Durden v. State

320 Ga.App. 218

739 S.E.2d 676

DURDEN

v.The STATE.

No. A12A2556.

Court of Appeals of Georgia.

March 8, 2013.

Rodney Alan Williams, Decatur, for Appellant.

Paul L. Howard, Jr., Dist. Atty., Paige Reese Whitaker, Joshua Daniel Morrison, Asst. Dist. Attys., for Appellee.

BARNES, Presiding Judge.

A police officer found several grams of crack cocaine and a large amount of cash on Steven Durden, resulting in his indictment on the charge of possession of cocaine with intent to distribute. Following the denial of Durden's motion to suppress the drugs and cash, we granted his application for interlocutory appeal. Discerning no error by the trial court, we affirm.

In reviewing a trial court's decision on a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment, and the trial court's findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous. Further, because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them. However, when evidence is uncontroverted and no question of witness credibility is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review.

(Punctuation and footnotes omitted.) Hammont v. State, 309 Ga.App. 395, 396, 710 S.E.2d 598 (2011).

Viewed in the light most favorable to the trial court's ruling, the evidence showed that an officer with the City of Atlanta Police Department was on patrol one morning in an area known for drug activity. As the officer drove by in his patrol car, an unidentified woman, described by the officer as a “concerned citizen,” flagged the officer down and stated that she had just seen a man standing on the corner selling drugs. She told the officer that the man was African–American and was wearing a blue hoodie jacket, black pants, and a blue hat, and she described exactly where he had been standing.

“At that point,” the officer drove over to the corner. Although the officer did not observe any illegal activity, he saw a man standing there who matched the description provided by the woman. The man was later identified as Durden. When the officer got out of his patrol car, Durden turned and started to walk away. The officer asked Durden to stop so that he could speak with him. Durden complied. The officer then asked Durden for identification, which he was unable to produce. According to the officer, Durden appeared nervous and “was fidgeting around with his hands in his pocket[s].” When the officer instructed Durden to remove his hands from his pockets, he did so. The officer then asked Durden if he was selling drugs, and he responded, “I don't sell no drugs, ..., but go ahead, I don't have anything.” The officer searched Durden's pockets and found 3.3 grams of crack cocaine and approximately $600 in cash.

Durden moved to suppress the drugs and money on the grounds that his initial encounter with the officer was a second-tier investigator stop, that the officer lacked reasonable suspicion to justify the stop, and that he had not voluntarily consented to the search of his pockets. After conducting an evidentiary hearing in which the officer was the sole witness, the trial court denied the motion to suppress. The trial court agreed with Durden that his initial encounter with the officer was a second-tier investigatory stop, but the court found that the stop was justified because the officer had a reasonable suspicion that Durden was involved in criminal activity based on the information provided to him by the concerned citizen. The trial court further found that Durden had voluntarily consented to having the officer search him.

1. Durden contends that the trial court erred in finding that the officer had a reasonable suspicion of criminal activity to justify a second-tier investigatory stop. According to Durden, the unidentified woman who flagged down the officer was not a “concerned citizen” as that term is understood in our precedent, but rather an “anonymous tipster.” Consequently, Durden maintains that the woman's reliability could not be presumed and that the information she supplied to the officer was insufficiently detailed to justify the stop.

At the outset, we note that the trial court did not err in finding that the initial encounter between the officer and Durden rose to the second tier. “There are at least three tiers of police-citizen encounters: (1) consensual encounters; (2) brief investigatory stops that require reasonable suspicion; and (3) arrests that must be supported by probable cause.” (Citation and footnote omitted.) O'Neal v. State, 273 Ga.App. 688, 690, 616 S.E.2d 479 (2005). “So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.” (Citation and punctuation omitted.) Jones v. State, 291 Ga. 35, 37(1), 727 S.E.2d 456 (2012). But a police-citizen encounter rises to the level of a second-tier investigatory stop “if the officer restrains the citizen's movement by physical force, command, or show of authority.” (Citation and punctuation omitted.) Smith v. State, 288 Ga.App. 87, 88, 653 S.E.2d 510 (2007).

