Peace Officers Association of Georgia Training Legal Issues of Peace Officer/Citizen Contacts March 13 , 2014 Presented

1. Peace Officers Association of Georgia Training Legal Issues of Peace Officer/Citizen Contacts March 13, 2014 Presented by: J. Dale Mann A Retired Person manndale53@yahoo.com 478-957-5849

2. Pre-Test The Supreme Court of the United States (SCOTUS) has delineated at least three tiers of police citizen contact. They are: 1________________________________ 2________________________________ 3________________________________

3. Pre-Test The Georgia Supreme Court in 1998 suggested that another kind of police citizen contact would be the roadblock or roadcheck. What are the requirements under Georgia caselaw for these to meet the Constitutional requirements as articulated in LaFontaine v. State, 269 Ga. 251, 253 (497 SE2d 367) (1998)? 1________________________________ 2________________________________ 3________________________________ 4________________________________ 5________________________________

4. Pre-Test However, even the five factors in question #2 do not completely satisfy SCOTUS’s final requirement for a roadblock to satisfy the Constitutional requirements articulated by them in Indianapolis v. Edmond - 531 U.S. 32 (2000). That final requirement is that the decision to conduct the roadblock has to be made: _________________________________________________________________________________________________________________________________________________________________________________________________________________.

5. Pre-Test Assuming that you have followed all the requirements of LaFountaine and Edmond, which roadblocks listed below would be a violation of the 4th Amendment: License checkpoint Sobriety checkpoint Narcotics checkpoint Terrorist checkpoint (National emergency) Dangerous criminal who is fleeing a specific route

6. Pre-Test Some police citizen contacts require probable cause while others require reasonable articulable suspicion. In fact, some are just a voluntary contact. Which level of knowledge would justify a roadblock? _____________________________________

7. Supreme Court holdings sculpt out, at least theoretically, 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. Under the first tier, a police officer may approach an individual and ask a few questions without triggering Fourth Amendment scrutiny. The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen.

8. In this level, Tier 2, 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. The third tier is an actual or de facto arrest which requires probable cause and involves restraint of one's liberty. ..Lewis v. State, 233 Ga. App. 560, 560 (504 S.E.2d 732) (1998).

9. Other police – citizen encounters? • When a driver brings his vehicle to a stop as a result of a request or show of authority by a law enforcement officer, the officer effectively seizes the vehicle and “‘everyone in the vehicle,’ the driver and all passengers.” Arizona v. Johnson, 555 U.S. 323, 327 (129 SCt 781, 172 LE2d 694) (2009). Such a seizure ordinarily is unreasonable, and hence unconstitutional, absent individualized suspicion. • Then, there are those times when the police and citizens have contact that falls outside the realm of Tier 1, 2 or 3.

10. Other police – citizen encounters? • The United States Supreme Court has recognized, however, a narrow exception to the individualized suspicion requirement for vehicle stops made pursuant to a “plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown v. Texas, 443 U.S. 47, 51 (99 SCt 2637, 61 LE2d 357) (1979)

11. Other police – citizen encounters? • Under this checkpoint exception, the reasonableness of the initial stop depends not on individualized suspicion that the driver has committed a traffic violation or other wrongdoing, but instead on the balance between the public interest served by the checkpoint program and the right of individuals to personal security free from arbitrary and oppressive interference by government Officials… • Applying this balancing test, the Supreme Court approved checkpoint programs designed to intercept illegal immigrants near the border,… to keep unlicensed drivers and unsafe vehicles off [the road]. Typically the standard is probable cause to believe that the individual seized has committed a crime, but more limited seizures may be based on a lesser showing of articulable suspicion, based on specific, objective facts, that a person has been, is, or is about to be engaged in criminal activity.

12. Other police – citizen encounters? • …and to remove drunk drivers from behind the wheel…In each case, the Court distinguished the checkpoint program at issue from a regime of suspicionless stops by roving patrols in the pursuit of the same violations. The Court emphasized two basic threats to liberty that could result if all law enforcement officers were given the authority to make suspicionless vehicle stops as they moved around on patrol in the field….

