*1 were entitled ad, defendants sentence in control over the “stolen” summary judgment.11 Ellington, J., concur. Andrews, P. affirmed. Hasty, Hasty, Jr., Jr., P.C., G. G. William Law William Offices of Pope, appellants. A. Jonathan Marger, appellees. Edwin v. THE STATE.
A99A2046. PETERS (531 SE2d Judge. Barnes, possessing appeals cocaine from his conviction (1) argues appeal, the intent court erred it. In this to distribute (2) by denying suppress; trial his motion to insufficient (3) supports conviction; evidence the trial court erred when jury notifying recharged the him his For reasons without counsel. follow, we reverse. hearing, presented during suppress The evidence the motion County leaving trial,* two DeKalb and at showed that armed uniformed prevented getting into his car and apartment complex “observed an defendant, because in a hurried fashion.” The officers come out from which Peters exited was known testified heavy officers, ner When Peters saw sales. hurry complex out of the his car. After Officer West vous and continued toward asking stopping Peters and him for pants
reached into and removed a “three four-inch cookie- marijuana. bags sized chunk” of crack cocaine two error, 1. In his first enumeration of Peters asserts the trial court granted suppress motion should because the officers suspicion necessary not have the articulable to detain him. Supreme sculpt [United States] holdings out, Court at least (1) theoretically, police-citizen three tiers of encounters: involving communication between and citizens compass coercion or detention therefore 50-51; Luckey, Sigmon, supra at 433. ruling reviewing suppress, trial a trial court’s a motion to consider When on testimony hearing. during to the submitted the motion to addition Sanders v. 431-432 (2) Amendment, brief that must be Fourth seizures ported suspicion, full-scale arrests reasonable supported by probable that must be cause. McAdoo
23, *2 police may approach [tier], citizens,
In the first officers ask freely question the citizen without in basis or belief the citizen involved detain criminal long the the or as as officers do citizen may impression create the second tier occurs when the officer that the citizen The leave. a conducts brief investigative Terry stop level, of the citizen. In this probable stop per- officer, sons and detain them cause, even in the absence of briefly, particu- when the officer has a objective suspecting persons larized and basis for the are activity. involved in criminal App. McClain 471) (1997). 714, 716 SE2d
In order to
Peters’
of error,
address
first enumeration
must
first determine whether the initial contact between the officers and
categorized
Peters should be
as a first- or a second-tier-encounter.
verbally
stop
pre-
Because the officers
commanded
to
Peters
entering
automobile,
vented him from
find
it
that was
sec-
reasonable,
ond-tier encounter for which a
articulable
activity
required.
App.
Blair,
criminal
See State v.
239 Ga.
(521
requisite suspicion.
case,
In this
the officers lacked the
high drug
sight
did not flee from sale
area
the
of the officers.
Compare Illinois Wardlow,
Since articul- engaged able activity, that he was in about trial court erred when denied his motion stop evidence seized as a result of this unlawful seizure person. remaining in enumer-
2. Based on Division are moot. ations of error Eldridge, J, Blackburn, P. concur reversed.
fully specially. concurring Judge, specially.
Eldridge, only fully majority opinion make and write I concur specific certain, facts of this case. clear regarding clear. It is uncontro- The record
1. verbally ordered Peters and Waltower verted Officers West approached obeyed command, and, their after solely questioning. The officers did so “hurrying” away location. Peters from a known officers sale stopped as been “nervous” after hearing: following suppression first shown [Officer Waltower:] the defend- We observed ant, come out in a hurried fashion. yellow basically coming vehi- in our direction towards us, cle in a hurried fashion. When saw us, he came almost to a com- . . When he saw nervous. plete stop *3 looking began looking if around as he was stopped by myself escape . He an Officer West. . avenue. . . was stopped com- . . He was with a verbal obey [He] [d]id . . verbal commands to mand. stop. . . . . parking lot . . . . He was in the near his vehicle. . doing anything suspicious? [Q:] else that was Was stopped, [Waltower:] sir, he became ner- When was vous. stopped?
