State v. Walker , 295 Ga. 888 ( 2014 )

In the Supreme Court of Georgia
Decided: October 20, 2014
S13G1793. THE STATE v. WALKER.
HINES, Presiding Justice.
This Court granted a writ of certiorari to the Court of Appeals in Walker
v. State, 323 Ga. App. 558 (747 SE2d 51) (2013), to determine if that Court
erred in reversing the trial court’s denial of the motion to suppress evidence of
cocaine found as a result of an encounter between a police officer and Ernest
Walker, Sr. Finding that the Court of Appeals erred, we reverse that Court’s
judgment.
According to the facts as found by the trial court after the hearing on
Walker’s motion to suppress,1 Officer David Adriance, of the Warner Robbins
Police Department, was patrolling an area near an elementary school at 12:12
a.m. on February 23, 2011; he had been advised to be on the lookout for a black
1
“On appellate review of a ruling on a motion to suppress, the trial court's findings on
disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed
facts is subject to de novo review.” Registe v. State, 292 Ga. 154, 155-156 (734 SE2d 19) (2012)
(Citations and punctuation omitted.)
male in dark clothing who was a suspect in the attempted theft of a motorcycle.
Officer Adriance saw Walker, who was wearing a hooded blue sweatshirt and
light-colored pants, on foot on the grounds of the school. Officer Adriance
approached Walker, telling him to remove his hands from his pockets; rather
than complying, Walker became verbally combative, yelled that he was “just
trying to get home,” and “took off running through back yards, tossing stuff as
he ran.” Officer Adriance gave chase and caught Walker; the items Walker
discarded included crack cocaine and a pipe for smoking crack cocaine, which
he sought to suppress. After a jury trial,2 Walker was convicted of possession
of cocaine with intent to distribute and obstruction of a law enforcement officer;
these convictions were reversed by the Court of Appeals. Further facts may be
found in the opinion of the Court of Appeals. Id.
As the Court of Appeals characterized the case on appeal,
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
2
Walker petitioned for an interlocutory appeal from the denial of his pretrial motion to
suppress under the procedures of OCGA § 5-6-34 (b), and the petition was denied by the Court of
Appeals.
2
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.
Id. at 553 (1).
The Court of Appeals determined that Officer Adriance lacked articulable
suspicion, and in doing so, set forth the following formulation:
Fourth Amendment jurisprudence recognizes 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 SCt 1868,
20 LE2d 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
3
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.
Id. at 559 (1) (Citation, punctuation, and parenthetical omitted.) The Court of
Appeals then concluded that the facts of the encounter showed that
[w]hat the officer may have intended as a first-tier encounter . . .
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.
[Cit.]
Id. at 561.
In doing so, the Court of Appeals went astray; as it properly recognized
in its citation to Terry, it is a seizure of a person that must be supported by
articulable suspicion. And, it is clear from the facts of this case, that Walker
was not seized within the meaning of the Fourth Amendment by Officer
Adriance’s direction that he remove his hands from his pockets; a command
from a law enforcement officer, alone, is not sufficient to constitute a seizure for
purposes of the Fourth Amendment. Rather, under the Fourth Amendment, a
seizure occurs “[o]nly when the officer, by means of physical force or show of
4
authority, has in some way restrained the liberty of a citizen.” Terry, supra at
19 (n. 16). And, it is unquestioned that Officer Adriance did not apply any
physical force to restrain Walker’s liberty until after Walker discarded the items
he sought to suppress; he did not touch Walker or display a weapon, nor were
other officers there such as might constitute a “threatening presence.” See
United States v. Mendenhall, 446 U.S. 544, 554 (100 SCt 1870, 64 LE2d 497)
(1980). Accordingly, whether Walker was seized before he abandoned the items
depends upon whether he had been seized through a show of authority on
Officer Adriance’s part; if he was not thus seized, his abandonment of the
property was not the fruit of a seizure, and the motion to suppress the evidence
was properly denied. California v. Hodari D., 499 U.S. 621, 629 (111 SCt
1547, 113 LE2d 690) (1991). See also Brown v. State, 239 Ga. App. 674, 676
(1) (522 SE2d 41) (1999) (“[D]efendant was not ‘seized’ when the cocaine was
abandoned. He had not been touched by the officers; he did not submit to the
officers' “show of authority”—the flashing blue lights. Simply put, defendant
was in a state of flight when the cocaine was discarded and it cannot be said that
it was the fruit of an illegal arrest.”)
