State v. Walker

• Citation: 295 Ga. 888,764 S.E.2d 804
• Decision Date: 20 October 2014
• Docket Number: No. S13G1793.,S13G1793.
• Court: Supreme Court of Georgia
• Parties: The STATE v. WALKER.

295 Ga. 888

764 S.E.2d 804

The STATE

v.WALKER.

No. S13G1793.

Supreme Court of Georgia.

Oct. 20, 2014.

George H. Hartwig III, Dist. Atty., Daniel P. Bibler, Asst. Dist. Atty., for appellant.

Angela M. Coggins, Perry, Gerald R. Weber, Jr., for appellee.

Opinion

HINES, Presiding Justice.

This Court granted a writ of certiorari to the Court of Appeals in Walker v. State, 323 Ga.App. 558, 747 S.E.2d 51 (2013), to determine if that Court erred in reversing the trial court's denial of the motion to suppress evidence of cocaine found as a result of an encounter between a police officer and Ernest Walker, Sr. Finding that the Court of Appeals erred, we reverse that Court's judgment.

According to the facts as found by the trial court after the hearing on Walker's motion to suppress,¹ Officer David Adriance, of the Warner Robins Police Department, was patrolling an area near an elementary school at 12:12 a.m. on February 23, 2011; he had been advised to be on the lookout for a black male in dark clothing who was a suspect in the attempted theft of a motorcycle. Officer Adriance saw Walker, who was wearing a hooded blue sweatshirt and light-colored pants, on foot on the grounds of the school. Officer Adriance approached Walker, telling him to remove his hands from his pockets; rather than complying, Walker became verbally combative, yelled that he was “just trying to get home,” and “took off running through back yards, tossing stuff as he ran.” Officer Adriance gave chase and caught Walker; the items Walker discarded included crack cocaine and a pipe for smoking crack cocaine, which he sought to suppress. After a jury trial,² Walker was convicted of possession of cocaine with intent to distribute and obstruction of a law enforcement officer; these convictions were reversed by the Court of Appeals. Further facts may be found in the opinion of the Court of Appeals. Id.

As the Court of Appeals characterized the case on appeal,

Walker contends that he was subjected to an investigatory detention when an officer stopped him as he stepped off the premises of an elementary school and instructed him to remove his hands from his pockets. Walker contends that the officer lacked a particularized and objective basis for suspecting that he was involved in criminal activity, as required for such a stop, and that, in the absence of any reasonable, articulable suspicion of criminal activity, he was entitled to refuse to comply with the officer's demands and to end the encounter by running away from the officer. Because the officer lacked a reasonable, articulable suspicion of criminal activity, Walker contends, the detention violated his Fourth Amendment right to be free from unlawful searches and seizures, and the trial court erred in denying his motion to suppress a quantity of cocaine and other drug-related items that were obtained as a result of the illegal detention.

Id. at 558(1), 747 S.E.2d 51.

The Court of Appeals determined that Officer Adriance lacked articulable suspicion, and in doing so, set forth the following formulation:

Fourth Amendment jurisprudence recognizes 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 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 ... stop of the citizen [under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ]. 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.... To make a second-tier stop, ... a police officer must possess more than a subjective, unparticularized suspicion or hunch. The officer's action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant intrusion. Further, the court must be able to determine that the detention was neither arbitrary nor harassing.... Moreover, in determining whether the stop was justified by reasonable suspicion, the totality of the circumstances—the whole picture—must be taken into account.

Id. at 559(1), 747 S.E.2d 51 (Citation and punctuation omitted.) The Court of Appeals then concluded that the facts of the encounter showed that

[w]hat the officer may have intended as a first-tier encounter ... almost immediately escalated into a second-tier stop when the officer commanded Walker to remove his hands from his pockets; as such, the detention had to be supported by articulable suspicion. [Cit.]

Id. at 561, 747 S.E.2d 51.

In doing so, the Court of Appeals went astray; as it properly recognized in its citation to Terry, it is a seizure of a person that must be supported by articulable suspicion. And, it is clear from the facts of this case, that Walker was not seized within the meaning of the Fourth Amendment by Officer Adriance's direction that he remove his hands from his pockets; a command from a law enforcement officer, alone, is not sufficient to constitute a seizure for purposes of the Fourth Amendment. Rather, under the Fourth Amendment, a seizure occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry, supra at 19, n. 16, 88 S.Ct. 1868. And, it is unquestioned that Officer Adriance did not apply any physical force to restrain Walker's liberty until after Walker discarded the items he sought to suppress; he did not touch Walker or display a weapon, nor were other officers there such as might constitute a “threatening presence.” See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Accordingly, whether Walker was seized before he abandoned the items depends upon whether he had been seized through a show of authority on Officer Adriance's part; if he was not thus seized, his abandonment of the property was not the fruit of a seizure, and the motion to suppress the evidence was properly denied. California v. Hodari D., 499 U.S. 621, 629, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). See also Brown v. State, 239 Ga.App. 674, 676(1), 522 S.E.2d 41 (1999) (“[D]efendant was not ‘seized’ when the cocaine was abandoned. He had not been touched by the officers; he did not submit to the officers' ‘show of authority’—the flashing blue lights. Simply put, defendant was in a state of flight when the cocaine was discarded and it cannot be said that it was the fruit of an illegal arrest.”)

Walker contends that he was seized when Officer Adriance told him to remove his hands from his pockets, as this was an assertion of the officer's authority. However, this ignores clear precedent from the United States Supreme Court that, absent physical force, for an encounter with a police officer to be considered a seizure under the Fourth Amendment, there must be “submission to the assertion of authority.” Hodari D., supra at 626, 111 S.Ct. 1547 (Emphasis in original.) See also Brendlin v. California, 551 U.S. 249, 254(II)(A), 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) (“A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned.”) (Emphasis supplied.) And, instead of submitting to Officer Adriance's direction and removing his hands from his pockets, Walker ran. Although Walker describes the command to take his hands out of his pockets as a “second-tier” encounter, it was not; without his submission to the command, it was at most an attempted seizure, and “[a]ttempted seizures of a person are beyond the scope of the Fourth Amendment. [Cit.]”

County of Sacramento v. Lewis, 523 U.S. 833, 845, n. 7, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998).³

Citing Mendenhall, supra, Walker nonetheless argues that he was seized when Officer Adriance issued the command to remove his hands from his pockets, because “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,” id. at 554, 100 S.Ct. 1870, and a reasonable person would so regard Officer Adriance's direction. However, as Hodari D., supra, made clear, the existence of such a reasonable belief would not end the matter. Rather, Hodari D. specifically notes that Mendenhall “says that a person has been seized ‘only if,’ not that he has been seized ‘whenever’; it states a necessary, but not a sufficient, condition for seizure—or, more precisely, for seizure effected through a ‘show of authority.’ ” Hodari D., supra at 628, 111 S.Ct. 1547. And, as Hodari D. also made clear, without submission to that show of authority, there was not a seizure. Walker did not submit to Officer Adriance's command, and thus he was not seized until Officer Adriancephysically seized him. That Officer Adriance pursued Walker when he ran does not alter matters as “ being chased is not tantamount to being ‘seized’ in violation of the Fourth Amendment. [Cits.]” Smith v. State, 217 Ga.App. 680(2), 458 S.E.2d 704 (1995) (Emphasis in original.) See also Sims v. State, 258 Ga.App. 662, 663, 574 S.E.2d 879 (2002) (“[B]ecause Sims threw away the bag containing the cocaine when Officer Jones was chasing him, the trial court was authorized to find that the cocaine was not seized as the...