Here, there was evidence that the officer called out to Durden as he was walking away and told him to stop so that he could speak with him. Faced with this situation, a reasonable person would believe that he was not free to disregard the officer's command and go about his business. Durden's initial encounter with the officer thus constituted a second-tier investigatory stop. See, e.g., Walker v. State, 299 Ga.App. 788, 790(1), 683 S.E.2d 867 (2009) (encounter was second-tier where the officer told the defendant to “hold on[,] come here,” and sit on the pavement, and then questioned him pursuant to a “field investigation”); Peters v. State, 242 Ga.App. 816, 817(1), 531 S.E.2d 386 (2000) (encounter was second-tier where officers “verbally commanded [the defendant] to stop and prevented him from entering his automobile”). Moreover, even if the officer's initial interaction with Durden 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. See Brown v. State, 301 Ga.App. 82, 84, 686 S.E.2d 793 (2009) ( “What began as a first-tier encounter escalated into a second-tier stop when the officer told [the defendant] to remove his hands from his pockets.”). Accordingly, the trial court committed no error in concluding that the encounter was a second-tier investigatory stop, and thus in requiring the State to prove that the officer had a reasonable suspicion that Durden was involved in criminal activity to justify the stop. See Dominguez v. State, 310 Ga.App. 370, 373–374, 714 S.E.2d 25 (2011) (State carries burden of proving that officers had reasonable suspicion to justify investigatory stop).

To meet the reasonable suspicion standard, police must point, under the totality of the circumstances, to specific and articulable facts which, taken together with rational inferences from those facts, provide a particularized and objective basis for suspecting the particular person stopped of criminal activity. Accordingly, a general suspicion or a mere hunch is not sufficient to support an investigative stop. Although the primary means by which officers acquire reasonable suspicion is personal observation, information acquired from an informant that exhibits a sufficient indicia of reliability can also be the basis for reasonable suspicion.

(Citations and punctuation omitted.) Slocum v. State, 267 Ga.App. 337, 337–338, 599 S.E.2d 299 (2004).

If the informant is a “concerned citizen” as that term is used in our precedents, the information provided to the police is presumed to be reliable. See Dominguez, 310 Ga.App. at 374, n. 11, 714 S.E.2d 25. (noting that if record had contained evidence that informant was a “concerned citizen,” then “the trial court might properly have concluded that the information provided to the deputies was presumptively reliable”); Penny v. State, 248 Ga.App. 772, 775(2)(b), 547 S.E.2d 367 (2001) (“[A] law-abiding concerned citizen has a built-in credibility and is deemed to be reliable.”) (citation omitted). In contrast, if the informant is an “anonymous tipster,” the information provided to the police must be “detailed enough to providesome basis for predicting the future behavior of the suspect,” and the details must be corroborated by the police for the tipster's reliability to be established. Register v. State, 315 Ga.App. 776, 778, 728 S.E.2d 292 (2012). See also Slocum, 267 Ga.App. at 338, 599 S.E.2d 299 (information provided by anonymous tipster “may exhibit sufficient indicia of reliability if it provides details correctly predicting a subject's not easily predicted future behavior, or if it provides other details which police corroborate as showing similar inside information about the subject's affairs”) (citations and punctuation omitted). Whether an informant is a concerned citizen or an anonymous tipster turns on the facts and circumstances of the case, not the label applied to the informant by the State or the testifying officers. See Fair v. State, 284 Ga. 165, 172(3)(b), 664 S.E.2d 227 (2008).

We conclude that there was evidence to support the trial court's finding that the unidentified woman who flagged down the officer fell into the category of a concerned citizen rather than an anonymous tipster. Generally, as the terminology itself implies, we have distinguished a concerned citizen from an anonymous tipster by the fact that the identity of the citizen is known to the police. See Register, 315 Ga.App. at 778, n. 1, 728 S.E.2d 292 (2012) (“It is true that when hearsay information is supplied by an identified interested citizen, the citizen's credibility is not as suspect and the analysis...