In re G. M. W.

355 Ga.App. 151

842 S.E.2d 920

In the INTEREST OF G. M. W., a child.

A20A0514

Court of Appeals of Georgia.

May 13, 2020

Kaylee E. Maxwell, for appellant.

John H. Cranford, Jr., District Attorney, Nathaniel L. Smith, Assistant District Attorney, for appellee.

Colvin, Judge.

G. M. W. was adjudicated delinquent on charges of misdemeanor obstruction, giving a false name to a law enforcement officer, possession of a handgun by a person under 18 years of age, and misdemeanor theft by receiving stolen property.¹ G. M. W. argues on appeal that (1) the trial court erred in denying his motion to suppress following an unlawful search of his person and backpack and (2) there was insufficient evidence to support his adjudication for misdemeanor obstruction, for misdemeanor theft by receiving a stolen firearm, and for misdemeanor giving a false name to a law enforcement officer. For the reasons set forth below, we affirm the denial of G. M. W.’s motion to suppress, reverse the adjudication of delinquency for theft by receiving a stolen weapon, and affirm the juvenile court's adjudication on the remaining charges.

By agreement between the defense and the State, the trial court combined the hearing on the motion to suppress² with G. M. W.’s adjudicatory hearing. Viewed in the light most favorable to support the juvenile court's findings of delinquency³ and its ruling on the motion to suppress,⁴ the evidence at that hearing showed that at around 10:30 a.m. on a weekday, May 9, 2019, two City of Newnan police officers were on patrol when they observed G. M. W., who was 15 years old and wearing a school-type backpack, and another male, who appeared to the officers to be school age, walking in a shopping area. Because there had been a number of recent car break-ins involving juveniles in the area, the officers decided to initiate a "citizen encounter" with the two young men to determine if they were cutting school. One of the officers (the "First Officer") spoke with G. M. W., while the other officer (the "Second Officer") spoke with his companion. G. M. W. told the First Officer that his name was "Brandon Smith," gave a false birthdate, told them that he attended a certain school, and said that his school hours did not begin until the afternoon. G. M. W. asked the First Officer several times if he was being detained, and the officer replied that he was just asking questions and asked why G. M. W. was making that difficult. Then, while the First Officer was checking the information provided, G. M. W. asked the Second Officer if he was being detained, and that officer told him he was being held until the officers finished their investigation. After the First Officer was unable to verify the name and date of birth G. M. W. provided, the officers allowed the two young men to walk away. This entire encounter lasted four to five minutes.

Afterward, the school's resource officer called the First Officer to report that there was no one by the name of Brandon Smith who attended the school. The police officers then decided to re-initiate contact with G. M. W., whom they located in another part of the shopping area. This second contact occurred about eight to ten minutes after the first one ended. The officers advised G. M. W. that the information he had given appeared to be false. After they radioed for a fingerprint scanner to identify him, he gave the officers his correct name and date of birth. He also told them that he was on probation and wearing an ankle monitor. At that point in time, the officers believed that they had probable cause to arrest G. M. W. for giving false information. The Second Officer asked G. M. W. for permission to search his backpack, but G. M. W. declined to give his consent. When the officers announced they were going to frisk G. M. W., he became agitated and began to move away from them. Each officer held one of G. M. W.’s arms so he would not flee, and he became "extremely irate" and continued to attempt to get away. As the Second Officer explained, he kept tensing up "as if he was trying to pull away" from his grip, causing the Second Officer to place him on the ground and handcuff him. At that point, G. M. W. told the officers that he had a pistol in his backpack. The First Officer retrieved the weapon, and when he ran the serial number, it came back as stolen.

Based on this evidence, the juvenile court denied the motion to suppress, finding no Fourth Amendment violation, and further found G. M. W. to be delinquent on the misdemeanor counts of obstruction of the Second Officer, giving false information to a law enforcement officer, possession of a handgun by a person under the age of 18, and theft by receiving stolen property.

1. Motion to Suppress. We review the trial court's denial of G. M. W.’s motion to suppress under the following principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment.

(Citation and punctuation omitted.) State v. Rosenbaum , 305 Ga. 442, 449 (2), 826 S.E.2d 18 (2019). Moreover, "an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court. We must focus on the facts found by the trial court in its order , as the trial court sits as the trier of fact." (Citation omitted; emphasis in original.) Williams v. State , 301 Ga. 60, 61, 799 S.E.2d 779 (2017).

Although we owe substantial deference to the way in which the trial court resolved disputed questions of material fact, we owe no deference at all to the trial court with respect to questions of law, and instead, we must apply the law ourselves to the material facts. This includes legal determinations based upon the totality of the circumstances.

(Citation and punctuation omitted.) Oh v. State , 345 Ga. App. 729, 730, 815 S.E.2d 95 (2018).

Applying these principles, we turn next to the applicable law to guide our review.

The Supreme Court of the United States has set forth ... 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. And, thus, in order to analyze a defendant's claim that he was the victim of an illegal police detention, a court must first categorize the police-citizen encounter at issue.

(Citations and punctuation omitted.) State v. Robusto , 348 Ga. App. 579, 582, 824 S.E.2d 37 (2019). See also Terry v. Ohio , 392 U. S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

(a) First Encounter. As the juvenile court found, the first encounter between police and G. M. W. began as a first-tier encounter when the First Officer asked for G. M. W.’s name, date of birth, and school information. "In a first-tier encounter, police may approach citizens, ask for identification, ask for consent to search, and otherwise freely question the citizen without any basis or belief of criminal activity so long as the police do not detain the citizen or convey the message that the citizen may not leave." (Citation and punctuation omitted.) Sexton-Johnson v. State , 354 Ga. App. ––––, –––– (1), 839 S.E.2d 713, 717 (2020). "In such an encounter, a citizen is completely free to exercise their right to ignore the police and leave. Indeed, a citizen's ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter." (Citation and punctuation omitted.) Id. Although the First Officer did not directly answer G. M. W.’s question about whether he was being detained, there is no evidence that he ever conveyed the message that G. M. W. was not free to leave. See In the Interest of C. B. , 353 Ga. App. 383, 384, 837 S.E.2d 544 (2020) (officer's initial contact with juvenile was a first-tier encounter where officer pulled over to ask juvenile his name because of recent car break-ins). It was during this lawful, first-tier encounter that G. M. W. gave the officer false identifying information.

However, "[e]ncounters can progressively escalate, and a first-tier encounter becomes a second-tier detention once a reasonable person no longer believes that he or she is free to leave." (Citation and punctuation omitted.) Sexton-Johnson , 354 Ga. App. –––– at (1) (a), 839 S.E.2d 713, 717. See also Dougherty v. State , 341 Ga. App. 120, 124-25, 799 S.E.2d 257 (2017) ("[A]n encounter escalates from a first-tier consensual interaction to a second-tier investigatory detention only when the individual is ‘seized’ by the officer, i.e., only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of the individual.") (citation and punctuation omitted). When the Second Officer informed G. M. W. that he was being detained until the officers completed their investigation, the matter was elevated to a second-tier encounter. See In the Interest of C. B. , 353 Ga. App. at 384-385, 837 S.E.2d 544 (first-tier encounter escalated to second-tier when officer told juvenile to stay in front of his car). Although the officers had no articulable suspicion to detain G. M. W., the detention was very brief. The entire first encounter lasted only four to five minutes, and the detention did not occur until after G. M. W. had already given his identifying information to the First Officer and thus was even shorter. The officers then let the two young men go without further...