Walker contends that he was seized when Officer Adriance told him to
5
remove his hands from his pockets, as this was an assertion of the officer’s
authority. However, this ignores clear precedent from the United States
Supreme Court that, absent physical force, for an encounter with a police officer
to be considered a seizure under the Fourth Amendment, there must be
“submission to the assertion of authority.” Id. at 626 (Emphasis in original.)
See also Brendlin v. California, 551 U.S. 249, 254 (II) (A) (127 SCt 2400, 168
LE2d 132) (2007) (“A police officer may make a seizure by a show of authority
and without the use of physical force, but there is no seizure without actual
submission; otherwise, there is at most an attempted seizure, so far as the Fourth
Amendment is concerned.”) (Emphasis added.) And, instead of submitting to
Officer Adriance’s direction and removing his hands from his pockets, Walker
ran. Although Walker describes the command to take his hands out of his
pockets as a “second-tier” encounter, it was not; without his submission to the
command, it was at most an attempted seizure, and “[a]ttempted seizures of a
person are beyond the scope of the Fourth Amendment. [Cit.]” County of
Sacramento v. Lewis, 523 U.S. 833, 845 (n. 7) (118 SCt 1708, 140 LE2d 1043)
6
(1998).3
Citing Mendenhall, supra, Walker nonetheless argues that he was seized
when Officer Adriance issued the command to remove his hands from his
pockets, because “a person has been ‘seized’ within the meaning of the Fourth
Amendment only if, in view of all the circumstances surrounding the incident,
a reasonable person would have believed that he was not free to leave,” id. at
554, and a reasonable person would so regard Officer Adriance’s direction.
However, as Hodari D., supra, made clear, the existence of such a reasonable
belief would not end the matter. Rather, Hodari D. specifically notes that
Mendenhall
says that a person has been seized “only if,” not that he has been
seized “whenever”; it states a necessary, but not a sufficient,
condition for seizure—or, more precisely, for seizure effected
3
In this opinion, we address only the question of whether Walker’s rights under the Fourth
Amendment to the United States Constitution were violated; no question is posed regarding a
violation under the corresponding provision of the Georgia Constitution. See Art. I, Sec. I, Par. XIII
of the Ga. Const. of 1983. Although Walker cited the Georgia Constitution in his motion to
suppress, “the [trial] court ruled only on the Fourth Amendment basis, and there is no state
constitutional ruling for us to review. It is appellant’s obligation to pursue the grounds he raises and
obtain a ruling on them in the trial court, if he wishes to obtain appellate review. [Cits.]” Thomas v.
State, 203 Ga. App. 529, 530-531 (1) (417 SE2d 529) (1992). Thus, properly, the Court of Appeals
did not address any such claim, and, in any event, it has been noted that our Constitution protects
against “unreasonable” searches and seizures just as the Fourth Amendment does. Salermon v. State,
280 Ga. 735, 738 (1) (632 SE2d 645) (2006). Further, when this Court granted the application for
certiorari, the question posed referred only to the Fourth Amendment, and did not embrace any issue
under the Georgia Constitution. See id.
7
through a ‘show of authority.’