13. Other police – citizen encounters? • First, the Court focused on the risk of arbitrary stops of citizens as they travel, noting the “grave danger that such unreviewable discretion would be abused by some officers in the field.” • Second, the Court recognized the risk of oppressive interference with the rights of law-abiding citizens, examining both the objective intrusion on their privacy and right to free passage and the subjective intrusion on motorists’ sense of personal security.

14. Indianapolis v. Edmond - 531 U.S. 32 (2000) • In Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990), and United States v. Martinez-Fuerte, 428 U. S. 543 (1976), we held that brief, suspicionless seizures at highway checkpoints for the purposes of combating drunk driving and intercepting illegal immigrants were constitutional. We now consider the constitutionality of a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics. • …In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.

15. Indianapolis v. Edmond - 531 U.S. 32 (2000) • …In Sitz, we evaluated the constitutionality of a Michigan highway sobriety checkpoint program. The Sitzcheckpoint involved brief, suspicionless stops of motorists so that police officers could detect signs of intoxication and remove impaired drivers from the road. 496 U. S., at 447–448. Motorists who exhibited signs of intoxication were diverted for a license and registration check and, if warranted, further sobriety tests. Id., at 447. This checkpoint program was clearly aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways, and there was an obvious connection between the imperative of highway safety and the law enforcement practice at issue.

16. Indianapolis v. Edmond - 531 U.S. 32 (2000) • The gravity of the drunk driving problem and the magnitude of the State’s interest in getting drunk drivers off the road weighed heavily in our determination that the program was constitutional. See id., at 451. • In Prouse, we invalidated a discretionary, suspicionless stop for a spot check of a motorist’s driver’s license and vehicle registration. The officer’s conduct in that case was unconstitutional primarily on account of his exercise of “standardless and unconstrained discretion.” 440 U. S., at 661.

17. Indianapolis v. Edmond - 531 U.S. 32 (2000) • We nonetheless acknowledged the States’ “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed.” Id., at 658. • Accordingly, we suggested that “[q]uestioning of all oncoming traffic at roadblock-type stops” would be a lawful means of serving this interest in highway safety. Id., at 663. We further indicated in Prousethat we considered the purposes of such a hypothetical roadblock to be distinct from a general purpose of investigating crime.

18. Indianapolis v. Edmond - 531 U.S. 32 (2000) • …Not only does the common thread of highway safety thus run through Sitzand Prouse, but Prouseitself reveals a difference in the Fourth Amendment significance of highway safety interests and the general interest in crime control. • It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment. See, e. g., Sitz, supra, at 450. • As petitioners concede, the Indianapolis checkpoint program unquestionably has the primary purpose of interdicting illegal narcotics.

19. Indianapolis v. Edmond - 531 U.S. 32 (2000) • We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. • We suggested in Prousethat we would not credit the “general interest in crime control” as justification for a regime of suspicionless stops. 440 U. S., at 659, n. 18. Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety.

20. Indianapolis v. Edmond - 531 U.S. 32 (2000) • Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life. • Of course, there are circumstances that may justify a law enforcement checkpoint where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control. For example, as the Court of Appeals noted, the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route.

21. Indianapolis v. Edmond - 531 U.S. 32 (2000) • It goes without saying that our holding today does nothing to alter the constitutional status of the sobriety and border checkpoints that we approved in Sitzand Martinez-Fuerte, or of the type of traffic checkpoint that we suggested would be lawful in Prouse. The constitutionality of such checkpoint programs still depends on a balancing of the competing interests at stake and the effectiveness of the program.

22. Indianapolis v. Edmond - 531 U.S. 32 (2000) • Finally, we caution that the purpose inquiry in this context is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene. Cf. Whren, supra. • Because the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment. The judgment of the Court of Appeals is, accordingly, affirmed. • It is so ordered.

23. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 • Following a jury trial, Jonathon Dryer was convicted of possession of more than one ounce of marijuana. Dryer now appeals the denial of his motion to suppress evidence, arguing that the trial court erred in ruling that his interaction with the police officer who ultimately arrested him began as a first-tier encounter that did not require reasonable, articulable suspicion of criminal activity. For the reasons set forth infra, we agree. Accordingly, we reverse the denial of Dryer’s motion to suppress and his conviction.

24. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 • Viewed in the light most favorable to the jury’s verdict,1 the record shows that around 11:00 p.m. on April 4, 2010, a Douglasville police officer was patrolling the parking lot of a local country club and golf course when he noticed a red Mercury Sable that was backed into a parking space near the lower part of the lot. And because the country club had been closed for at least two hours and there were no other vehicles in the parking lot except for a dump truck left by a construction crew, the officer drove toward the Sable in his patrol car to investigate.

25. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 • As the officer approached, the Sable pulled out of the parking space and began driving toward the parking lot’s exit, which entailed driving past the officer. At that point, however, the officer activated his patrol car’s blue lights, and the Sable immediately stopped. The officer then exited his patrol car, approached the Sable, and asked the vehicle’s sole occupant, thereafter identified as Dryer, what he was doing in the country club parking lot. Dryer responded that he had played golf earlier and that he had just used the restroom located in a building near the pool at that end of the parking lot. But during this conversation, the officer smelled the odor of burnt marijuana and

26. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 noticed that Dryer appeared nervous. Consequently, the officer asked Dryer for consent to search his vehicle. And when Dryer refused, the officer requested that a K-9 unit be dispatched to the scene. While awaiting the arrival of the K-9 unit, Dryer admitted to the officer that he had smoked some marijuana and that he still had some marijuana in his vehicle. Approximately 20 minutes later, the K-9 unit arrived, and during a free-air search, the dog alerted to the presence of illegal drugs. Thereafter, the officers searched Dryer’s vehicle and found eight plastic bags containing small amounts of marijuana,

27. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 nine empty bags containing only marijuana residue, and 22 bags containing marijuana seeds and stems. Ultimately, the amount of marijuana recovered weighed nearly 2.5 ounces. Dryer was thereafter arrested and charged, via accusation, with one count of possession of marijuana with intent to distribute.2 Prior to trial, he filed a motion to suppress the drug evidence found during the search of his vehicle. The trial court held a hearing, during which only the officer who initiated the encounter with Dryer testified. And at the conclusion of the hearing, the trial court denied Dryer’s motion, finding that the officer’s initial contact with Dryer was a first-tier encounter that lawfully escalated into a

28. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 second-tier encounter after the officer smelled the burnt marijuana. Subsequently, Dryer was tried, and the jury found him guilty of the lesser included charge of possession of more than one ounce of marijuana. At the outset, we note that 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 “will not be disturbed if any evidence supports them.” However, the trial court’s application of law to undisputed facts is reviewed de novo. With these guiding principles in mind, we turn now to Dryer’s sole enumeration of error.

29. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 • The Supreme Court of the United States has set forth—most notably in Terry v. Ohio—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 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.”

30. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 • It is well established that in a first-tier encounter, police officers “may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.” In fact, “[t]here is no threshold requirement and indeed the individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint and is not encompassed by the Fourth Amendment.”Essentially, as long as a reasonable person would feel free to disregard the police and go on about his business, “the encounter is consensual and no reasonable suspicion is required.”

31. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 • In the case sub judice, the State contends that the police officer’s initial interaction with Dryer was a consensual first-tier encounter, which required no reasonable, articulable suspicion of criminal activity. • We disagree. • When the officer first observed Dryer’s vehicle it was parked, but a few moments later, as Dryer pulled out of the parking space and began driving toward the parking lot exit, the officer activated his patrol vehicle’s blue lights. Not surprisingly, Dryer immediately stopped.

32. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 • And indeed, while testifying during the motion-to-suppress hearing, the officer characterized his own actions as initiating “a stop” when Dryer’s vehicle attempted to drive past him. Thus, not only did the officer create the impression that Dryer could not leave, he clearly was not going to allow Dryer to do so. • Given these circumstances, the officer’s initial interaction with Dryer was not a first-tier encounter but, rather, immediately began as a second-tier encounter requiring reasonable, articulable suspicion of criminal activity.

33. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 • Nevertheless, the State, citing Collier v. State,14 argues that a police officer, whose patrol vehicle’s blue lights have been activated, may approach a defendant’s stopped vehicle, question the defendant, and that such conduct may still constitute a first-tier rather than a second-tier encounter. However, contrary to the State’s argument, the facts in Collier are distinguishable from those at issue here. In Collier, the arresting officer activated his vehicle’s blue lights while en route to investigate an alleged domestic violence incident. After he arrived on the scene and parked, the officer saw the defendant’s vehicle—which had no relation to the domestic violence call—back up in

34. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 • the wrong lane of traffic, pull into a driveway nearly 50 yards down the street, and park. At that point, the officer approached the defendant’s vehicle and began the questioning that resulted in the discovery of illegal drugs. Based on these specific facts, we held that the officer did not “stop” the defendant but, rather, that the defendant “voluntarily stopped his vehicle in a driveway and that the police officer then approached his vehicle, with no indication that the officer prevented his departure other than by speaking to him.” Moreover, and importantly, we also held in Collier that the defendant’s act of backing up his car in the wrong lane of traffic was evidence of a traffic violation that provided the officer with reasonable,

35. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 • articulable suspicion to justify a stop of the vehicle. Indeed, we noted that the officer even told the defendant that the improper backing prompted his questioning. • In contrast, here, Dryer did not come upon a scene where an officer was already parked with his vehicle’s lights illuminated. Instead, after the officer first observed Dryer’s vehicle parked in the lot, he decided to approach and investigate. Dryer then attempted to leave but immediately stopped when the officer activated his patrol vehicle’s blue lights.

36. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 • Given these facts, any argument that Dryer would have, nevertheless, felt free to ignore the police officer and continue driving away strains credulity. Thus, the trial court erred in ruling that the police officer’s initial contact with Dryer was a first-tier encounter not requiring reasonable, articulable suspicion of criminal activity. • Having concluded that this was a second-tier rather than a first-tier encounter, we must now determine whether the police officer had “a particularized and objective basis for suspecting [Dryer] of criminal activity.” • We find that he did not.

37. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 • There is no evidence in the record that Dryer committed any traffic violation warranting a stop. And while Dryer was parked in the country club parking lot after the club had closed, there was no evidence presented that this was a high-crime area or, more specifically, that any crimes had recently been committed at the club. Additionally, there is no evidence in the record indicating that the officer specifically believed that Dryer was trespassing, but only generally that he did not think there was any reason for Dryer to be there. However, an officer’s subjective feeling that a person is “acting in a suspicious way does not amount to a particularized and objective basis for suspecting him of criminal activity.”

38. A13A0875. DRYER v. THE STATE, ___ Ga.App.___, August 21, 2013 • Thus, the trial court erred in denying Dryer’s motion to suppress evidence. Accordingly, we reverse the denial of Dryer’s motion and his conviction. • Judgment reversed. Andrews, P. J., and McMillian, J., concur.

39. BACALLAO v. THE STATE A10A1743-- January 06, 2011 • Construed in favor of the trial court's judgment, the record shows that Georgia State Patrol Post 32 conducted a roadblock in Oconee County for the purpose of checking driver's licenses, seat belts, driver impairment, and vehicle fitness.   Trooper Charles Parker testified that he was one of the screening officers working the roadblock;  that he observed Bacallao driving a white van;  and that the van turned right headed toward the checkpoint then made an immediate left into the second entrance of the gas station parking lot that was just south of the checkpoint.  

40. BACALLAO v. THE STATE A10A1743-- January 06, 2011 • Parker testified that he approached Bacallao as she exited her vehicle to question her because he did not know if she was going to the gas station or attempting to avoid the roadblock.   Parker advised Bacallao that they were conducting a license check and asked to see Baccallao's license.   Bacallao gave Parker her license, and as they talked, he detected the odor of alcohol on her breath.   Parker asked Bacallao how much alcohol she had consumed that day, and she told him that she had three glasses of wine, the last of which she had drunk recently in her home. • Parker asked Bacallao to take a horizontal gaze nystagmus test, during which she displayed six of six clues.  

41. BACALLAO v. THE STATE A10A1743-- January 06, 2011 • Parker then asked her to perform a breath test, and the breath test results were positive for alcohol.   Because Bacallao had recently consumed a glass of wine, Parker waited 20 more minutes then administered the breath test again, and the second test also was positive for alcohol.   Parker then arrested Bacallao for driving under the influence.   Parker testified that he read Georgia's implied consent warning to Baccallao, then walked Bacallao to the alcohol testing trailer to administer another breath test, utilizing the Intoxilyzer 5000.   Bacallao gave two breath samples, and the lowest test result indicated a blood alcohol level of .106.

