In re J.B.

• Decision Date: 09 March 2012
• Docket Number: No. A11A2074.,A11A2074.
• Citation: 314 Ga.App. 678,725 S.E.2d 810,12 FCDR 1054
• Parties: In the Interest of J.B., a child.
• Court: Georgia Court of Appeals

314 Ga.App. 678

725 S.E.2d 810

12 FCDR 1054

In the Interest of J.B., a child.

No. A11A2074.

Court of Appeals of Georgia.

March 9, 2012.

Kimberly Ann Gross, Jonesboro, for appellant.

Scott L. Ballard, Dist. Atty., David J. Younker, Robert Wright Smith, Jr., Asst. Dist. Attys., Christy Robert Jindra, for appellee.

DILLARD, Judge.

Following a bench trial, a juvenile court found 16–year–old J.B. delinquent for committing the offenses of carrying a concealed weapon, possession of a handgun by a minor, and loitering. J.B. now appeals, arguing that the juvenile court erred in denying his motion to suppress unlawfully obtained evidence and in finding that the evidence was sufficient to prove beyond a reasonable doubt that he committed the offense of loitering. For the reasons set forth infra, we reverse the denial of J.B.'s motion to suppress and the adjudication of delinquency.

Viewed in the light most favorable to the juvenile court's findings and judgment,¹ the evidence shows that around 3:00 p.m. on February 22, 2011 (a day the local schools were on break), four officers in the Griffin Police Department's Crime Suppression Unit were on patrol in two separate squad cars when they observed several young males, including J.B., gathered in a vacant lot at the corner of Meriwether and Fifteenth Street. Because the officers were aware that illegal drug and street gang activities frequently occurred in the vacant lot itself and in the surrounding area, the officers decided as they drove by that they would investigate the young men if they were still gathered in the lot after the officers turned around. The officers in the first squad car then turned around, while the officers in the second car drove around the block and parked near to where a path leading to the back of the vacant lot exited onto an adjacent street that is routinely used by pedestrians walking to a nearby apartment complex.

As the officers in the first squad car returned to the front of the vacant lot, parked, and exited their vehicle, three of the young men, including J.B., began traipsing away via the path at the back of the lot. However, before they reached the street where the path exited, they encountered the two officers who had parked there. J.B. and the other two young men—who were a “ good distance” behind him—stopped, and one of the officers asked J.B., who appeared to be sweating and out of breath as if he had been running, “what's your hurry?” And when J.B. failed to reply, the officer asked J.B. whether he was running away from the two other young men or from the officers in the lot. Again, J.B. did not reply, and the officer then directed J.B. to walk back down to the vacant lot “till we find out what's going on.” The officers then ordered the other two young men to accompany them (along with J.B.) back to the vacant lot in order to determine what exactly was “going on.” And while walking back to the lot, the officers observed the two young men who had been behind J.B. drop their black bandanas into some nearby bushes.

Once they had arrived back at the vacant lot, the officers asked the young men what they were doing, and one of the men responded that they were just “walking through.” Unconvinced by this explanation and recognizing one of the young men as a gang member whom the officer had arrested on a weapons charge in the past, the officer began searching all of them. And while patting down J.B., the officer discovered a black bandana in J.B.'s front pocket similar to the bandanas dropped by the other two young men, indicating that J.B. was likewise affiliated with the same street gang. As the officer continued his pat-down, he noticed that J.B. was attempting to keep his knees and feet close together, so the officer ordered him to spread his feet apart. J.B. refused to comply, and when the officer reached near the waistband of J.B.'s pants, J.B. suddenly attempted to do the same. And as a result, the officer grabbed J.B.'s arms and handcuffed him. The officer then resumed his pat-down, at which point a small caliber handgun that had been concealed inside J.B.'s pant-leg fell to the ground.

A complaint and delinquency petition were filed in juvenile court, charging J.B. with carrying a concealed weapon,² possession of a handgun by a minor,³ and loitering.⁴ Shortly thereafter, J.B. filed a motion to suppress the handgun, arguing that it was discovered as a result of the police officers' unlawful detention and search.

On March 22, 2011, the juvenile court held a hearing on J.B.'s motion to suppress, which it denied based upon the testimony of the two investigating officers. Immediately following that denial, the juvenile court conducted a bench trial, which concluded with the court finding that sufficient evidence supported the charges against J.B. Consequently, the court adjudicated him delinquent. This appeal follows.

1. J.B. contends that the juvenile court erred in denying his motion to suppress, arguing that the police officers had no reasonable articulable suspicion that he was engaging in criminal activity so as to justify detaining and searching him. We agree, and therefore, reverse the denial of J.B.'s motion.

At the outset, we note that “[o]n a motion to suppress, the burden of proving the search was lawful is on the [S]tate.” ⁵ And 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.” ⁶ Additionally, because the trial court is the trier of fact, “its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them.” ⁷ With these guiding principles in mind, we now turn to an analysis of J.B.'s argument that the officers' detention and search were unlawful.

Our analysis necessarily begins with the Fourth Amendment to the United States Constitution, which provides, inter alia, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated....” ⁸ In construing this amendment, the Supreme Court of the United States has set forth—including most notably in Terry v. Ohio⁹—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.” ¹⁰

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.” ¹¹

And here, the initial encounter between J.B. and the police officers occurred when J.B. was walking away from the vacant lot on the path leading to another street. At that point in time, the only objective observations the officers had made regarding J.B. was that he was a “good distance” ahead of the other two young men and appeared to be sweating and out of breath.¹² But instead of merely questioning J.B. regarding what he was doing, the officers who first encountered J.B. while waiting for him near the path's exit, stopped him and directed him to return to the vacant lot.

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 [.]” ¹³ However, here, the officers waiting at the path's exit blocked J.B. and directed him to return to the vacant lot. And no reasonable person in J.B.'s position would have felt free to decline the officers' request or otherwise terminate the encounter.¹⁴ Indeed, the investigating officer who ordered J.B. back to the vacant lot explicitly testified at the hearing that at the time he issued this directive J.B. was not free to leave. Thus, the officers' stop of J.B. “was a second-tier, investigative detention that required the [officers] to have a particularized and objective basis for suspecting that [J.B.] was or was about to be involved in criminal activity.” ¹⁵

Under Terry, a police officer, “even in the absence of probable cause, 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.” ¹⁶ In doing so, “[t]he officer's action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion, and the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing.” ¹⁷Furthermore, “[w]hile a mere hunch is not enough to render an investigative detention reasonable, law enforcement officers are permitted to draw upon their own experience and training in assessing the circumstances in which they find themselves [.]” ¹⁸ And thus when a court is considering the reasonableness of an investigative detention, it “properly defer[s] to reasonable inferences and deductions drawn by officers in light of their experience and training.” ¹⁹

In the case sub judice, the investigating officers testified during the motion-to-suppress hearing that their detention of J.B. and the other young men was based on the fact that the suspects were gathered in a vacant lot known for drug and gang-related activity and that three of them, including J.B., began walking away when officers approached them. Specifically, the officer that first made contact with J.B. did not observe him wearing a gang-related bandana and only testified that J.B. appeared to be out of breath, was sweating, and was a “good distance” ahead of the other two young men on the path when the...