State v. Hammond

• Citation: 313 Ga.App. 882,723 S.E.2d 89,12 FCDR 503
• Decision Date: 03 February 2012
• Docket Number: No. A11A1724.,A11A1724.
• Parties: The STATE v. HAMMOND.
• Court: United States Court of Appeals (Georgia)

12 FCDR 503

313 Ga.App. 882

723 S.E.2d 89

The STATE

v.HAMMOND.

No. A11A1724.

Court of Appeals of Georgia.

Feb. 3, 2012.

Paul L. Howard Jr., Dist. Atty., Elizabeth A. Baker, Asst. Dist. Atty., for appellant.

Kish & Lietz, Atlanta, Jessica Katherine Stern, for Hammond.

DILLARD, Judge.

Walter Hammond was indicted for various offenses related to an incident in which he was stopped by a police officer and found to possess crack cocaine. Hammond filed a motion to suppress this evidence and, following a hearing on the motion, the trial court granted same. This appeal by the State follows, in which the State contends that the trial court improperly granted Hammond's motion. For the reasons set forth infra, we reverse.

Our story begins with Hammond riding his bicycle through downtown Atlanta close to midnight, in an area known for drug activity. A police officer observed Hammond traveling in the wrong direction down a one-way street and riding without a headlight in violation of OCGA § 40–6–296. Accordingly, the officer stopped Hammond to inquire about the headlight and his direction of travel, and to request identification.

When questioned for identification, Hammond responded that he did not have an identification card but provided the officer with his name and date of birth. The officer then asked for Hammond's age, to which he responded that he was 52; however, according to the date of birth provided, Hammond was actually 53. According to the officer, this discrepancy raised a red flag. Additionally, he observed that Hammond was abnormally nervous and “fiddling” with something in his pocket, and thus, he believed that Hammond was under the influence of drugs. The officer thereafter ran Hammond's name and date of birth through the system in his patrol car, checking for any outstanding warrants.

Finding no outstanding warrants, but having no picture with which to confirm Hammond's identity, the officer returned to Hammond and immediately asked whether he was in possession of anything that the officer “needed to know about.” The officer explained that he would not arrest Hammond if he merely had a crack pipe because “everybody out here has a crack pipe.” Hammond responded that he did have a crack pipe and handed it over to the officer. The officer then asked Hammond if he was in possession of crack, and Hammond hesitated before responding in the affirmative.

Upon hearing this, the officer told Hammond that the two of them were “going to talk about this, but I have to detain you right now,” and he attempted to place Hammond in handcuffs. As this transpired, Hammond reached into his pocket and discarded a pill bottle containing what was later shown to be eight pieces of crack cocaine before grabbing for the officer's gun and struggling. The scuffle between the officer and Hammond escalated and continued until backup arrived, when Hammond was finally subdued and fully handcuffed.

Hammond was thereafter indicted on one count each of obstruction of an officer,¹ removal of a weapon,² possession of cocaine,³ improperly riding a bicycle,⁴ improperly equipping a bicycle,⁵ and abandonment of a controlled substance.⁶ He then filed a motion to suppress “all evidence resulting from the police officers' search and seizure....” The trial court granted Hammond's motion, basing its decision on Hammond's claim that he was “in custody” when questioned as to whether he possessed illegal drugs but that he had not been read his Miranda rights. Accordingly, the trial court determined that “any admissions made should be suppressed” and that evidence obtained as a result of the statements should be suppressed as “fruits of the poisonous tree.” ⁷ The trial judge more fully explained his decision at the motion-to-suppress hearing, opining that Hammond was subjected to a lawful tier-two Terry stop with regard to the violations related to his bicycle. However, because the arresting officer testified that Hammond was not free to leave after being approached, the trial court held that the officer had “no right to ask him any questions unless he's advised him of his Miranda warnings....” This appeal by the State follows.

At the outset, we note that “on a motion to suppress, the State has the burden of proving that a search was lawful.” ⁸ And on appellate review of a trial court's order concerning a motion to suppress evidence, “while we review de novo the trial court's application of the law to undisputed facts, we must accept the trial court's ruling on disputed facts unless it is clearly erroneous.” ⁹ With these guiding principles in mind, we turn now to the State's argument.

The State's sole argument on appeal is that the trial court improperly granted Hammond's motion to suppress by determining that Hammond was in custody without the benefit of Miranda warnings, rendering inadmissible statements he made and evidence found as a result of those statements. More specifically, the State contends that “the fact that Hammond had become the focus of an investigation during a roadside traffic stop, even to the point where the officer had probable cause for an arrest, did not constitute a formal arrest requiring Miranda warnings before questioning.” We agree.

To begin with, we note that there are three tiers of Terry-type police-citizen encounters, which encompass

(1) communication between police and citizens involving no coercion or detention ..., (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, an officer “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.” ¹¹ In a second-tier encounter, even without probable cause, an officer may stop and detain a person briefly “when the officer has a particularized and objective basis for suspecting the person[ ] [is] involved in criminal activity.” ¹² But “the officer must possess more than a subjective, unparticularized suspicion or hunch,” and his or her “action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” ¹³ Additionally, in a second-tier encounter, “the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing.” ¹⁴ Finally, as noted supra, a third-tier encounter is an actual or de facto arrest, which must be supported by probable cause.¹⁵

In the case sub judice, the trial court determined that Hammond was subjected to a lawful tier-two encounter with the officer but that Hammond “had no right to leave” and Miranda warnings were, therefore, required before the officer could question Hammond. We disagree with the latter half of the trial court's holding and note that “[r]esolving whether a suspect was in custody for Miranda purposes and whether a suspect was legally seized during a Terry stop require somewhat different analyses.” ¹⁶

In a Terry-type investigative detention, “the suspect is detained, but Miranda is not always triggered” ¹⁷ because “the safeguards prescribed by Miranda become applicable only after a detainee's freedom of action is curtailed to a degree associated with formal arrest.” ¹⁸ Indeed, “although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee's exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights.” ¹⁹ When an officer makes an ordinary traffic stop, he or she may “temporarily detain anyone who tries to leave before the preliminary investigation is completed” and “[s]uch inquiries and detentions do not trigger the requirements of Miranda, unless the questioning is aimed at obtaining information to establish a suspect's guilt.” ²⁰

Instead, to determine whether an individual was “in custody” for purposes of Miranda, the test is “whether a reasonable person in the detainee's position would have thought the detention would not be temporary.” ²¹ Under this test, a person is in custody for purposes of Miranda only if “a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.” ²² And a “ reasonable person” is one who is “neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.” ²³ Additionally, “the subjective opinion of the officer concerning whether the suspect's detention constituted a custodial arrest is not controlling.” ²⁴

Here, as stated previously, we agree with the trial court that Hammond was subjected to a tier-two Terry-type investigative detention, but we disagree that Hammond was “in custody” for purposes of Miranda. We will address each analysis in turn.

First, as to Hammond's detention, the officer observed Hammond traveling in the wrong direction on a one-way street while riding a bicycle without the required headlight, providing probable cause to initiate a stop. ²⁵ After briefly questioning Hammond about the bicycle infractions and inquiring as to his identification, the officer checked to make sure Hammond was not the subject of any outstanding warrants. Immediately thereafter, the officer began to ask Hammond whether he possessed drug paraphernalia, as further detailed supra, because Hammond “was acting very nervous” and “seem[ed] high.” Additionally, the officer stopped Hammond late at night in an area known for high drug activity, and he observed that Hammond acted “above average nervous” and fidgeted with an object in his pocket.

Given the foregoing...