42. BACALLAO v. THE STATE A10A1743-- January 06, 2011 • Bacallao testified that she lived within half mile of the checkpoint and that she had gone to the gas station to buy some milk, not to avoid the roadblock.   Additionally, Bacallao testified that she answered Parker's questions because he was a police officer, and she thought that she was required to do so.   In its order denying the motion to suppress, the trial court concluded that Parker's initial interaction with Bacallao was a “first-tier” encounter that did not involve coercion or detention and that Parker had a reasonable and articulable suspicion that Bacallao had committed a crime after talking with her and was justified in detaining Bacallao further.

43. BACALLAO v. THE STATE A10A1743-- January 06, 2011 • In her single enumeration of error, Bacallao argues that the trial court erred when it denied her motion to suppress because Parker's detention of her was illegal.   Specifically, Bacallao maintains that there was neither probable cause nor articulable suspicion to support the stop. • Baccallao's position that the stop required articulable suspicion or probable cause presumes that the initial interaction between she and Parker was a second- or third-tier encounter.   However, the evidence supports the trial court's determination that it was a first-tier encounter.

44. BACALLAO v. THE STATE A10A1743-- January 06, 2011 • In support of her argument, Bacallao relies on Jorgensen v. State.  In that case, we reversed a DUI conviction where the officer stopped the defendant, who was driving normally, based solely on his intuition that the defendant was avoiding a roadblock when he turned into an apartment complex before reaching the roadblock. The officer pursued the vehicle into the apartment complex, parked behind the defendant, and told him that he was not free to leave. Jorgensen is inapposite because there is no evidence in the instant case that Bacallao was initially detained or was told that she was not free to leave.   Rather, Parker approached and questioned Bacallao as she exited her parked car

45. BACALLAO v. THE STATE A10A1743-- January 06, 2011 • It is well established that an officer's approach to a stopped vehicle and inquiry into the situation is not a “stop” or “seizure” but rather clearly falls within the realm of the first type of police-citizen encounter․  Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual;  ask to examine the individual's identification;  and request consent to search-as long as the police do not convey a message that compliance with their requests is required.

46. BACALLAO v. THE STATE A10A1743-- January 06, 2011 • Accordingly, Parker was authorized to approach Bacallao and ask to examine her driver's license.   Thus, the trial court's conclusion that Parker and Bacallao's interaction was a first-tier encounter that did not require articulable suspicion was supported by the evidence.Furthermore, once Parker smelled alcohol on Bacallao's breath, he had the required articulable suspicion to investigate further. Therefore, we affirm the trial court's denial of Bacallao's motion to suppress.

47. S12G1287. BROWN v. THE STATE___ Ga ___, October 21, 2013 • Appellant Douglas Wayne Brown was charged with driving under the influence and other crimes after he was stopped and later arrested at a traffic safety checkpoint, or roadblock, in Cobb County. The trial court granted Appellant’s motion to suppress his statements and other evidence resulting from the stop, ruling that the checkpoint violated the Fourth Amendment. The Court of Appeals reversed that ruling in a 4-3 decision.

48. S12G1287. BROWN v. THE STATE___ Ga ___, October 21, 2013 • We granted Appellant’s petition for certiorari, posing the question: “Did the Court of Appeals employ the correct legal analysis in assessing whether the decision to implement the roadblock was made by supervisory personnel rather than field officers, for a legitimate primary purpose?”

49. S12G1287. BROWN v. THE STATE___ Ga ___, October 21, 2013 • As explained below, we reject Appellant’s initial argument that the checkpoint at which he was stopped was unconstitutional because the police sergeant who authorized it was not a “programmatic-level executive.” Appellant draws this argument from Court of Appeals cases that have improperly conflated the “supervisory personnel” requirement for implementing a specific checkpoint,

50. S12G1287. BROWN v. THE STATE___ Ga ___, October 21, 2013 • and the distinct requirement that a law enforcement agency’s checkpoint program have an appropriate primary purpose other than the general interest in crime control, which requires review at the “programmatic level” and may involve evidence relating to agency policy and practice and policy-makers other than the supervisor who decided to implement the particular checkpoint at issue…