Peters v. State, A99A2046.
Decision Date | 16 March 2000 |
Docket Number | No. A99A2046.,A99A2046. |
Citation | 242 Ga. App. 816,531 S.E.2d 386 |
Court | Georgia Court of Appeals |
Parties | PETERS v. The STATE. |
OPINION TEXT STARTS HERE
Gerard B. Kleinrock, Atlanta, for appellant.
J. Tom Morgan, District Attorney, Maria Murcier-Ashley, Thomas S. Clegg, Assistant District Attorneys, for appellee.
Carlos Peters appeals from his conviction of possessing cocaine with the intent to distribute it. In this appeal, Peters argues (1) the trial court erred by denying his motion to suppress; (2) insufficient evidence supports his conviction; and (3) the trial court erred when it recharged the jury without notifying him or his counsel. For reasons that follow, we reverse.
The evidence presented during the motion to suppress hearing, and at trial,1 showed that two armed and uniformed DeKalb County police officers prevented Peters from getting into his car and leaving an apartment complex because they "observed a black male, the defendant, come out of a breezeway in a hurried fashion." The officers testified that the breezeway from which Peters exited was known for heavy drug sales. When Peters saw the officers, he became very nervous and continued to hurry out of the complex toward his car. After stopping Peters and asking him for identification, Officer West reached into Peters' pants and removed a "three to four-inch cookie-sized chunk" of crack cocaine and two bags of marijuana.
[United States] Supreme Court holdings sculpt out, at least theoretically, 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.
(Citations and punctuation omitted.) McAdoo v. State, 164 Ga.App. 23, 26(1), 295 S.E.2d 114 (1982).
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. The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, 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.
(Citations and punctuation omitted.) McClain v. State, 226 Ga.App. 714, 716(1), 487 S.E.2d 471 (1997).
In order to address Peters' first enumeration of error, we must first determine whether the initial contact between the officers and Peters should be categorized as a first- or a second-tier encounter. Because the officers verbally commanded Peters to stop and prevented him from entering his automobile, we find that it was a second-tier encounter for which a reasonable, articulable suspicion of criminal activity was required. See State v. Blair, 239 Ga.App. 340, 521 S.E.2d 380 (1999).
In this case, the officers lacked the requisite suspicion. Peters did not flee from a high drug sale area at the sight of the officers. Compare Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) ( ); Harris v. State, 205 Ga.App. 813, 814(1), 423 S.E.2d 723 (1992) ( ). Instead, Peters continued hurrying toward his car, just as he was before he spotted the officers. See State v. Winnie, 242 Ga.App. 228, 529 S.E.2d 215 (2000). Appearing nervous in the presence of police officers also falls short of the reasonable, articulable suspicion required by Terry. See Holt v. State, 227 Ga.App. 46, 50, 487 S.E.2d 629 (1997).
Since the officers stopped Peters without a reasonable, articulable suspicion that he was engaged or about to engage in criminal activity, the trial court erred when it denied his motion to suppress evidence seized as a result of this unlawful stop and seizure of his person.
Judgment reversed.
I concur fully in the majority opinion and write only to make clear certain, specific facts of this case.
1. The record regarding the stop is quite clear. It is uncontroverted that Officers West and Waltower verbally ordered Peters to stop and, after he obeyed their command, the officers approached Peters for questioning. The officers did so solely because Peters was "hurrying" away from a known drug sale location. Peters appeared "nervous" to the officers only after he had already been stopped as shown by the following testimony first from the suppression hearing:
and also from the trial:
That Peters may have appeared "nervous" or looked like he wanted an "escape avenue" when he was stopped cannot, after the fact, supply reasonable articulable suspicion to do what the officers had already done. Hurrying to one's automobile—even in a known drug sale location—is not, alone, sufficient to erode the people's constitutional right against unreasonable government intrusion. See, e.g., Hughes v. State, 269 Ga. 258, 260, 497 S.E.2d 790 (1998). Unsupported by any reasonable articulable suspicion that Peters was engaging or about to engage in criminal activity, the stop was an unconstitutional detention.
2. Even if the officers had been able to articulate a reasonable suspicion to justify a second-tier Terry stop of Peters, the subsequent search was bad. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). There were no exigent circumstances which would permit the officers to abandon a Terry protective pat-down, reach into the compliant suspect's pants, and remove a paper towel to see what is in it.
In Terry v. Ohio, supra, the court's emphasis upon the procedures followed by the officer indicates that a two-step process must ordinarily be followed: (1) The officer must pat down first, and (2) then intrude beneath the surface only if he comes upon something which feels like a weapon.
Clark v. State, 208 Ga.App. 896, 900, 432 S.E.2d 220 (1993). State v. Newton, 227 Ga.App. 394, 396(1), 489 S.E.2d 147 (1997). But implicit in...
To continue reading
Request your trial-
Hernandez-Espino v. State, A13A1434.
...walking back toward a car parked on the side of the road did not provide reasonable articulable suspicion. In Peters v. State, 242 Ga.App. 816, 816–817(1), 531 S.E.2d 386 (2000), we held that officers' observation of the defendant hurrying out of an apartment complex breezeway that was know......
-
State v. Walker
...stop when the officer told him to remove his hands from his pockets,” and the suspect removed one hand.); Peters v. State, 242 Ga.App. 816, 818, 531 S.E.2d 386 (2000) (The suspect “obeyed [the officers'] command” to stop.) (Eldridge, J., concurring specially.)Walker also contends that Sams ......
-
Walker v. State, A11A1640.
...and (3) full-scale arrests that must be supported by probable cause.(Citations and punctuation omitted.) Peters v. State, 242 Ga.App. 816, 816–817(1), 531 S.E.2d 386 (2000). “A police-citizen encounter remains consensual and does not implicate the Fourth Amendment so long as a reasonable pe......
-
The State v. Nesbitt
...Brown v. State, 301 Ga.App. 82, 686 S.E.2d 793 (2009); State v. Dukes, 279 Ga.App. 247, 630 S.E.2d 847 (2006); Peters v. State, 242 Ga.App. 816, 817, 531 S.E.2d 386 (2000). 34. See Wolf v. State, 291 Ga.App. 876, 878(1), 663 S.E.2d 292 (2008) (what a person knowingly exposes to the public i......
-
Criminal Law - Laura D. Hogue and Franklin J. Hogue
...State, 166 Ga. App. 233, 234, 303 S.E.2d 773, 774 (1983). See White v. State, 267 Ga. App. 200, 598 S.E.2d 904 (2004); Peters v. State, 242 Ga. App. 816, 817, 531 S.E.2d 386, 387-88 (2000); McAdoo v. State, 164 Ga. App. 23, 295 S.E. 114 (1982). 80. White, 267 Ga. App. at 201, 598 S.E.2d at ......