Hodari D., supra at 628. And, as Hodari D. also made clear, without
submission to that show of authority, there was not a seizure. Walker did not
submit to Officer Adriance’s command, and thus he was not seized until Officer
Adriance physically seized him. That Officer Adriance pursued Walker when
he ran does not alter matters as “being chased is not tantamount to being ‘seized’
in violation of the Fourth Amendment. [Cits.]” Smith v. State, 217 Ga. App. 680
(1) (458 SE2d 704) (1995) (Emphasis in original.) See also Sims v. State, 258
Ga. App. 662, 663 (574 SE2d 879) (2002) (“[B]ecause Sims threw away the bag
containing the cocaine when Officer Jones was chasing him, the trial court was
authorized to find that the cocaine was not seized as the result of a search but
was instead abandoned before Sims submitted to the officer's request to stop.”)
(Punctuation omitted.)
Hodari D.’s holding that there must be submission to an officer’s show
of authority in order for there to be a seizure thereby has certainly been
recognized in the appellate decisions of this State. See, e.g., Gray v. State, 254
Ga. App. 487, 488 (1) (562 SE2d 712) (2002) (“Although Gray's vehicle was
signaled to stop in a police show of authority, Gray immediately fled the car[;
8
he] had not submitted to authority, nor was he in physical custody, when his car
was stopped or when he discarded the paper bag containing the illegal drugs.”);
Brown, supra; Walker v. State, 228 Ga. App. 509, 510 (1) (493 SE2d 193)
(1997) (Suspect “was not ‘seized’ when he first got back in the car at [the
officer’s] command. [Cit.] He was not ‘seized’ until he was finally
[captured.]”); Hunt v. State, 205 Ga. App. 490 (423 SE2d 24) (1992) (Suspects
attempted to drive away when officers activated blue lights, one throwing an
object from the vehicle as they fled.)
Nonetheless, Walker notes several opinions of the appellate courts of this
State that he contends demonstrate that a seizure occurs at the time of the
officer’s assertion of authority, without regard to any issue of the suspect’s
submission to that authority. However, his reliance on these opinions is
misplaced. Although the Court of Appeals in Hernandez-Espino v. State, 324
Ga. App. 849, 850-852 (1) (752 SE2d 10) (2013), determined that a seizure
occurred when the officer “told” the suspect to “just give me the drugs you just
bought,” it did so without any examination of the effect of the suspect’s failure
to comply with the direction, or the precedents of the United States Supreme
9
Court regarding the matter.4
We have repeatedly cautioned that our decisions stand only for the
points raised by the parties and decided by the court. See, e.g., State
v. Outen, 289 Ga. 579 (714 SE2d 581) (2011); Palmer v. State, 282
Ga. 466, 651 S.E.2d 86 (2007). “Questions which merely lurk in the
record, neither brought to the attention of the court nor ruled upon,
are not to be considered as having been so decided as to constitute
precedents.” Id. at 468, 651 S.E.2d 86 (citation and punctuation
omitted).
Holton v. Physician Oncology Services, LP, 292 Ga, 864, 869-870 (2) (72 SE2d
702) (2013).
Further, examination of other opinions Walker cites for this proposition
shows that he has a misunderstanding of the facts involved. For instance, in
State v. Banks, 223 Ga. App. 838 (479 SE2d 168) (1996), although submission
to the police officer’s direction is not specifically mentioned in the recitation of
the facts, from what is reported, it appears that the suspect complied with the
direction that he “take his hand out of his pocket,” id. at 839, and thus, the Court
of Appeals correctly determined that a seizure had occurred at that point, even
though the Court characterized the point of seizure as the officer’s act of
4
The opinion recites that the suspect “denied having any drugs. The officer then asked for
consent to search, and [the suspect] agreed. The officer found crack cocaine in [the suspect’s]
pocket.”
