Hernandez-Espino v. State, A13A1434.

• Citation: 752 S.E.2d 10,324 Ga.App. 849
• Decision Date: 19 November 2013
• Docket Number: No. A13A1434.,A13A1434.
• Parties: HERNANDEZ–ESPINO v. The STATE.
• Court: Georgia Court of Appeals

324 Ga.App. 849

752 S.E.2d 10

HERNANDEZ–ESPINO

v.The STATE.

No. A13A1434.

Court of Appeals of Georgia.

Nov. 19, 2013.

Stephen Michael Reba, for Appellant.

Lee Darragh, Dist. Atty., Jennifer C. Bagwell, Asst. Dist. Atty., for Appellee.

McFADDEN, Judge.

We granted Jose Herminio Hernandez–Espino's application for interlocutory review of the trial court's denial of his motion to suppress crack cocaine found in his pocket during a search to which he consented. We agree with Hernandez–Espino that his consent to the search was tainted because it occurred during an unlawful second-tier encounter with law enforcement officers. Accordingly, we reverse.

“[T]he burden of proving a search was lawful is on the state. The state thus has the burden of proving the validity of a consensual search. Moreover, we are required to scrutinize closely an alleged consent to search.” Foster v. State, 285 Ga.App. 441, 442, 646 S.E.2d 302 (2007) (citations and punctuation omitted). In reviewing the denial of a motion to suppress on appeal, “we owe no deference to the way in which the trial court resolved questions of law, but we generally accept its findings about questions of fact and credibility unless clearly erroneous.” Edenfield v. State, 293 Ga. 370, 374(2), 744 S.E.2d 738 (2013) (citation and footnote omitted).

The only evidence presented at the hearing on Hernandez–Espino's motion to suppress was the testimony of a law enforcement officer. He testified that on February 7, 2012, he and another officer were working an extra shift at an apartment complex that had been experiencing problems with crime, including drug activity. The officer was wearing his police uniform and an armored vest and was carrying his weapon. Around 9:00 p.m., he saw Hernandez–Espino emerge from a building that he testified had been identified as a location in which narcotics were sold. The officer approached Hernandez–Espino and asked if he lived in the complex. Hernandez–Espino replied that he did not, but that he was there visiting a friend. The officer asked for the friend's name, and Hernandez–Espino said he did not know but pointed to an apartment.

The officer, who was familiar with the residents of that apartment, testified that he “just knew that [Hernandez–Espino] wasn't telling the truth.” He said to Hernandez–Espino, “man, just give me the drugs you just bought.” Hernandez–Espino denied having any drugs. The officer then asked for consent to search, and Hernandez–Espino agreed. The officer found crack cocaine in Hernandez–Espino's pocket.

Hernandez–Espino argues that the trial court erred in denying his motion to suppress evidence of the crack cocaine, because that evidence was the product of an illegal search. Specifically, he argues that the officer escalated their encounter to a second-tier encounter by demanding that Hernandez–Espino “give [him] the drugs [he] just bought,” that the officer lacked the reasonable articulable suspicion required for a second-tier encounter,and that the unlawful second-tier encounter tainted his consent. We agree.

1. The encounter escalated to a second-tier encounter.

In construing [the Fourth Amendment to the United States Constitution], the Supreme Court of the United States has set forth—including most notably in Terry v. Ohio [, 392 U.S. 1, 21(III), 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ]—three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

In the Interest of J.B., 314 Ga.App. 678, 680(1), 725 S.E.2d 810 (2012) (citation and punctuation omitted).

The initial contact between the officers and Hernandez–Espino was a first-tier encounter. “In the first tier, 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.” State v. Dukes, 279 Ga.App. 247, 248–249, 630 S.E.2d 847 (2006) (citation omitted).

When the officer stated, “give me the drugs you just bought,” however, he escalated the encounter to the second tier.

In determining whether a police-citizen encounter constituted a [second-tier] seizure, a court must answer whether, considering all the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.

