Thomas v. State
| Decision Date | 19 November 2009 |
| Docket Number | No. A09A2116.,A09A2116. |
| Citation | 301 Ga. App. 198,687 S.E.2d 203 |
| Parties | THOMAS v. The STATE. |
| Court | Georgia Court of Appeals |
Clark C. Adams Jr., for Appellant.
Plez H. Hardin, Dist. Atty., Daniel P. Bibler, Asst. Dist. Atty., for Appellee.
Demetrius Thomas appeals from his convictions of possession of cocaine with intent to distribute,1 possession of marijuana with intent to distribute,2 and felony obstruction of an officer,3 asserting that the trial court erred in: (1) denying his motion to suppress certain evidence; and (2) excluding certain impeachment evidence that Thomas sought to use against the arresting officer. Finding that the evidence which Thomas sought to suppress was obtained through an illegal police detention and search of Thomas, we reverse.
On a motion to suppress, the State bears the burden of proving that the police detention of the defendant was legal. Teal v. State.4 "When reviewing a ruling on a motion to suppress, where, as here, the evidence is uncontroverted and there exists no question regarding witness credibility, we review de novo the trial court's application of the law to the facts presented." State v. Torres.5 In doing so, "we consider all the evidence of record, including evidence introduced at trial." (Punctuation omitted.) Lindsey v. State.6
The only evidence relevant to the issue of suppression was the testimony of the arresting officer, offered at both the motion to suppress hearing and at trial. According to the officer, on the afternoon of July 19, 2008, he was standing outside of the building that houses the Lumpkin Police Department when he observed Thomas standing in a parking lot located approximately one and one-half blocks away. The parking lot, which was shared by a nightclub and a restaurant, was known to police as an area where illegal drug transactions and illegal drug use frequently occurred. Because the proprietor of the nightclub and restaurant had asked police to help control loitering in the area, the officer got into his patrol car and drove toward the parking lot. As he approached the parking lot, the officer saw Thomas standing next to a parked vehicle and observed him reach into the passenger side of the vehicle and then walk away. The vehicle then left the parking lot and the officer drove into the same lot. As the officer did so, Thomas walked to the steps of the restaurant, picked up a water bottle, and began walking toward the nightclub.
Believing that the interaction between Thomas and the vehicle was a drug transaction, the officer exited his patrol car and called to Thomas, saying, "Hey, come over here and let me talk to you." The officer testified that when Thomas failed to respond he did not call out a second time, but instead "ran over and got in front of [Thomas]" and said The officer explained that when Thomas refused to accompany him to his patrol car, Thomas removed a bag from his pocket and the officer, by his own description, "picked [Thomas] up and I slammed him to the ground" and told him
The officer continued his efforts to restrain Thomas by getting "on his back" and "slamming him to the ground" at least two more times. During this time, Thomas threw the bag that he had removed from his pocket away from him, and toward the nearby buildings.
After putting handcuffs on Thomas and placing him in the patrol car, the officer retrieved the bag thrown by Thomas. The officer then transported both Thomas and the bag back to the police station, despite the fact that he had not yet looked at the bag to determine its contents. Upon opening the bag at the police station, the officer determined that it contained drugs, and he formally arrested Thomas and read him his Miranda rights. At trial, the State showed that the bag contained 14 smaller bags of marijuana and 14 smaller bags of powdered cocaine, packaged as though for individual sale, and a pill bottle filled with crack cocaine. Thomas was subsequently indicted on a single count each of possession of cocaine with intent to distribute, possession of marijuana with intent to distribute, bribery,7 and felony obstruction of an officer.
Prior to trial, Thomas filed a motion to suppress the bag he had thrown from his pocket and its contents, arguing that the seizure of the same resulted from an illegal police detention. Following a hearing on that motion, the trial court denied it from the bench, and the case proceeded to trial. At trial, Thomas sought to impeach the arresting officer with evidence that he had been placed on 24 months probation with the Georgia Peace Officer Standards and Training (P.O.S.T.) Council for departmental rule violations and conduct unbecoming an officer. The trial court refused to allow the introduction of that evidence, because the officer did not testify to his status as a P.O.S.T.-certified officer.
A jury found Thomas guilty of all but the bribery charge, the trial court entered a judgment of conviction on that verdict, and this appeal followed.
1. There are three tiers of police-citizen encounters, and to analyze a defendant's claim that he was the victim of an illegal police detention, a court must first categorize the police-citizen encounter at issue. See State v. Harris.8 First-tier encounters are consensual communications between police and citizens and involve no coercion or detention; second-tier encounters, which must be supported by reasonable suspicion, are brief stops done for the purpose of investigating suspected criminal activity; and third-tier encounters are actual or de facto arrests and, accordingly, must be supported by probable cause. See Whitmore v. State.9
In denying Thomas's motion to suppress, the trial court found that "the officer had suspicion enough to inquire and perform a first-tier detention [sic] and the actions of the defendant, when he brought the drugs out, justified the remainder of the search and seizure." This holding, however, cannot be supported by either the evidence or the relevant law.