[Q:] he When was
[Waltower:] Yes, sir.
and also from the trial: Waltower:] [W]e
[Officer later identi- observed black coming up Peters, fied as was from one the lower going fashion, in a towards a levels in the yellow hurried Regal, stopped . . . Buick I believe it was. We Mr. stopped him. Peters. He seemed nervous when questioned him to what I believe Officer West doing. (Emphasis supplied.) . . . Building [W]e
[Officer West:] walked drugs is Mr. Peters run from a where walking heavily hastily towards his car. sold. breezeway, attempted running I . . . on him Based identify him. him That Peters “nervous” or looked like wanted “escape cannot, avenue” when he was after the ply suspicion reasonable' articulable do the officers had — Hurrying done. to one’s even in known automobile — people’s not, alone, sale location sufficient to erode constitu- right against government e.g., See, intrusion. tional unreasonable 790) (1998). Unsup- Hughes State, v. ported by reasonable articulable that Peters was engaging or about to
unconstitutional detention. if
2. Even been able to articulate a reasonable justify Terry stop subsequent Peters, second-tier Terry Ohio, search was bad. (1968). 392 U. v. S. 20 LE2d exigent permit There were no circumstances which would Terry protective pat-down, officers to abandon a reach the com- into pliant suspect’s pants, to see what is in it. supra, emphasis upon proce- Ohio, the court’s pro- two-step dures followed the officer indicates ordinarily pat
cess must be followed: The officer must first, then intrude beneath the surface if upon he comes which feels like Clark v. “More procedures approved invasive reasonable basis for have been where an officer has had a suspect that a was armed or was oth- personal safety. Hayes erwise a threat to his 321) (1991).” implicit But in this is that the suspect officer concluded that otherwise personal safety threat to his and can articulate a basis for his conclu- Terry sion so that a would not be unreasonable Hayes under officers never dangerous. circumstances. Here, 206-207. testified concluded Peters was armed and *4 (who search) Officer West conducted the testified that he “suspicion” concealing felt to be right So, behind his hand. West turned Peters around and moved the
offending compliant nonthreatening through- hand. Peters was Clearly, out these maneuvers. ing hand, after West moved Peters’ noth- being was then concealed. “bulge”:
However, after moved hand, West West saw hand, “His hand over his When I waistline. removed the that is when bulge I noticed the in his waistline.” West testified that he had no “bulge” any idea what the that “didn’t draw conclusions.” wrapped “bulge,” paper a three- itself, towel The to four-inch chunk of less than an ounce of testified that they was white containing baggies small crack cocaine and two marijuana Waltower in total. Neither West nor they thought “bulge” did looked like a Nor specifically, suspect him, to be have reason to know Peters or explanation patting provided no for armed. Officer West pulled the waistline, his “removed hand Peters before pants bulge,” for it. Officer West and “reached” back[,] “my safety litany Peters for that he checked have recited the weapon,” but, time, he that he also stated check for a at same provided concealing”; no else was West checked him “for whatever evidence pat-down dispensed Terry demonstrate might safety jeopardy or if he not imme was in because West’s diately, prior pat-down, protective to a white pants.2 he discovered when he looked Peters’ safety importance, paramount must aegis an officer While officer of performed provide some evidence to show that an act under my safety” purpose for and either follows “for such guidelines appropriate has for a . constitutional departure basis . . had that the “officer therefrom. Absent [Peters] oth- for that reasonable basis personal safety,” State v. erwise a threat so as to avoid the constitutional Terry,
requirements the search Peters was unconstitutional. Presiding Judge joins in
I am authorized to state that Blackburn this concurrence. appellant. Kleinrock,
Gerard B. Murder-Ashley, Morgan, Attorney, Maria J. Tom District Attorneys, Clegg, appellee. Thomas S. District Assistant 2 Clearly, Terry protective pat-down had been conducted and the officer had felt if a immediately object identity apparent, would have whose contour or mass made its there beyond privacy been no authorized officer’s search invasion of Peters’ object weapons. “plain exception, this feel” the warrantless seizure of the in Peters’ Under justified by practical plain- clothing inhere in the would be same considerations here, course, concept application has no since view context. Of such object performed idea was before he and the officer testified that he it. Takes v. Ga. (1999). reached into Peters’ waistband 534) retrieve (1999); Dills,