State v. Mrozowski

901 S.E.2d 327

The STATE

v.MROZOWSKI.

A24A0331

Court of Appeals of Georgia.

May 6, 2024

John Alexander Fitzner III, Aaron Scott Palmer, Jamey Chase Sherrod, for Appellant.

Brandi Dukes Payne, for Appellee.

Land, Judge.

Christopher Mrozowski was indicted for charges including obstruction, of an officer, terroristic threats, interference with government property, and possession of a drug related object arising from an incident where police approached him in a public pavilion after receiving an anonymous phone tip. Mrozowski filed a motion to suppress evidence obtained as a result of that interaction, arguing that the police impermissibly escalated the encounter to a second- or third-tier encounter without probable cause. The trial court found that the initial detention and subsequent detention of Mrozowski were illegal and granted the motion to suppress. The State appeals from the trial court’s grant of that motion. For the following reasons, we affirm.

[1] On appeal from a motion to suppress, "the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them." (Citations and punctuation omitted.) State v. King, 227 Ga. App. 466, 467-468, 489 S.E.2d 361 (1997).

So viewed, the record shows that on September 21, law enforcement with the Swainsboro Police Department and Emanuel County Sheriff’s Office were dispatched after receiving an anonymous call that there were two white males acting "suspicious [and] doing drugs" near a public pavilion in Swainsboro The caller also stated that one of the males was wearing a green shirt and had active warrants. When Officer Todd Purcell arrived at the pavilion, he saw two men sitting on the ground under a public pavilion. Nothing in the record indicates whether either individual was wearing a green shirt. Officer Percell testified that one of these men, later identified as Mrozowski, appeared to be unsteady and was "slurring his words just a little bit when he talked." Mrozowski denied being under the influence of alcohol, drugs or medication. Officer Percell asked for a form of identification. Mrozowski handed him an ID card that did not belong to him and stated that he had just found it by the nearby CVS and had not yet had time to turn it into authorities. When Officer Percell asked for his actual ID card, Mrozowski "tried to step to walk away like he was gonna flee." However, his escape route was blocked by another officer who had just arrived and was standing in his path. The second officer yelled, "Hey, you okay over there?" to Officer Percell. Mrozowski then attempted to walk away in a different direction.

Officer Percell testified that Mrozowski "kept trying to put his hands in his pockets" as he attempted to walk away a second time.¹ Officer Percell told Mrozowski to take his hands out of his pockets. When he failed to comply, Officer Percell grabbed Mrozowski’s right arm, and the second officer walked up and said "Who you talking to, boy?" Mrozowski then resisted and tried to pull his arm away so that he could leave, but was prevented from doing so. Officer Percell testified that he held Mrozowski’s arm because, based upon his police training, it was possible that Mrozowski could have had some kind of weapon in his pocket.

Officer Percell then told Mrozowski that he was going to "frisk" him for weapons. Mrozowski declined and told the officer that he did not have permission to search his pockets. When Mrozowski attempted to pull his arm away from the officer, he was then handcuffed by law enforcement due to "resisting arrest and pulling away." As he was being handcuffed, he spit in an officer’s face.

After Mrozowski was handcuffed, the officers frisked the outside of his pockets and felt what "appeared to be a pipe that is commonly used to ingest drugs." At that time, the officer reached into Mrozowski’s pocket and found the pipe. Mrozowski was then told that he was under arrest and, as he struggled with the officers on the way to the patrol vehicle, one of the officers’ body cameras was jostled off of its mount, fell to the ground and broke. Once they arrived at the jail, Mrozowski threatened the officers with bodily harm and resisted being brought into the jail by kicking and headbutting the officers.

Mrozowski filed a motion to suppress the evidence of the pipe, his behavior during and after the arrest, and the broken body camera, arguing that the State improperly escalated a first-tier encounter to a third-tier encounter without the required probable cause to do so. The trial court granted the motion.

The State argues that the trial court erred by granting the motion to suppress because the officer had a "reasonable articulable suspicion" to conduct a second-tier detention and because Mrozowski "unlawfully resisted said search which resulted in his arrest." We are unpersuaded.

[2] Georgia law identifies 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." (Citation omitted.) Walker v. State, 314 Ga. App. 67, 69-70 (1), 722 S.E.2d 887 (2012). See Terry v. Ohio, 392 U. S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

[3–5] In a first-tier encounter, an officer "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." (Punctuation and footnote omitted.) Ewumi v. State, 315 Ga. App. 656, 658 (1), 727 S.E.2d 257 (2012). It is well-settled that a "citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter." (Punctuation and footnote omitted.) Id. at 658 (1), 727 S.E.2d 257. Indeed, a citizen "may refuse to answer and ignore the request and go on his way if he chooses, for this does not amount to any type of restraint." (Punctuation and footnote omitted.) Id. at 658 (1), 727 S.E.2d 257. See Durden v. State, 320 Ga. App. 218, 220 (1), 739 S.E.2d 676 (2013) ("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 omitted).

[6] Here, the encounter between the officer and Mrozowski was a first-tier encounter in which the officer stopped him and asked for his name and identification. See Akins v. State, 266 Ga. App. 214, 216 (1), 596 S.E.2d 719 (2004). However, Mrozowski’s movement was restrained when he attempted to walk away from Officer Percell’s questioning, and his exit was blocked by a second officer standing in his path. Faced with this situation, the trial court was authorized to conclude that "a reasonable person would feel compelled to conclude that he or she was not free to [walk] away and to leave." Smith, 288 Ga. App. 87, 88, 653 S.E.2d 510 (2007). See In the Interest of J. B., 314 Ga. App. 678, 680-681 (1), 725 S.E.2d 810 (2012) (defendant’s encounter with police officer escalated into a second-tier encounter when defendant's attempt to leave the encounter was prevented by officers blocking his exit down the path); Black v. State, 281 Ga. App. 40, 46 (1), 635 S.E.2d 568 (2006) (defendant was entitled to walk away and refuse to answer officer’s questions during a first-tier encounter and such behavior gave officer no grounds to grab him or arrest him for obstruction of justice). Thus, the moment Mrozowski was prevented from leaving Officer Percell’s presence, his encounter with the police amounted to a detention which, in order to be lawful, must be supported by reasonable suspicion. See State v. Lanes, 287 Ga. App. 311, 313, 651 S.E.2d 456 (2007).

[7, 8] "Reasonable suspicion...