*1 аny meritorious defenses raised in the verified answer. there “While ‘great requirement concerning is no that the affidavit contain detail’ defense, Indus., see Mills v. Cohutta Hawthorne (1) (a) (348 91) (1986), factual information must supra [Cits.]” provided. Ellerbee, be at 835. In this as in concerning Ellerbee, the affidavits contained no factual information merely conclusory defense, meritorious but contained state- satisfy Thus, ments. as Exxon did not all four conditions must (b), opened be met before a default under OCGA 9-11-55 trial court was not аuthorized to exercise its discretion whether open Contracting default in this case. C. W. Matthews Co. v. supra. opening Walker, Therefore, the trial order court’s the default reversed. must be opening
2. As we have reversed the trial court’s order regarding allowing default, Thomason’s enumeration of error Exxon discovery to conduct is moot.
Judgment Eldridge, JJ, reversed. concur. Ruffin May 9, 1997 Decided Reconsideration denied June Coppedge, Coppedge, Ward, Jr., Leman & Warren N. David L. McGuffey, аppellant. for Overby, appellee.
Enoch for
A97A0856. HOLT THE STATE. Presiding Judge. McMurray, appeals “giving Defendant his conviction false name and a false date of birth to a law enforcement officer”in violation OCGA give § 16-10-25. This Code section name, makes it unlawful to a false address, or date of to “a birth law enforcement officer in the lawful discharge misleading of his official duties with the intent of identity to his . . .” birthdate. We because reverse gave defendant a false name and date of birth to an officеr who was acting within “the lawful official duties.” City Department James Hood of Norcross Police — quote was the State’s His witness. which we exten- —sively following: Shortly morning reveals the 11:00 in before 18, 1996, on June Hood observed three African-American “suspicious slowly “creeping” through in a “males” complex vehicle” an office illegal reports where there had been recent entries into apparent appear Because men ... “autos.” these “didn’t to have [during driving hours, except purpose normal business to be around upon based observa- to execute a traffic decided [vehicle’s] of] windshield.” crack in the a kind of webbed tion signaled “suspicious vehicle” to for the When complied, stop, “outside exited his car stood the driver — The two side of vehicle.” *2 — Corporal in the car. man remained African-American another approached stood “on the from the rear and car Hood passenger occupants [he] in the vehi- see bоth of the side where could if .” then the driver he would [positioned . . He “asked cle, as well as driver. [he]
place
himself]
them,
could see
his hands on the car where
he]
[so
passengers
both
their
that
could see
behind
Georgia
produced
license, but
a valid
hands.” The driver
proof
asked the driver
not show
of insurance.
Hood
could
why
complex
driving
passengers
the office
he and his
were
they
just riding
[the corporal]
around,
that
were
and the driver “told
job.”
they
just looking
[said]
for a
then
that
were
but
patrol
began preparing
Corporal Hood
car and
returned to
driving
charging
a
with
cracked
citations
driver
traffic
windshield
was
corporal
driving
proof
theAs
without
of insurance.
pas-
kept
eye
serving
citations,
an
on the driver’s two
these
“making
they
sengers
that
kind of furtive move-
and deduced
something.
they
nervous
. . .” “Due to
ments
about
[(i.e.,
activity [he]
suspicious
men
observed
three
fact and also the
traveling randomly through
during
complex
an office
normal busi-
hours)]
entering
in the
and the fact that there had been
autos
ness
past couple
days
[Corporal Hood]
lot,
went
in that same
passengers if
ID them
ahead and asked the
had
and both
Believing
every
“supposed
[him]
to
of them told
no.”
citizen
you[,]” Corporal
type
ID
Hood
some
of with
decided to ask
have
corporal
for their names and dates
birth. The
wanted
were wanted
information “so
could run them to see if
this
so
have
names on file in case we had more
and also
could
in the
autos
area.”1
running
computer
After
a
check and
the driver
identity,
suspected
defendant’s
about
given
corporal con-
him a false name and date of birth. The
reluctantly
suspicion,
this
and defendant
fronted defendant about
1 Corporal
police
pad”
Hood testified that his
file consists of “a little notebook
contain
—
—
persons
by name, race,
ing a list of
identified
and sex who the officer believes were
involved,
times,
“suspicious activity.” Corporal
Hood testified that he believеs
various
notebook,
good practice
keep
explaining
[for
a
“it is a
law enforcement officer to
you
any information, you know,
you
help
solving
case if
that] if
have
it could do
a
you
through your
flip back
and find it.”
notebook
given
name
date of
admitted that he had
the officer
false
birth.
identity, Corporal
acknowledged
As soon
his true
as defendant
police custody.
took him into
Held:
arrested defendant and
considering
first contends the trial court erred in
Defendant
proof
gave Corporal
birth,
name and date of
that he
Hood false
gleaned
during
arguing
an
that the
this information
unlaw-
police-citizen
rights
ful
under
encounter in violation of his constitutional
889).
