State v. SappState v. Sapp
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- Before:
- Birdsong
This is аn appeal by the State of the trial court’s order granting appellee/defendant Lonnie L. Sapp’s motion to suppress a crack pipe and urinalysis results.
The police received a report from an unknown tipster who they assumed was a concerned citizen that there were “some guys” selling drugs in the Mud Puddle, a known drug area. When the police arrived at the scene, appellee was observed acting “very suspicious.” He was “standing around with a bunch of other guys talking.” When the police pulled up, аppellee got nervous and “acted like he started to run,” but “he turned around and came back.” Appellee fit the description of “some of the guys” reported by the tipster as selling drugs at that location. However, the tipster merely identified the people involved as “just young black males.” No other description was given; the tipster did not identify the people either by physical char
The record also сontains the affidavit of the assistant district attorney purporting to establish the facts determined at an unreported suppression motion hearing. The contents of this affidavit contain certain information that is contradictory to the facts testified to by the arrеsting officer at the committal hearing, and no reasonable explanation is offered for this contradiction in fact. For example, the affidavit asserts that the “concerned citizen gave clothing descriptions” of the persons selling drugs at the Mud Puddle location. The arresting officer testified at the committal hearing that he put appel-lee under arrest and “at that time” began talking to appellee who made statements regarding his drug use; however, the affidavit implies that this conversation occurred before the arrest. (Whether a Miranda warning and waiver also was required depends on whether appellee was interrogated after he was in police custody.) The trial court resolved some of the conflict in the evidence by finding as fact that “the anonymous tipster did not identify the [appellee] in any way nor did he ... at any time specifically identify the [appellee] as being involved in any illegal activity.” The trial court also found that, although appellee initially attempted to leave the scene on the arrival of the police, he “returned” and was asked certain questions and then patted down “for any kind of weapons and any kind of contraband.” Held:
1. The findings of fact of the trial court are not clearly erroneous;
2. The cases cited by the State are not controlling. In particular, we find the facts of this cаse substantially different from those of In the Interest of J. L. G., 209 Ga. App. 565 (434 SE2d 126) (unidentified caller reported dress of one suspect and that other was on bicycle and possibly possessing small handgun; defendant broke and ran from police and was tackled); State v. Ball, 207 Ga. App. 729, 733 (429 SE2d 258) (after an anonymous tip and prior to making the investigative stop, the arresting оfficer recognized appellant and his car as having been involved in a recent drug investigation); Harris v. State, 205 Ga. App. 813 (423 SE2d 723) (defendant voluntarily consented to removal of tissue from his pocket detected during a Terry stop and frisk); State v. Holton, 205 Ga. App. 434 (422 SE2d 295) (anonymous tipster predicted defendant’s future behavior in detail); Perry v. State, 204 Ga. App. 643 (419 SE2d 922); State v. Smalls, suрra (some in group ran and appellant attempted to leave scene slowly but did not voluntarily return; brief pat-down for safety disclosed money which defendant then consented to let the police remove from his pocket; search and seizure nоt illegal since it was with effective consent).
The tipster gave only a general description of the suspected drug sellers; he identified them as young black males. The tipster gave no individual description of appellee whatever; he made no prediction about future behavior of appellee or of the group by which reliability could be tested. See generally Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301); compare Johnson v. State, 197 Ga. App. 538 (398 SE2d 826). Under the circumstances of this case, we find controlling Moreland v. State, 204 Ga. App. 218 (418 SE2d 788); Swanson v. State, 201 Ga. App. 896 (412 SE2d 630); and Johnson v. State, 197 Ga. App. 538 (398 SE2d 826). The initial stop of appellee was not valid because it was unreasonаble under the circumstances; it does not qualify as a legitimate investigative stop, pursuant to Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889), not being grounded on a legitimate articulable suspicion. Moreland, supra; see Swanson, supra; Johnson, supra.
