Glenn v. State, S19G1236

CourtSupreme Court of Georgia
Citation849 S.E.2d 409
Decision Date05 October 2020
Parties GLENN v. The STATE.
Docket NumberS19G1236

849 S.E.2d 409



Supreme Court of Georgia.

Decided: October 5, 2020

Benjamin Alston Pearlman, Western Judicial Circuit Public Defender, 440 College Avenue North, Suite 220, Athens, Georgia 30601, Attorneys for the Appellant.

Kenneth W. Mauldin, Brian Vance Patterson, Chief A.D.A., Western Judicial Circuit District Attorney's Office, 325 East Washington Street, Room 370, Athens, Georgia 30601, Attorneys for the Appellee.

Ellington, Justice.

We granted Christopher Glenn's petition for a writ of certiorari to consider whether the Court of Appeals erred in affirming the trial court's order revoking Glenn's probation based on its determination by a preponderance of the evidence that Glenn committed the felony offense of interference with government property by kicking and damaging the door of a police car when he was detained inside. See Glenn v. State , 350 Ga. App. 12, 827 S.E.2d 698 (2019).1 Glenn's claim that he

849 S.E.2d 411

damaged the door in the course of exercising his common-law right to resist an unlawful arrest and detention, which was rejected by the trial court and by the Court of Appeals, raises two substantive questions: whether a person has a common-law right to attempt to escape from the detention resulting from an unlawful arrest and, if so, whether a person may damage government property in such an attempt. For the reasons explained below, we hold that the common-law right to resist an unlawful arrest includes the right to use proportionate force against government property to escape an unlawful detention following the arrest. Because the trial court found that Glenn's arrest was unlawful but did not then consider whether the force he used in attempting to escape the ensuing unlawful detention was proportionate, we vacate the Court of Appeals’ decision with direction that the case be remanded to the trial court to make this essential determination.

The trial court conducted an evidentiary hearing to determine whether to revoke Glenn's probation for violating the conditions of a June 2017 probationary sentence by committing the new offenses of loitering and prowling, obstruction of a law enforcement officer, and interference with government property. At the hearing, the State presented the testimony of three police officers and played about four and a half minutes of video with audio that was recorded by one officer's body camera. That evidence showed the following. On May 3, 2018, an Athens-Clarke County police officer responded to a "suspicious-person" call in the area of the Oglethorpe Elementary School shortly after students were dismissed at 2:30 p.m. The responding officer drove around the school property in his patrol car, and for a few seconds he saw Glenn walking on the inside of a line of trees and shrubbery that bordered the road behind the school. The officer testified that he radioed to his dispatcher that he was "getting out [of his patrol car] with a subject matching the description given by the initial [911] caller."

The responding officer approached Glenn and called out to him, "let me talk to you real quick." Glenn asked if he was being detained. The officer responded, "yes," ordered Glenn to stop walking and to sit down, and radioed for backup. Glenn, who remained standing, asked the officer why he was being detained and said, "I'll tell you my name. It's Christopher Glenn. I'm walking home." The officer told Glenn that he was "conducting an investigation" and that, if Glenn moved, he would be charged with obstruction and, if he tried to flee, the officer would "use force" if he had to.

About one minute after the responding officer's initial contact with Glenn, another officer arrived. Each officer grasped one of Glenn's wrists, and they began to apply handcuffs.2 Two more officers arrived in a third patrol car and ran to join the others, followed soon thereafter by another officer in a fourth car. Glenn was handcuffed within two minutes of the responding officer's initial contact with him. While the first responding officer gripped Glenn's wrist and arm, the other officers searched his person and removed and inspected the contents of his pockets. After the search, the second officer told Glenn he was going to have to take a seat in his patrol car. Glenn said, "I want you to tell me right here, what am I being detained for?" The third officer told him, "for suspicion of a crime. A sexual assault crime

849 S.E.2d 412

against a minor."3 The responding officer testified that, after Glenn had been detained and there were enough officers to maintain control, he left that location to continue his investigation of the suspicious-person complaint at the school.4

The third officer testified that Glenn was placed in the second officer's patrol car, and within a few minutes the second officer asked for an ambulance to evaluate Glenn, who had told him that he was dehydrated. An ambulance arrived, and Glenn was placed in the treatment area of the ambulance. The supervising officer soon ordered that Glenn be removed from the ambulance, because Glenn was in custody and his condition would be assessed by jail personnel. Instead of exiting, Glenn grabbed onto a seatbelt, and the officers had to physically drag him to the rear doors of the ambulance. At the doors, Glenn flung himself toward the officers and hit the supervising officer's head with his own forehead, causing a small abrasion on the officer's cheek.

The third officer testified that Glenn became "dead weight and resistant" as officers took him to a patrol car and tried to put him in through the rear driver side door. An officer reached in from the passenger side and pulled Glenn into the car. Glenn kicked against the driver side door and fell out on the passenger side, landing on the officer who had pulled him in and knocking the officer down. The officers then tried to put Glenn back in on the passenger side, and again another officer had to pull him in from the other side of the car. Glenn kicked against the passenger side door hard enough to damage the hinges and to propel himself out of the car. He stood up on the driver side, and the supervising officer knocked him to the ground. Officers put Glenn in the patrol car for the third time. After the officers tied his legs and secured his feet to the floor, Glenn was taken to the jail.

The day after Glenn was arrested, a probation officer requested, and the trial court issued, a warrant to arrest Glenn for violating the conditions of his probation by committing the new offenses of loitering and prowling,5 obstruction of a law enforcement officer,6 and interference with government property.7 Two weeks later, the State filed a petition to revoke Glenn's probation, listing the same offenses as violations of his probation.

After presentation of evidence at the hearing on the revocation petition, the State argued that the evidence showed that Glenn committed the offense of loitering and prowling by "walking along the wooded edge of an elementary school as the school was being let out." The State argued that Glenn committed the offenses of obstruction and interference with government property by "physically resisting in multiple ways at multiple points in time" while being "detained ... pending further investigation of the reason for [the officers’] dispatch[,] ... resulting in property damage that rendered a police squad vehicle unable to close properly." In addition, the State argued that, even if the arrest was unlawful such that Glenn did not commit the offense of obstruction, the unlawfulness of the arrest would not excuse his behavior in damaging government property.

849 S.E.2d 413

Glenn argued that the evidence instead showed that the responding officer lacked probable cause to arrest him for loitering and prowling, which made the arrest unlawful. He argued that under Georgia law a person is allowed to resist an unlawful arrest with a reasonable amount of force and that it does not matter whether the force used to get away from an illegal detention is directed against an officer or against an object.

The trial court determined that the evidence did not support a finding by a preponderance of the evidence that Glenn had committed the offense of loitering and prowling. Specifically, the trial court found that, on May 3, 2018, the officers did not observe Glenn in a place at a time or in a manner not usual for law-abiding individuals and found that there was no evidence of any circumstances of the type listed in the applicable statute as warranting alarm for the safety of persons or property in the vicinity.8 The trial court noted that the officers involved failed to give Glenn, prior to arresting him, an opportunity to explain his presence and conduct so as to dispel any alarm or immediate concern which would otherwise be warranted.9 The trial court also determined that the evidence did not support a finding by a preponderance of the evidence that Glenn had committed the offense of obstruction, because there had been no basis to arrest Glenn for loitering and prowling.

But the trial court found by a preponderance of the evidence that Glenn had committed the felony offense of interference with government property by damaging the patrol car door. Specifically, the trial court found that, even though Glenn's arrest for loitering and...

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