officer was asked why he continued to pursue Ewumi, he testified that he became suspicious when Ewumi appeared and began walking toward the building where gunshots were reported; thus, the officer wanted to identify Ewumi. And when pressed to describe what exactly was suspicious about Ewumi, the officer testified that it was after midnight in a high-crime area; Ewumi wore a hoodie that covered his head and obscured his hands in his pockets; he walked in a slumped position; and he stepped away from the officer upon the initial approach. The officer also testified that drugs and weapons are often found on individuals with whom officers make contact in that area, and opined that he continued to approach Ewumi because But the officer also admitted that Ewumi made no threatening gestures toward the officer upon being approached and did not act as though he had a weapon.
Even when considering the totality of the circumstances, these facts do not amount to an objective, articulable suspicion of criminal activity to warrant a second-tier detention.27 It is well established that “mere presence in an area of suspected crime is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” 28 Moreover, an officer's feeling that a person is acting “in a suspicious way does not amount to a particularized and objective basis for suspecting him of criminal activity.” 29 And here, none of Ewumi's described...
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