Gayton v. State

• Decision Date: 03 November 2021
• Docket Number: A21A0939
• Parties: GAYTON v. THE STATE
• Court: Georgia Court of Appeals

GAYTON v. THE STATE

No. A21A0939

Court of Appeals of Georgia, Second Division

November 3, 2021

MILLER, P. J., HODGES and PIPKIN, JJ.

PIPKIN, JUDGE

James Mitchell Gayton appeals his conviction for possession of a firearm by a first-offender probationer, arguing that the trial court erred by denying his motion to suppress and that the evidence was insufficient to support his conviction. Because we conclude that the trial court erred by denying Gayton's motion to suppress, we reverse.

In reviewing a ruling on a motion to suppress,

[A]n appellate court must construe the evidentiary record in the light most favorable to the trial court's factual findings and judgment. Moreover, an appellate court generally must accept the trial court's factual findings unless they are clearly erroneous, and also generally must limit its consideration of the disputed facts to those expressly found by the trial court. 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.

(Citations and punctuation omitted.) Westbrook v State, 308 Ga. 92, 96 (2) (839 S.E.2d 620) (2020). Viewed in the appropriate light, the evidence presented at the suppression hearing and at trial, ^[1] which consisted of the testimony of the three officers who detained Gayton Troy Embrey, Chris Glowcheski, and Nicholas Sotor, shows the following.

In the afternoon of March 5, 2014, the officers responded to a police lookout call, also known as a BOLO, for a probationer who fled from officers attempting to serve a warrant. The suspect, whose name was provided to the officers, was described as a white man with dark hair wearing a white t-shirt and jeans. Only Glowcheski viewed a photograph of the suspect.

Embrey told Glowcheski and Sotor about an "old, abandoned house" located nearby that he had learned was suspected of being used for "drug activity"; the officers decided to begin their search at the abandoned house. After searching the inside of the house and the outbuildings, the officers fanned out in preparation to search the woods behind the house. Before entering the woods, however, Embrey saw Gayton stand up in the woods approximately 15 to 30 yards away; Embrey immediately drew his weapon, pointed it at Gayton, and ordered Gayton to show his hands, exit the woods, and walk toward Embrey. Gayton complied.

Embrey testified that he stopped Gayton because he thought he had located the fleeing suspect, but, as Gayton drew nearer, he saw that Gayton wore a camouflage jacket and pants and had binoculars hanging around his neck. Knowing that the suspect was not wearing camouflage, Embrey "started to think" that Gayton was "just some person [he] happened to come across," and "as the distance decreased" between him and Gayton, he determined that Gayton was not the suspect. Embrey testified that, as Gayton approached him, he recognized Gayton's face but could not "recall from where."

Hearing Embrey's orders, Sotor and Glowcheski went to his location; like Embrey, they determined that Gayton was not the suspect. Glowcheski noticed a "bulge" on Gayton's side, about which he inquired. Gayton identified the bulge as a handgun, and Glowcheski instructed Gayton to keep his hands raised to allow Glowcheski to remove the loaded handgun from Gayton's side.

A few minutes later, Embrey asked Gayton where he lived. Gayton pointed in the direction of a nearby road, at which point, Embrey "put two and two together" and recalled that "about a year, year and a half before that, when [he] was part of the SWAT team, [the team] had a call-out at a house that [Gayton] was pointing towards." Embrey concluded that he knew Gayton from the call-out and "assumed that he probably was a convicted felon [and] shouldn't have [the] firearm." When asked, Gayton admitted to having been convicted of a felony as a first-time offender but indicated that the conviction had been expunged. The officers detained Gayton for 25 to 30 minutes while they attempted to identify him in order to determine if he was legally authorized to possess the firearm. Gayton gave his name as "Micky Gayton" and his correct birth date, but the officers could not locate him in searches of various databases. Because they were unable to identify Gayton, the officers returned his weapon, which Glowcheski had unloaded, instructed him to go home, and resumed their search for the suspect.

Later that day, the officers determined Gayton's identity and learned that he was on first-offender probation. Gayton was arrested the next day and indicted on charges of possession of a firearm by a first-offender probationer and giving a false name. Before trial, Gayton moved to suppress evidence obtained as a result of his detention, arguing that the officers stopped, detained, searched, and interrogated him without probable cause, without his consent, and without reasonable and articulable suspicion. The trial court held a pre-trial hearing on Gayton's motion to suppress at which the State presented the testimony of Officers Embrey, Glowcheski, and Sotor; the trial court thereafter denied Gayton's motion.

The case proceeded to trial, where the evidence adduced by the State was limited to testimony regarding Gayton's detention, search, and subsequent arrest and booking, as well as his first-offender probationer status.^[2] Sotor, who was also one of the arresting officers, testified that the gun found during Gayton's detention was not taken into evidence at Gayton's arrest, the officers did not apply for a search warrant for the gun, and the arresting officers did not attempt to locate the gun at the time of arrest. The jury found Gayton guilty of possession of a firearm by a first-offender probationer but not guilty of giving a false name. The trial court sentenced Gayton to serve three years in prison concurrent to any sentence he would be required to serve as a result of violating his probation terms. Gayton filed a timely motion for new trial, which the trial court denied without a hearing. This appeal followed.

1. Gayton argues, as he did below, that his detention was unreasonable and thus violated the Fourth Amendment. We agree.

When evidence is obtained in violation of the Fourth Amendment's protection against unreasonable searches and seizures, "the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure." (Citation and punctuation omitted.) Mobley v. State, 307 Ga. 59, 68 (4) (834 S.E.2d 785) (2019). To implicate the Fourth Amendment, a police-citizen encounter must amount to a seizure, which occurs "only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." (Citation and punctuation omitted.) State v. Walker, 295 Ga. 888, 890 (764 S.E.2d 804) (2014). See also Culpepper v. State, 312 Ga.App. 115, 118 (717 S.E.2d 698) (2011) ("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.").

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.

(Citation and punctuation omitted.) Id.

As an initial matter, the trial court concluded that Gayton was "seized within the meaning of the Fourth Amendment because he was not free to leave and that his detention constituted "at least" a brief seizure - a so-called Terry^[3] stop - that must be supported by reasonable suspicion. Specifically, the trial court found that the "initial encounter" was a seizure, noting that Embrey's "initial response" upon seeing Gayton was "to draw his handgun and point it at [Gayton] along with giving terse verbal commands directing [Gayton] to show Embrey his hands." The trial court further found that "the extended detention" of Gayton did not de-escalate to a consensual encounter at any point prior to his release. These determinations are amply supported by both the applicable law and the record, including Embrey's testimony that Gayton was not free to leave upon being stopped.^[4] We proceed, then, to address whether Gayton's seizure ran afoul of the Fourth Amendment.

"As with any Fourth Amendment analysis, the touchstone of our inquiry is the reasonableness of the officer's conduct which is measured in objective terms by examining the totality of the circumstances." Young v. State, 310 Ga.App. 270, 273 (712 S.E.2d 652) (2011). An officer is justified in conducting a brief investigative detention where, under the totality of the circumstances, he "had 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." (Citation and punctuation omitted.) Kinsey v. State, 326 Ga.App. 616, 619 (1) (757 S.E.2d 217) (2014). See also United States v. Bullock, 632 F.3d 1004, 1014-1015 (II) (A) (1) (7th Cir. 2011) ("A Terry investigative stop is a brief detention which gives officers a chance to verify (or dispel) well-founded suspicions that a person has been, is, or is about to be engaged in...