State v. Bizzard

357 Ga.App. 339

850 S.E.2d 775

The STATE

v.BIZZARD; and vice versa.

A20A1212, A20A1213

Court of Appeals of Georgia.

October 23, 2020

Meg E. Heap, District Attorney, Ian R. Heap, J., Assistant District Attorney, for the State.

Virginia C. Purdee, for Bizzard.

Mercier, Judge.

Kasib Bizzard was indicted on charges of possession of a controlled substance with intent to distribute, possession of a firearm during the commission of a felony, theft by receiving stolen property (the firearm), and possession of a firearm by a convicted felon during the commission of a crime. He moved to suppress evidence of drugs and a firearm found on or near him during his arrest, contending that officers lacked reasonable, articulable suspicion to stop him and that they arrested him without probable cause. The State countered that officers had reasonable suspicion to temporarily detain Bizzard, such that his attempt to walk away and resist detention gave them probable cause to arrest him for obstruction.

The trial court granted the motion to suppress the drug evidence, but denied the motion as to the gun evidence. In Case No. A20A1212, the State appeals the suppression of the drug evidence.¹ Bizzard cross-appeals in Case No. A20A1213, challenging the trial court's refusal to suppress the gun evidence. For reasons that follow, we affirm the judgment in Case No. A20A1212, and we reverse the judgment in Case No. A20A1213.

"In reviewing a ruling on a motion to suppress, we review the trial court's factual findings for clear error and its legal conclusions de novo." Kennebrew v. State , 304 Ga. 406, 409, 819 S.E.2d 37 (2018) ; see also State v. Underwood , 283 Ga. 498, 500, 661 S.E.2d 529 (2008).

At a hearing on the motion to suppress, the State called only one witness, a police officer ("agent") with the Savannah Police Department. The agent was part of a task force formed in response to a rise in violent crimes in the city. On December 29, 2018, he was working undercover, assigned to look for possible crimes near two adjacent houses on Collins Street, where there had been multiple reported incidents of narcotics and other criminal activity over the previous two years. The agent heard over the radio that a crowd of people had gathered in front of the specified addresses, and he was asked to drive by the area.

When the agent approached in an unmarked vehicle, he noticed a man standing in the middle of Collins Street, "looking up and down the street, which usually indicates a countersurveillance[.]" The agent also saw about eight to ten people in a crowd. One person was leaning over, "which is usually like they were rolling dice." The agent added that "part of the crowd was around that area" and, based on his training and experience, a group of people rolling dice against a curb is "usually a sign of someone gambling .... [i]llegally." About half of the group was standing in the road. The agent reported his observations by radio to the task force, drove past the group, and parked a short distance away.

The agent heard over the radio that the plan was for officers driving marked vehicles to approach the crowd, activate their vehicles’ blue lights, and detain the people who were on the scene. The agent drove back to the area and, upon arriving, saw multiple marked vehicles. He also observed Bizzard being "picked up" and "assisted off the ground" by police officers, who then escorted Bizzard to a police car. The agent saw a firearm in "practically the same spot" where Bizzard "was taken off the ground." The agent "came up and detained [Bizzard] on his left" arm, while another officer "had him on one side." The other officer searched Bizzard, finding a pill bottle containing heroin in Bizzard's pocket. The agent noted that while the evidence was being recovered from Bizzard, he was "being disorderly."

Asked where Bizzard had been standing in the group when the agent first drove through, he testified that he "couldn't pick out an individual," as "[i]t was just a group of people down there." He added that Bizzard was not the person he saw standing in the middle of the street, and he did not identify Bizzard as the person he saw possibly rolling dice. The agent further testified that he did not see Bizzard walking away from police vehicles. The State introduced video footage from the body camera of another officer who arrived on the scene. That footage did not show any persons fleeing, and it depicted no events involving Bizzard prior to him being held down or lifted off the ground. During this encounter, Bizzard asserted that he "didn't do anything" and "was just walking up the street."

The trial court issued two orders on the motion to suppress. In the first order, it found, based on the totality of circumstances (namely, the history of the property, the individual standing in the intersection, and the crowd gathered around an individual who appeared to be rolling dice), that the officers had reasonable, articulable suspicion of criminal activity that justified a brief second-tier stop of "the group." The court added that the second-tier encounter had risen to a third-tier encounter or full arrest by the time the agent witnessed officers picking Bizzard up off the ground, after which they found the drugs and gun. The trial court did not address whether probable cause authorized the arrest, instead asking the parties to brief the matter. It found, however, that Bizzard lacked standing to contest the admissibility of the firearm seized in the encounter because he had stated at the scene that the gun was not his.

Through subsequent briefing, the State argued that Bizzard's effort to flee from the second-tier stop and resist detention "constituted the offense of [o]bstruction providing [p]robable [c]ause for a tier three arrest and a search incident to that arrest." The trial court rejected this claim in its second order, finding that "while probable cause may have indeed existed for [Bizzard's] arrest [for obstruction], the evidence was not presented." The court noted that the testifying agent did not arrive until Bizzard was being held on the ground, and the agent offered no testimony regarding Bizzard's encounter with police prior to that time. Concluding that the State had not demonstrated probable cause for the arrest, the trial court suppressed the drug evidence seized from Bizzard's pocket.

Case No. A20A1212

1. The State contends that the trial court erred by applying a standard of "beyond a reasonable doubt," rather than "probable cause," in deciding whether Bizzard's arrest for obstruction was lawful. This contention is without merit.

The Fourth Amendment protects a person's right to be secure against unreasonable searches and seizures. When a defendant raises a Fourth Amendment claim, we must be mindful that there 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.

Lewis v. State , 307 Ga. App. 593, 594, 705 S.E.2d 693 (2011) (citations and punctuation omitted). The State has the burden of proving the lawfulness of a search and seizure. OCGA § 17-5-30 (b).

In its order, the trial court did not state that it was applying a "beyond a reasonable doubt" standard to the motion to suppress. Rather, it concluded that the State failed to present evidence that probable cause existed to arrest Bizzard. The proper standard was applied.

Moreover, the record supports the trial court's conclusion. The concept of probable cause requires that police "possess knowledge of objective facts and circumstances that would lead a reasonable officer to believe that the suspect has committed or is committing a crime." State v. Carr , 322 Ga. App. 132, 134-135, 744 S.E.2d 341 (2013). The State claims that probable cause existed because Bizzard resisted officers who were detaining him during the second-tier stop. See OCGA § 16-10-24 (a) (The crime of obstruction results when a person "knowingly and willfully obstructs or hinders any law enforcement officer ... in the lawful discharge of his or her official duties[.]"). A key issue, however, is when Bizzard was arrested. In analyzing the timing of an arrest, a court considers "whether the individual was formally arrested or restrained to a degree associated with a formal arrest[.]" Galindo-Eriza v. State , 306 Ga. App. 19, 23-24 (1), 701 S.E.2d 516 (2010) (citation and punctuation omitted). The question "is whether a reasonable person in the suspect's position...