State v. Burks

• Decision Date: 19 October 1999
• Docket Number: No. A99A1459., No. A99A1458
• Parties: The STATE v. BURKS. Burks v. The State.
• Court: Georgia Court of Appeals

523 S.E.2d 648

240 Ga. App. 425

The STATE v. BURKS.

Burks v. The State.

Nos. A99A1458, A99A1459.

Court of Appeals of Georgia.

October 19, 1999.

Kelly R. Burke, District Attorney, A. James Rockefeller, Assistant District Attorney, for appellant.

The Lucas Firm, Alex H. Morrow, Warner Robins, for appellee.

BLACKBURN, Presiding Judge.

Gabriel Burks was indicted on charges of obstruction of an officer, aggravated assault, loitering or prowling, public drunkenness, criminal trespass, and possession of cocaine. In Case No. A99A1458, the State appeals the trial court's order suppressing Burks' positive drug test results. In Case No. A99A1459, Burks cross-appeals the trial court's denial of a motion to suppress all evidence obtained as a result of an allegedly illegal arrest. The cases were combined for the purpose of this appeal. Because the trial court correctly denied Burks' motion to suppress by finding that his arrest was valid, but incorrectly granted his motion to suppress by finding that State action was involved in the testing of Burks' urine, we affirm in part and reverse in part the decision of the trial court.

The standard of review of a trial court's decision on a motion to suppress requires that "an appellate court must adopt the trial court's findings of fact unless they are clearly erroneous and not supported by any evidence admitted at the suppression hearing." State v. David, 269 Ga. 533, 535(1), 501 S.E.2d 494 (1998). However, "where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review." Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994).

Case No. A99A1459

The material facts applicable to Burks' cross-appeal are undisputed. Three police officers were dispatched to arrest a subject unrelated to this case on February 25, 1997, at approximately 4:15 a.m. The officers went to a building located at 201 South Second Street, Warner Robins. This building was on private property and was a reputed location for drug activity. Officer Brian Smith positioned himself at the back of this building to prevent anyone from escaping through the back door. While Officer Smith was in the back, Burks entered the fenced-in backyard through an opening in the fence and proceeded toward the back door where Officer Smith was located. Burks had a hood over his head and his hands in his coat pockets. When Burks proceeded closer to the door, Officer Smith drew his gun and yelled, "Stop, police!" At this point, Smith was unaware whether Burks had any weapons in his possession. Upon hearing Officer Smith's instruction, Burks ran. After a pursuit, Smith caught Burks, struggled with him, and finally subdued him with the help of the two other officers on the scene.

1. Burks alleges that his arrest was illegal, and that any evidence subsequent to that arrest should have been suppressed. Burks contends that he was arrested at the moment Officer Smith drew his gun and told him to stop. Burks further contends that this act was illegal because Officer Smith had no reason to suspect any criminal activity on the part of Burks.

"Under our law, there are three levels of police-citizen encounters. In the first level, 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. This tier provides no Fourth Amendment protection.... 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 omitted.) State v. Banks, 223 Ga.App. 838, 839-840, 479 S.E.2d 168 (1996). The third tier of police-citizen encounters include[s] "full-scale arrests that must be supported by probable cause." (Punctuation omitted.) Alexander v. State, 166 Ga.App. 233, 234(2), 303 S.E.2d 773 (1983).

State v. Kaylor, 234 Ga.App. 495, 496-497, 507 S.E.2d 233 (1998). See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Burks contends he was illegally arrested after he entered the property through an opening in the fence and Officer Smith drew his gun and ordered him to stop. Because Burks was not arrested when he was ordered to stop, we disagree. "An investigatory stop is not automatically an arrest simply because an officer is armed with a shotgun." Franklin v. State, 143 Ga.App. 3, 5, 237 S.E.2d 425 (1977). Additionally, "[i]t is often necessary for the police to approach a person with a drawn weapon in a suspiciously dangerous situation in order to protect the physical well-being of both police officers and the public." Id. Officer Smith reasonably believed that any person coming onto this particular property under the outlined circumstances warranted investigation and could also pose a danger to him. It was certainly reasonable for him to inquire as to why anyone would enter the property at 4:15 a.m.

After the initial attempt to stop, "`[f]light in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search.'" Howie v. State, 218 Ga.App. 45, 46(1), 459 S.E.2d 179 (1995). After Smith made the attempted investigative stop, Burks ran. "Flight at the approach of law officers is a strong indicium of mens rea." State v....