In a first-tier encounter, 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. There is no threshold requirement and indeed the individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint and is not encompassed by the Fourth Amendment. So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.
(Punctuation omitted.) Black v. State.10
Thus, the initial encounter between Thomas and the officer could be viewed as a consensual, first-tier encounter only if a reasonable person in Thomas's position would have felt "free to decline the officer's request [to speak with Thomas] or otherwise terminate the encounter." (Punctuation omitted.) Whitmore, supra, 289 Ga.App. at 108, 657 S.E.2d 1. "Indeed, a citizen's ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter" (Harris, supra, 261 Ga.App. at 122, 581 S.E.2d 736), and "[e]ven running from police during a first-tier encounter is wholly permissible." Black, supra, 281 Ga.App. at 44(1), 635 S.E.2d 568.
Here, the unequivocal testimony of the arresting officer shows that, from the time he entered the parking lot in his patrol car, Thomas was not free to leave that parking lot until he had allowed the officer to question him. When Thomas attempted to walk way from the officer, the officer responded by physically blocking Thomas's path, demanding that Thomas submit to a pat-down, and physically restraining Thomas. Furthermore, the officer acknowledged at trial that Thomas had been detained and was not free to leave the scene until the officer had completed his investigation, which would as a matter of course, include frisking Thomas for weapons. By the officer's own admission, therefore, his stop of Thomas "was a second-tier, investigative detention that required the officer to have a particularized and objective basis for suspecting that [Thomas] was or was about to be involved in criminal activity." Walker v. State.11 See also State v. Banks.12
To stop a citizen, the 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 that intrusion, and the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing.
(Punctuation omitted.) Black, supra, 281 Ga. App. at 43(1), 635 S.E.2d 568. "This demand for specificity in the information upon which police action is predicated is the central teaching of the Supreme Court's Fourth Amendment jurisprudence." (Punctuation omitted.) Barnes v. State.13
The officer testified that his detention of Thomas was based on the fact that he had seen Thomas standing in a parking lot known for drug activity, had observed him reaching into the passenger side of a vehicle located in that parking lot, and had seen the vehicle driving away. According to the officer, this activity was indicative of a drug transaction. The officer admitted, however, that he saw no drugs and that he did not see Thomas engaging in any illegal activity....
To continue reading
Request your trial
-
Hernandez-Espino v. State, A13A1434.
...[direction to give him the drugs] or otherwise terminate the encounter,” as required for a first-tier encounter. Thomas v. State, 301 Ga.App. 198, 200(1), 687 S.E.2d 203 (2009) (citation and punctuation omitted). Instead, the trial court found that the encounter remained first-tier because ......
-
Walker v. State
...greater and, therefore, the scope of the exclusion broader.) (punctuation and footnotes omitted). 3. See also Thomas v. State, 301 Ga.App. 198, 200–201(1), 687 S.E.2d 203 (2009) (An encounter is deemed first tier if a reasonable person in the citizen's position would feel “free to decline t......
- State v. Hammond
-
Prado v. State
...14, 684 S.E.2d 88 (2009). 14 (Punctuation and footnote omitted.) Id. 15 Id. at 16, 684 S.E.2d 88. See also Thomas v. State, 301 Ga.App. 198, 201-202(1), 687 S.E.2d 203 (2009) (stop and frisk of defendant was unauthorized where officer had received no complaints of drug activity in area). 16......
-
Trial Practice and Procedure - Kate S. Cook, Alan J. Hamilton, Brandon L. Peak, John C. Morrison Iii, and Mary K. Weeks
...border between simple and professional negligence, is that a plaintiff, presumably believing his or her case 209. Id. at 186-87, 687 S.E.2d at 203. 210. Chandler v. Opensided MRI of Atlanta, LLC, 299 Ga. App. 145, 682 S.E.2d 165 (2009). 211. 299 Ga. App. 145, 682 S.E.2d 165 (2009). 212. O.C......
-
Evidence - John E. Hall, Jr. and W. Scott Henwood
...In Condra v. Atlanta Orthopaedic Group, P.C.,31 the 21. O.C.G.A § 24-9-67.1(c)(1) (emphasis added). 22. Craigo, 301 Ga. App. at 186-87, 687 S.E.2d at 203. 23. See O.C.G.A § 24-9-67.1(c)(1). 24. See Mason v. Home Depot U.S.A., Inc., 283 Ga. 271, 658 S.E.2d 603 (2008) (finding unconstitutiona......