Terry
49 activity. inal pretext, stop may investigatory a hunch or not be based on “An ‘ per justified by objective manifestation “some
but must be (Cits.)” activity. engaged be, in criminal is, or son is about (Cit.)' App. In 436, SE2d State, Ga. 438 Evans v. determining stop, in of an observed made the absence whether merely inquiry proper justified, law, was violation stop, validly whether but have made the officer could whether under the same would have done a reasonable officer
circumstances App. purpose. State, Ga. Tarwid so (363 invalid absent (1987). (1)], [v. Ga. In Brooks improperly pursuing supra, questioning acted that an officer this court held looking of one car in the window a man he observed into leaving parking shopping when the officer lot and a approached. centеr (1).” original.) Hopkins (Emphasis Id. at 97-99 423). (1) (a) (433 The basis Cor- State, 209 Ga. judice poral in the case sub far encounter with defendant Hood’s ' less substantial. object completed tenable After (i.e., driving issuing parking investigation a driver a citation for lot windshield), corporal to the directed attention with a cracked two were aroused because suspicions passengers explained He that his car. the driver’s “making kind of furtive move- these men were something. [they were] . . .” nervous about ments Hood susрicious activity “[d]ue that, to that fact also testified randomly [(i.e., driving [he] an office three men observed hours)] complex Georgia during and the Norcross, normal business days past couple autos in the fact that there had been asked the if lot, went ahead and same explained, during . ID them. . .” passen- cross-examination, that he then decided to ask gers suspects could not for their names and dates of birth because every produce papers “sup- view, and, in his citizen is identification you.” posed type ID that he to have of with stated run them to see if wanted this information “so wanted, could *4 file, in their names on case we and also so could have corporal Specifically, area.” had autos in the more gen- passengers’ explained race, names, that he to record the wanted pad” because he believes der and dates of birth in his “little notebook keep practice” “good enforcement officer to it is for law [the corporal admitted, however, that he “did not see notebook. The simply passengers] He felt that these men commit a crime.” “suspicious they] [because in an where we had enter- were ing area ago; prior, couple days knew, far there autos as. say Corporal morning.” cannot could have been We explanation questioning Hood’s defendant is sufficient to autho- finding, beyond doubt, rize the trial court’s a reasonable that defend- lawfully discharging ant an obstructed officer was official § duties in violation OCGA 16-10-25. minimally in
What must be articulated such cases to authorize finding lawfully discharging an officer “official is duties” particular providing under an OCGA 16-10-25 are facts reason for investigate impression officer’s Terry grounds for the need to criminal behavior. See supra. Corporal 392 U. S. Hood articulates no such judice. in the case sub His reveals defendant’s presence transgression was his a car cracked with a wind- traversing wrong wrong parking lot, shield which was time. Corporal circumstances, Under these we find desire to include Hood’s pad” defendant’s name and date birth his “little notebook scope police keeping outside the of his “official” duties. While a “little pad” good police practice, suspects notebook be the collection — unsupported of such information aas matter of routine — articulable of criminal cannot constitution- ally justified. holding, And in so we mindful of recent are decision Maryland _ Wilson, U. S. 137 LE2d (1997), Supreme where the United States Court held that a law may, personal safety, pas- enforcement officer sengers aas matter of order lawfully stopped judice out of vehicle. case sub is dis- tinguishable arresting from Wilson because the officer’sexit-order Terry-type Supreme justified Wilson was a command which Court ground safety, interrogation on the defendant in the case sub of officer Hood’s
judice Terry-type was a encounter alleges justified ground prevention the State or dеtection of crime. particularized Because could not articulate a rea- —
son for other than his sense that defendant “making [he was] was kind of furtive movements nervous about — something ...” admitted and because the he had no believing engaged engaging basis for in, that defendant in, was engage activity, or was about in criminal lawfully discharging questioned his “official duties” when he defend- ant. Defendant therefore did not an obstruct violation § 16-10-25, OCGA and his conviction must therefore be reversed. Judgment Eldridge, JJ, reversed. concur and concur Ruffin specially. Appellate Judge specially. Senior R. Harold Banke concurs Birdsong, Andrews, J, J, Smith, J., C. R and dissent. Judge, concurring concurring specially.