10
“demanding that he remove his hand from his pocket.” Id. at 840. See also
Durden v. State, 320 Ga. App. 218, 220 (739 SE2d 676) (2013) (The suspect
removed his hands from his pockets when directed, and “even if the officer’s
initial interaction with [the suspect] could be characterized as a first-tier
encounter, it escalated into a second-tier stop when the officer ordered Durden
to remove his hands from his pockets”); Brown v. State, 301 Ga. App. 82, 84
(686 SE2d 793) (2009) (“What began as a first-tier encounter escalated into a
second-tier stop when the officer told him to remove his hands from his
pockets,” and the suspect removed one hand.); Peters v. State, 242 Ga. App.
816, 818 (531 SE2d 386) (2000) (The suspect “obeyed [the officers’] command”
to stop.) (Eldridge, J., concurring specially.)
Walker also contends that Sams v. State, 265 Ga. 534 (459 SE2d 551)
(1995), appears to be decided on the theory that a command from a law
enforcement officer with which a suspect does not comply, by itself, constitutes
a seizure under the Fourth Amendment.5 The majority in Sams did not address
the holding in Hodari D., supra, and certainly did not reach the conclusion
5
Although the majority opinion in Sams does not mention any constitutional provision, its
reliance on Terry, supra, reveals that it was decided under the Fourth Amendment.
11
Walker urges. See Holton, supra. Rather, the Sams opinion merely proceeds
from the State’s position “that the officer had sufficient grounds to detain Sams
for questioning and to arrest Sams and that the search of Sams following the
arrest gave probable cause to believe the truck contained drugs,” Sams, supra at
535 (1), and rejects that contention, determining instead that “[t]he officer's
decision to order Sams to stop was based only on Sams apparent race and the
fact that Sams walked away upon seeing the officer.” Id. at 535 (1,2).
However, to the extent that Sams, or any other decision of the appellate Courts
of this State, can be read as standing for the proposition that an officer’s
uncomplied-with command alone constitutes a seizure without regard to the
holding of Hodari D., those cases are hereby overruled.
Finally, Walker argues that, even if he did not comply with Officer
Adriance’s command to remove his hands from his pockets, he nonetheless
stopped walking, a show of submission to the officer’s authority.6 But, it must
be remembered, “there is no seizure without actual submission” to the show of
authority, Brendlin, supra (emphasis supplied), and Walker certainly did not
6
We note that the trial court’s order did not find that Walker stopped in response to Officer
Adriance’s command to remove his hands from his pockets. See Registe v. State, supra.
12
submit to the actual direction. Even assuming that Walker stopped in response
to Officer Adriance’s command, “to comply with an order to stop—and thus to
become seized—a suspect must do more than halt temporarily; he must submit
to police authority . . . .” United States v. Baldwin, 496 F.3d 215, 218 (II) (2nd
Cir., 2007). If Walker stopped in response to Officer Adriance’s command, it
was only a temporary halting, and not an actual submission to the asserted
authority. See United States v. Salazar, 609 F.3d 1059, 1066 (II) (C) (10th Cir.,
2010) (“Mr. Salazar did not submit to [the show of] authority until he complied
with Trooper Berner’s command to get out of the pickup.”)7 As Walker did not
submit to Officer Adriance’s show of authority before abandoning the items at
issue, the Court of Appeals erred in reversing the trial court’s denial of Walker’s
motion to suppress.
Judgment reversed. All the Justices concur, except Benham, J., who
dissents.
7
As we find that the Court of Appeals erred in determining that Walker had been seized
when Officer Adriance commanded him to remove his hands from his pockets, we need not address
its conclusion that Officer Adriance did not at that time have “an objective, articulable suspicion of
criminal activity.” Walker, 323 Ga. App. at 563 (1) (Punctuation omitted.)
13
S13G1793. THE STATE v. WALKER.
BENHAM, Justice, dissenting.
I write because I respectfully dissent. I believe the Court of Appeals’s
opinion was well-reasoned and reached the right result when it concluded that
the trial court erred by failing to grant Walker’s motion to suppress. See Walker
v. State, 323 Ga. App. 558 (747 SE2d 51) (2013). Accordingly, I cannot join
in this Court’s majority opinion.