Further, the arresting officer testified and the trial court found,
3. “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry, supra at 16. As the initial stop of appellee was beyond the parameters authorized by Terry, supra, it constituted an illegal seizure of the person. Evidence may not be introduced if it was discovered by means of an unlawful search and seizure. See, e.g., Terry, supra at 29; compare State v. Stringer, 258 Ga. 605 (372 SE2d 426) (exclusionary rule applies where causal connection between illegal arrest and subsequеnt custodial statement). However, under certain circumstances, the effect of an unlawful arrest, seizure or search can be attenuated. See generally Stringer, supra at 607 and cases cited therein; King v. State, 211 Ga. App. 12, 13-14 (1) (438 SE2d 93); Ruffin v. State, 201 Ga. App. 792 (2) (412 SE2d 850) (police’s learning of outstanding arrest warrant during illegal Terry stop attenuated the temporаry illegal detention of defendant arising from an illegal Terry stop; police could make a valid arrest, based on the warrant, and search defendant at the jail incident to his lawful arrest pursuant to the warrant); see Donner v. State, 191 Ga. App. 58 (380 SE2d 732).
We find that no attenuating circumstances exist as to the pat-down and seizure of the crack pipe; its seizure clearly was causally connected to the illegal investigative stop. The trial court did .not err in suppressing this evidence. However, attenuating factors may exist as to the subsequent searсh of appellee by means of urinalysis testing. Whether such attenuating circumstances exist depends upon certain facts which have not, as yet, been addressed by the trial court. Appel-lee was in a probation status; one of the special conditions of that probation was, inter alia: “Probationer shall submit to a search of his person . . . and/or effects, as these terms of the Fourth Amendment to the United States Constitution are defined by the Courts, any time of the day or night with or without a search warrant, whenever requеsted to do so by . . . any city, county or state law enforcement officer.”
By accepting this special condition of probation, and to the extent a search and seizure was not otherwise tainted without subse
In this instance, it appears that the police did not become aware that appellee was on probation until after they had initiated the unauthorized Terry stop. Moreovеr, the evidence is conflicting and has not been resolved whether appellee stated he was on probation before or after he was placed under arrest. If the police learned of appellee’s probation status and subjeсted him to urinalysis because of a causal connection between the unauthorized Terry stop and his subsequent statement admitting his probation status, and no attenuating circumstances existed, the resulting search by means of urinalysis testing would be rendered inadmissible. See Stringer, supra.
Basеd on the state of the record, we cannot determine whether facts exist which would attenuate the effect of the unauthorized
Terry
stop. Accordingly, we remand this case to the trial court with direction to ascertain whether the causal connection above-addressed exists, and, if so, whether any attenuating circumstances exist, which would negate the effect of the unauthorized
Terry
stop as to the subsequent urinalysis test of appellee. Among those matters to be considered are: Was appellee’s statement regarding admitting his probation status made before or after his arrest? Was the statement spontaneous or was it obtained during the police’s questioning of appellee? If the statement was made after arrest and not spontaneously, was ap-pellee given a
Miranda
warning and did he waive his
Miranda
rights before the statement was obtained? Did the police learn by means independent of the
Terry
stop the existence of appellee’s probation status? If so, did they compel him to undergo urinalysis testing for legitimate reasons not сausally related to his unauthorized
Terry
Judgment affirmed in part and remanded with direction.
Blackburn, J., and Senior Appellate Judge Harold R. Banke сoncur.On Motion for Reconsideration.
Appellee Lonnie L. Sapp’s motion for reconsideration is denied. Appellee may assert the contentions made in his motion before the trial court, including his argument that the record contains no evidence of the special terms of his probation. The record contains as an exhibit the first page of final disposition, signed by the superior court judge on June 9, 1992; this document expressly refers to additional and special conditions of probation contained on page two thereof. The trial court should determine, inter alia, during the course of the hearing on remand whether the absence of page two of the final disposition from the record is due merely to clerical error or whether such evidence was never introduced. The trial court may correct any clerical or other administrative errors or omissions in the record.
Motion for reconsideration denied.