Ruffin, majority Although opinion. concur all that is said in the Officer Hood was car for the broken wind- authorized
51 insuffi- were of two “furtive” movements the shield, the questioning. further cient to authorize agree initially, said in most of I with what that while
I note
opinion,
concurring
Judge
Appellate
I believe his
Banke’s
Senior
testimony
Hood’s
disre-
Officer
to the inconsistencies
attention
appeal
applicable
gards
from a motion to
On
review.
in
the
standard
uphold-
light
to
suppress,
most favorable
the evidence is viewed
“ ‘(t)he credibility
ing
judgment
the witnesses
court’s
the trial
testimony
weight
the trier of
rest with
to
and the
be accorded
obligation
witness,
even
Anderson v.
fact,
believe
is under no
to
”
omitted.)
(Citation
testimony.’
contradictory
absence of
(475
629)
(2)
(1996);
State,
v.
264
116,
Tate
State,
118
SE2d
267 Ga.
646)
(1994). Any
in Officer
inconsistencies
53,
Ga.
SE2d
properly
testimony presented
fact which were
issues of
Hood’s
resolved
supra;
by
Anderson,
see also Gilbert v.
the trial
See
court.
(476
39) (1996).
(2)
viewing
Even
SE2d
State, 222 Ga.
testimony
light, however,
evidence still
in this
Officer Hood’s
suppress.
denying
to
the trial
erred
Holt’s motion
court
shows
majority
to
observes,
Hood was authorized
Officer
As
(e) (it
OCGA 40-8-73
the
is
due to
windshield. See
vehicle
the broken
operate
that has “a
to
a vehicle with a windshield
unlawful
by
greater
spider webbing
inches
three
or
effect
three
starburst
inches”). Assuming
deciding
had a reason-
that Officer Hood
without
question
suspicion
him to
the driver
able
sufficient to authorize
(see
relating
possible
activity
criminal
car bréak-ins
about other
(211
(reasonable
(1974)
State,
sus-
“Reasonable
of criminal
warrants
purpose
purpose
limited to the
of the
seizure for
stop.
permitted
scope
vary
The
of the intrusion
will
to some extent
particular
much,
of each case. This
facts
circumstances
investigative
temporary
however, is clear: an
detention must
necessary
longer
purpose
stop.
last no
than is
effectuate
Similarly,
investigative
employed
methods
should be the least
reasonably
verify
dispel
mеans
intrusive
available to
officer’s
(Citations
period
punctuation
in a
time.”
omit-
short
(386
emphasis supplied.)
ted;
96,
Roberts v.
921) (1989),
citing
initial of criminal the driver’s *6 prior asking questions. Accordingly, any answers detention of Holt was Holt further
unnecessary, questioning and the additional of necessary allay suspi- Holt was more intrusive than cion. Officer Hood’s although In addition, Officer Hood did observe ner- not Holt’s provided explanation vous behavior until after the the driver of their presence parking lot, in the above the shows that explanation observing continued to the “fur- believe even after According testimony, why tive” actions. never to Officer Hood’s that is he independently doing parking asked Holt what he in the was lot.
Upon determining presence parking that Holt’s lot was justified conduct, not related to criminal Officer was continuing investigation solely based on Holt’s “furtive” conduct. gestures generally “Furtive” surreptitious. are defined as those which are secret or Dictionary, p. See Webster’s Third New International (1993). Although gestures, suspi- 924 such combination other conduct, cious criminal be sufficient to сreate a reasonable activity, presence mere ain See lot insufficient. (11th Thompson, 1983);Rog- 1356, United States v. 712 F2d Cir. (3) (426 209) (1992). v. State, 654, ers 206 Ga. Finally, asking Officer Hood’s stated reasons for Holt for his purported purpose name and date of birth were not limited to the investigative stop. ques- the tions “to see if Officer Hood testified asked the wanted, and also so could have their file, names on in case we had some more autos in the area.” objectives It is unclear how either of these could lead to a determina- stop, was, tion of whether Holt the time involved in criminal activity. supra. clearly proscribes Roberts, Indeed, See the law inves- tigative stops arbitrary harassing purposes. gener- See ally (1995) Givens v. (basis must be one which from court can determine that arbitrary harassing). detention was not dispelling After afoot, criminal was companions go Officer Hood should have allowed Holt and his Although ques- about their business. the continued detention and tioning might perceived minimal, it was an unreasonable unnecessary permits. greater intrusion and Fourth Amendment special Eldridge Judge joins in this state
I am authorized to concurrence. concurring specially.