Cutter v. State, 274 Ga.App. 589, 592(1), 617 S.E.2d 588 (2005) (citation omitted). Circumstances that might demonstrate a second-tier encounter include “the use of language or tone of voice indicating compliance with the officer's request might be compelled.” Id. (citation omitted). Accordingly, we have found that a second-tier encounter occurred in circumstances where an officer used imperative language that directed a citizen to take a particular action. See Brown v. State, 301 Ga.App. 82, 84–85, 686 S.E.2d 793 (2009) (officer directed defendant to remove his hands from his pockets, thereby escalating encounter from first tier to second tier).

The officer in this case, who was uniformed and carrying a weapon, approached Hernandez–Espino and, after a brief conversation, ordered him to take a particular action: “give me the drugs you just bought.” The officer used those exact words. The evidence that he did so is uncontroverted. He put them in quotation marks in his police report. At the hearing he testified three times that those were his words. And the officer's testimony went on to dispel any doubt that those words were an order. Asked on direct examination if he had, “testified that you asked him if he had just bought some drugs,” the officer interjected a correction: “No I didn't ask him if he bought drugs. I told him to give me the drugs he just bought.” ¹ On cross he agreed to defense counsel's characterization of those words as a demand. Defense counsel asked: “[T]hat's when you make the demand, [‘]give me the drugs you just bought[’]; correct?” The officer responded: “Correct.”

We therefore conclude that the officer's words were not a request that Hernandez–Espino was free to ignore. The officer's conduct and statement “would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.” Cutter, 274 Ga.App. at 592(1), 617 S.E.2d 588 (citation omitted). Compare Owens v. State, 192 Ga.App. 671, 673–674(1), 385 S.E.2d 761 (1989) (circumstances showed first-tier encounter where plain-clothed officers who were not displaying guns walked up beside airline passenger in airport and asked for, rather than demanded, his ticket and identification).

Contrary to the dissent, we may not defer to the trial court's characterization of the encounter as first-tier. We must employ a de novo review because the evidence was uncontroverted and nothing in the trial court's order suggested that it questioned the credibility of the officer, who was the sole testifying witness. See Jones v. State, 291 Ga. 35, 36–37(1), 727 S.E.2d 456 (2012) (“When the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court's application of law to the undisputed facts.”) (citation omitted); Corey v. State, 320 Ga.App. 350, 350–351, 739 S.E.2d 790 (2013) (applying de novo standard of review where only evidence is officer's undisputed testimony and officer's credibility has not been challenged). Moreover, the trial court made no finding on the dispositive issue of whether “a reasonable person in [Hernandez–Espino's] position would have felt free to decline the officer's [direction to give him the drugs] or otherwise terminate the encounter,” as required for a first-tier encounter. Thomas v. State, 301 Ga.App. 198, 200(1), 687 S.E.2d 203 (2009) (citation and punctuation omitted). Instead, the trial court found that the encounter remained first-tier because Hernandez–Espino himself did not consider the officer's statement to be a command, which the trial court concluded because Hernandez–Espino did not respond by handing over drugs. Whether an officer-citizen encounter is a first-or second-tier encounter, however, is not governed by the citizen's willingness to comply with the officer. See Walker v. State, 323 Ga.App. 558, 560(1)(a), 747 S.E.2d 51 (2013) (officer's command that defendant remove hands from pockets turned first-tier encounter into second-tier stop requiring reasonable articulable suspicion, even though defendant did not comply with command).

To find that the encounter in this case remained first-tier, we would have to assume that, despite the officer's uncontroverted testimony that he commanded Hernandez–Espino to give him the drugs, the officer used a tone of voice that gave those words a different meaning. The trial court made no such finding and nothing in the record gives us a basis for reaching such a conclusion on de novo review.

This is not a close case. We are not called upon to draw a close, technical distinction. The officer's words were a command, and there is no evidence that they were anything other than a command. But even if this were a close case and we were called upon to draw a fine line, it would be our duty to draw such a line.

The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that...