Walker v. State

• Decision Date: 12 July 2013
• Docket Number: No. A13A0444.,A13A0444.
• Citation: 323 Ga.App. 558,747 S.E.2d 51
• Parties: WALKER v. The STATE.
• Court: Georgia Court of Appeals

323 Ga.App. 558

747 S.E.2d 51

WALKER

v.The STATE.

No. A13A0444.

Court of Appeals of Georgia.

July 12, 2013.

Angela Marie Coggins, for Appellant.

George Herbert Hartwig III, Daryl Elliott Manns, for Appellee.

ELLINGTON, Presiding Judge.

A Houston County jury found Ernest Walker guilty beyond a reasonable doubt of possession of cocaine with intent to distribute, OCGA § 16–13–30(b); and obstruction of a law enforcement officer, OCGA § 16–10–24(a). Walker appeals, challenging the trial court's denial of his motion to suppress and its grant of the State's motion to quash subpoenas. For the following reasons, we reverse.

1. 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.

When reviewing a trial court's decision on a motion to suppress,

this [C]ourt's responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court's findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citation and punctuation omitted.) Brown v. State, 301 Ga.App. 82, 82–83, 686 S.E.2d 793 (2009). “[W]here the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, [however,] the trial court's application of the law to undisputed facts is subject to de novo appellate review.” (Punctuation and footnote omitted.) Burgess v. State, 290 Ga.App. 24, 658 S.E.2d 809 (2008).

(a) We first consider whether the officer detained Walker in violation of the Fourth Amendment. Our Fourth Amendment jurisprudencerecognizes 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.

(Citations, punctuation, and footnote omitted.) Brown v. State, 301 Ga.App. at 84–85, 686 S.E.2d 793. The exclusionary rule, which has been codified in Georgia,¹

prohibits introduction into evidence of tangible material seized during an unlawful search [or seizure], testimony concerning knowledge acquired during an unlawful search [or seizure], and both tangible and testimonial derivative evidence that is the product of the primary evidence or that is otherwise acquired as an indirect result of the unlawful search [or seizure], up to the point where the taint is dissipated by its attenuated connection with the unlawful search [or seizure]. The core rationale for extending the exclusionary rule to “fruit of the poisonous tree” is that the admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections. On this rationale, the prosecution is not to be put in a better position than it would have been in if no illegality had transpired.

(Citations and punctuation omitted.) Teal v. State, 282 Ga. 319, 323(2), 647 S.E.2d 15 (2007). See also United States v. Maryland, 479 F.2d 566, 568 (5th Cir.1973) (“If there is a nexus between lawless police conduct and the discovery of the challenged evidence which has not become so attenuated as to dissipate the taint, then the evidence should be suppressed.”) (citation and punctuation omitted).²

At the hearing on Walker's motion to suppress, the arresting officer testified that, just after midnight on February 23, 2011, he was searching the area around Pearl Stephens Elementary School in Houston County, looking for an unidentified man who had been seen trying to steal a motorcycle nearby. The suspect in the attempted theft was described as an African American male in dark clothing. The officer saw Walker, who was wearing a blue sweatshirt and very light colored pants, walking off the school property. The officer approached Walker, who put his hands into his sweatshirt pockets. The officer commanded Walker to take his hands out of his pockets.

Walker did not remove his hands from his pockets as instructed but yelled at the officer that he was just trying to get home. Walker then ran away from the officer, who gave chase. As they ran, the officer saw Walker throw a pill bottle and a paper towel to the ground. Eventually, the officer caught up with Walker in a backyard and again instructed Walker to remove his hands from his pockets. When Walker failed to comply, the officer tasered and subdued him. Other officers responded to assist, and they placed Walker in custody. Officers found a pocket knife on the ground near Walker. Along the route of the chase, the arresting officer collected a pill bottle with Walker's name and address on it that contained five pieces of what was later determined to be solid cocaine and a “crack” pipe and clothespin that were wrapped in a paper towel.

When asked at what point during his encounter he decided to arrest Walker, the officer responded, “when he takes off running from me after I attempt to stop him, because what is he doing at Pearl Stephens Elementary School at twelve minutes after midnight?” The officer testified that, once he commanded Walker to remove his hands from his pockets, Walker was not free to leave. Further, the officer testified that he did not stop Walker based on any observation that Walker's race or clothing matched those in the report describing the theft suspect, nor did he identify any other factual basis for stopping Walker, other than his presence at that time and place.

Based on the officer's testimony, the trial court concluded that, “the officer initially made contact with [Walker] and instructed him to take his hands out of his pockets.... This [was] a brief investigatory stop.” Further, the trial court concluded that, even though Walker's clothing did not match the suspect the officer was looking for, the investigatory stop was supported by a reasonable, articulable suspicion, based on the fact that Walker was walking on the grounds of an elementary school after midnight.

Under Terry v. Ohio and its progeny, the officer was entitled to approach Walker and to attempt to question him, and Walker was free to walk—or run—away and avoid such a first-tier encounter. Brown v. State, 301 Ga.App. at 84, 686 S.E.2d 793.³ What the officer may have intended as a first-tier encounter, however, 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. Id.

In this case, implicit in the officer's stated basis for detaining Walker is an assumption that Walker was trespassing on school property.⁴ The officer, however, simply lacked enough information to elevate such an assumption to a reasonable suspicion. Specifically, there is no evidence that the officer had any information that Walker was present on school property without the consent of the school, for an unlawful purpose, after receiving notice from the school that his presence was forbidden, after receiving notice from the school to depart, or without a legitimate cause or need to be there.⁵That is, the officer had no information that Walker's presence was connected with a criminal, rather than with an innocent, purpose, such as maintenance work that needed to be completed when the school was not open. Further,

[i]t is well established that mere presence in an area of suspected crime is not enough to support a reasonable, particularized suspicion that the person is committing a crime. Moreover, an officer's feeling that a person is acting in a suspicious way does not amount to a particularized and...