Lewis v. the State.

307 Ga.App. 593

705 S.E.2d 693

11 FCDR 129

LEWIS

v.The STATE.

No. A10A1669.

Court of Appeals of Georgia.

Jan. 21, 2011.

Stephen R. Scarborough, Atlanta, for appellant.Patrick H. Head, District Attorney, John R. Edwards, Albert T. Reeves, Assistant District Attorneys, for appellee.BARNES, Presiding Judge.

Following a stipulated bench trial, Chris Lewis was convicted of possession of a firearm by a convicted felon, loitering and prowling, and carrying a concealed weapon. Lewis appeals from the denial of his motion for a new trial, contending that the trial court erred in denying his motion to suppress the firearm seized from his person. For the reasons set forth below, we affirm.

In reviewing the grant or denial of a motion to suppress, we construe the evidence in a light most favorable to upholding the trial court's findings and judgment. When the trial court's findings are based upon conflicting evidence, we will not disturb the lower court's ruling if there is any evidence to support its findings, and we accept that court's credibility assessments unless clearly erroneous.

(Citation omitted.) Sommese v. State, 299 Ga.App. 664, 665, 683 S.E.2d 642 (2009).

So viewed, the record reflects that two officers with the Cobb County Police Department were patrolling in a high-crime area known for armed robberies. Around 11:30 p.m., they observed Lewis alone in the parking lot of a convenience store near the gas pumps. The store was closed and the lights at the gas pumps were off, but the light was still on inside the store such that the manager could be seen preparing to leave. The officers knew that this particular store had been robbed numerous times during closing.

The officers observed Lewis walk away from the gas pumps to the edge of the unlit parking lot, then remain there while looking

[307 Ga.App. 594 , 705 S.E.2d 695]

toward the inside of the store where the manager was getting ready to turn off the store lights. The officers drove into the parking lot in their marked patrol car, and Lewis began to walk away from the car but returned when the officers spoke to him. In response to the officers' questions, Lewis, who appeared extremely nervous, said that he was walking to a nearby bus stop. The officers did not accept Lewis's explanation and concluded that “[h]e didn't belong in the area.” According to one of the officers who had been assigned to that patrol zone for approximately one year, people did not normally cross the store parking lot at that time of night to reach the bus stop.

Concerned that Lewis might be armed, the officers patted Lewis down for weapons. Lewis was wearing baggy pants, and the officers initially felt nothing suspicious. The second officer, however, noticed that Lewis turned his body away while the first officer patted down the front of his clothing. When the first officer subsequently returned to the patrol car to check Lewis's license and for outstanding warrants, the second officer continued to observe Lewis, who still appeared extremely nervous and was looking around and grabbing the right front pocket of his pants. Believing that Lewis kept grabbing his pocket to readjust a weapon, the second officer performed a second pat-down of Lewis's right front pocket. As soon as the second officer touched the outside of Lewis's pocket, he felt a firearm and took Lewis into custody. The entire encounter lasted only a few minutes.

On appeal, Lewis contends that the first pat-down of his person by the officers was unconstitutional because the officers could not point to any specific articulable facts from which they could have inferred that he was armed and dangerous. Lewis further contends that the firearm recovered during the second pat-down was fruit of the poisonous tree that should not have been admitted as evidence by the trial court. We disagree.

“The Fourth Amendment protects a person's right to be secure against unreasonable searches and seizures.” (Citation and punctuation omitted.) Davis v. State, 303 Ga.App. 785, 786, 694 S.E.2d 696 (2010). When a defendant raises a Fourth Amendment claim, we must be mindful that

[t]here are 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.

(Citations and punctuation omitted.) McClain v. State, 226 Ga.App. 714, 716(1), 487 S.E.2d 471 (1997). In a second-tier encounter, known as a Terry stop, “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.” (Citation and punctuation omitted.) Id. See Terry v. Ohio, 392 U.S. 1, 21(III), 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The parties agree that the present case involved a second-tier encounter, and Lewis does not dispute that the officers had a particularized and objective basis for stopping and briefly detaining him in the parking lot.

In the context of a second-tier encounter,

an officer may conduct a pat-down search of a person whom he reasonably believes to be armed or otherwise dangerous to the officer or others. A reasonable search for weapons for the protection of the police officer is permitted where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.

(Punctuation and footnotes omitted.) Meadows v. State, 303 Ga.App. 40, 42(1), 692 S.E.2d 708 (2010). See Terry, 392 U.S. at 27(III), 88 S.Ct. 1868. The officer's belief that the individual is armed and dangerous cannot be predicated upon a mere suspicion or hunch; rather, the officer “must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” (Citation omitted.)

Molina v. State, 304 Ga.App. 93, 95, 695 S.E.2d 656 (2010). The critical question that must be asked “is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U.S. at 27(III), 88 S.Ct. 1868. The burden is on the State to prove the lawfulness of a pat-down search for weapons. See Molina, 304 Ga.App. at 95, 695 S.E.2d 656.

The State met its burden in this case. The initial pat-down of Lewis was supported by the following combined, particularized facts observed by the officers: the presence of Lewis late at night in a high-crime area known for armed robberies; his proximity to a closed convenience store that had been robbed on numerous occasions during closing; Lewis's observation of the store manager in the process of closing the store while standing in an unlit parking lot; his extreme nervousness; his wearing of baggy clothing in which a weapon could be easily concealed; the inadequacy of his explanation to the officers for his presence outside the store; and his initial fleeing from the officers when they pulled into the parking lot. These actions of Lewis were consistent with the officers' hypothesis that Lewis was contemplating a robbery of the store manager, “which, it is reasonable to assume, would be likely to involve the use of weapons.” Terry, 392 U.S. at 28(IV), 88 S.Ct. 1868. As such, the trial court was authorized to find that a reasonably prudent person under these circumstances would have been warranted in believing that Lewis posed a danger to his or her safety, such that the officers' act of conducting the initial pat-down search for a weapon was constitutionally permissible. See, e.g., id. (defendant and his companion's suspicious behavior indicating that they were casing out store in “preface to a ‘stick-up’ ” authorized pat-down search for weapons); Woods v. State, 275 Ga.App. 340, 344(1)(b), 620 S.E.2d 609 (2005) (defendant's peering into parked car in mall parking lot where there had been a rash of vehicle break-ins, combined with inadequacy of his explanation to police for his suspicious conduct, authorized pat-down search for weapons); State v. McKinney, 265 Ga.App. 322, 323–325, 593 S.E.2d 865 (2004) (defendant and companion's loitering in poorly lit area of parking lot outside motel...