Judge Banke, Harold R. majority’s finding fully that the officer violated concur in detaining rights by him Amendment Holt’s Fourth in the justify specific facts would and articulable absence Terry 20 LE2d Ohio, 392 U. S. intrusion. between this the clear differences The dissent overlooks authority parameters controlling of articulable on the case and the suspicion, before standard which must be satisfied the constitutional legally stopping circumstances. an individual under the instant U. S. at 21. men in car of three the defendant was one black In this County center around business that had driven once parking Gwinnett a.m. the windshield was broken lot at about 10:30 Because justifiable stopping However, car. had a reason for questioning defendant, a the officer had for articulated reasons (1) “making passenger, kind of furtive move- the defendant was (2) “fidgety” car in the lot one ments nervous” the weekend.2 The officer admittеd he had been broken into over no link the defendant with that the car’s testified, description perpetrator crime and had no evidence to *7 fact,
it. In asked what indicated him when might occupants crime, the officer have committed a might “Nothing have, other to me indicated that response might The asked how he have done it.” officer’s when occupants was, “I car’s with the weekend break-in connected the didn’t them that.” connect controlling substantially require more evidence to sat-
The
cases
isfy
In
the defend-
the articulable
standard.
obviously “casing”
They
it,
a
each
in front
ants
store.
walked
They
nearby
in, and
to a
corner five or six times.
looked
walked back
eventually
interrupted
a third
this ritual to converse with
man
watching
path
him
he had
earlier. After
followed
down a
taken
thoroughly suspicious,
minutes,
over
the officer was
when
ten
stopped
again,
the
them
the men
in front of
store
he asked
Terry clearly
Terry,
The
in
names.
Williams (1982), distinguishable. drugstore case, In is likewise received morning threat around in the from a bomb 2:00 caller sounded a.m., like a male. 4:00 several white Around after more calls threat- ening drugs the if to detonate bomb remote control certain designated drop point, druggist not to a the delivered and a parking spot- out the looked window into the deserted lot and very proceeded slоwly ted a more lot, car. Its white male driver across the stopped store, or less in front the looked the window recognized stopped officer, and saw the and left. Police the car and making the driver’s voice from the calls bomb threats. many
The salient differences between instant case and Wil- liams gating the fact include officer there was immersed in investi- preventing potentially life-threatening serious, offense progress setting, stop. in night at the time of the The middle of the totally parking during lot, deserted instead of the lunch helped hour lot, in a crowded officer in Williams focus the sus- pect. The officer Williams had reason believe a white male had threatening made calls, unlike the officer the instant case who description perpetrator admitted he had no of the weekend description auto break-in. The defendant Williams matched the perpetrator suspicion by looking and created reasonable into the spying leaving, store, thе officer, and not acts so different from the Terry. defendants in In our the officer articulated no facts link- ing report Holt to the break-in. officer did not even completing single looked the cars while circle supporting around the lot. evidence the officer’saction was “fidgeted.” that Holt looked “furtive” “nervous” Given the day fact that nearly arrest Holt’s occurred in a lot on a mid-June 30 minutes car, after the officer the cause of Holt’s culpable thoughts. discomfort neеd be attributed to opinion I concur as well because the line of last makes it appear though obstruction be an additional element of the charged. crime is not an Obstruction element of OCGA 16-10-25 officer). (giving a false name to an *8 Judge, dissenting. Smith, respectfully may stop I “An dissent. authorized an auto- investigative inquiry occupants, mobile and without a conduct limited itsof probable grounds cause, if he has action; reasonable for such suspicion necessary, a founded is all that is from basis which arbitrary the court can determine that the detention was not or harassing. require policeman The Fourth Amendment does not a precise necessary probable lacks level of information for cause to shrug simply occur allow a crime to shoulders and arrest criminal to to his omitted.) (Citation escape.” State, 163 Ga. Williams v. App. 866, 868 to those Wil- this officer are similar facts observed Terry Ohio, case of liams, to in the seminal and indeed those 889) (1968).3 (88 In area of an an isolated LE2d U. S. past park over “some autos” had suffered office circling occupants days, police three car with two officer observed very lots at a slow two different “one or two times” passing empty parking spaces speed, build- close the office to rate of ings. gave inconsistent them, the driver the officer When passengers appeared explanations presence “fur- and the for tive” and “nervous.” certainly justified circumstances, the officer was
Under these “scoping occupants out” the of the vehicle were parked cars, and he in the lawful of his official duties identity or to maintain Holt “in order to determine momentarily obtaining quo more information.” Wil- the status liams, while (2). supra, to at 868 How the officer chose record he had an obtained irrelevant whether information justify ques- limited articulable sufficient tioning. respectfully reason,
For I this dissent. Judge that Chief Andrews and Presid- am authorized to state
ing Birdsong join Judge in this dissent. Decided June 25, 1997.
Reconsideration denied June appellant. Toume, E. Clark, & David for Clark Blaney, Drake, Jr, Solicitor, N. Scott A. Richard E. Gerald appellee. Thomas, Solicitors, Assistant et al. A97A1028. TOWN CENTER ASSOCIATES WORKMAN Judge Harold R. Banke. (“Town Center”) grant appeals the Center Associates
Town
crime,
committing
slowly
repeat
no
defendants
While
obvious
job.”
edly passing
appeared
“casing
to be