The State v. Allen

FOURTH DIVISION
DOYLE, P. J.,
MILLER and DILLARD, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/

February 23, 2015

In the Court of Appeals of Georgia
A14A1837. THE STATE v. ALLEN.

DILLARD, Judge.

Jennifer Leigh Allen was arrested and charged, via accusation, with possession

of methamphetamine. Allen filed a motion to suppress, challenging the lawfulness of

the investigatory detention, during which she consented to the search of her purse

where the methamphetamine was discovered. The trial court granted Allen’s motion,

and the State now appeals, arguing that the court erred in finding that the arresting

law-enforcement officers had no reasonable, articulable suspicion to justify the

detention. For the reasons set forth infra, we affirm.

Construing the evidence to uphold the trial court’s findings and judgment,1 the

record shows that around 9:00 p.m. on July 25, 2012, a Paulding County sheriff’s

1
See, e.g., Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011).
deputy was patrolling a local shopping center parking lot in his marked vehicle when

he noticed a red pickup truck, which he believed looked suspicious. Consequently,

as he continued driving through the parking lot, the deputy ran the truck’s tag number

through the Georgia Crime Information Center (“GCIC”) database, and, in doing so,

learned that the truck’s owner, William Couch, was wanted for a parole violation. The

deputy then turned his vehicle around, at which point he saw the truck now parked

and a male and a female, who appeared to have just exited the vehicle, walking

toward a Mexican restaurant in the shopping center. Believing the male to be Couch,

the deputy used his patrol vehicle’s PA system to request that both individuals stop.

The couple, however, ignored this request and continued into the restaurant.

After parking his vehicle and following the couple into the restaurant, the

deputy saw the female, Allen, sitting alone in a booth, and one of the restaurant’s

employees informed the deputy that the male had exited out the back of the building.

The deputy then approached Allen and asked her where Couch had gone. Allen

replied that he was possibly in the restroom, but she was unsure of his whereabouts.

But after checking the bathroom and determining that Couch was not there, the

deputy ordered Allen to step outside for further questioning, and she complied. By

this time, a second law-enforcement officer arrived on the scene, and during the

2
ensuing questioning, Allen acknowledged that Couch had mentioned that there was

a warrant out for his arrest. The second officer then told Allen to call some of

Couch’s friends to inquire as to his whereabouts and ultimately asked Allen if he

could search her purse. Allen consented, and during the search, the officer found a

clear wrapper containing methamphetamine.

Allen was later charged, via accusation, with possession of methamphetamine.2

Shortly thereafter, she filed a motion to suppress the evidence garnered as a result of

her detention and subsequent consent to the search of her purse. Specifically, she

argued that the officers had no reasonable, articulable suspicion to justify her

detention, and, therefore, her consent to the search of her purse was invalid.

Accordingly, she concluded that the methamphetamine found by the officers in her

purse as a result of that search should be suppressed as “fruit of the poisonous tree.”3

2
See OCGA § 16-13-30 (a).
3
We note that “[t]he ‘fruit of the poisonous tree’ doctrine provides that any
evidence acquired by the police through exploitation of information obtained by
means of unlawful conduct is inadmissible in a criminal prosecution.” Lawson v.
State, 299 Ga. App. 865, 868 (1) (684 SE2d 1) (2009); see also Brown v. Illinois, 422
U.S. 590, 603-04 (III) (95 SCt 2254, 45 LE2d 416) (1975) (providing test to
determine whether evidence must be excluded under doctrine).

3
 During the hearing on Allen’s motion to suppress, the deputy who first saw

Couch’s truck and then followed Couch and Allen into the restaurant testified that

when he initially approached Allen, he did not suspect that she had committed any

crime, but nevertheless wanted to question her regarding Couch. The deputy then

added that he believed Allen was untruthful when she said Couch may have gone to

the bathroom, and thus, she impeded his investigation. In addition, the second officer

who arrived on the scene (and ultimately searched Allen’s purse) testified that Allen

was not free to leave the encounter and that detaining someone with information was

lawful even if that person was not suspected of engaging in criminal activity. After

the hearing concluded, the trial court took the matter under advisement and, one day

later, issued an order granting Allen’s motion to suppress. This appeal by the State

follows.

At the outset, we note that on a motion to suppress, “the burden of proving the

search was lawful is on the [S]tate.”4 And 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

4
Walker v. State, 299 Ga. App. 788, 788 (683 SE2d 867) (2009); accord Davis
v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996).

4
witnesses are adopted unless they are clearly erroneous.”5 Additionally, because the

trial court is the trier of fact, “its findings are analogous to a jury verdict and will not

be disturbed if any evidence supports them.”6 That said, we owe no deference to the

way in which the court below “resolved questions of law.”7 With these guiding

principles in mind, we turn now to the State’s contention on appeal.

In its sole enumeration of error, the State maintains that the trial court erred in

granting Allen’s motion to suppress, arguing that the law-enforcement officers had

reasonable, articulable suspicion to justify detaining Allen and, ultimately, seeking

consent to search her purse. We disagree.

The Fourth Amendment to the United States Constitution provides, inter alia,

that “[t]he right of the people to be secure in their persons, houses, papers, and

5
Hammont, 309 Ga. App. at 396 (punctuation omitted); accord Brown v. State,
293 Ga. 787, 803 (3) (b) (750 SE2d 148) (2013).
6
Hammont, 309 Ga. App. at 396 (punctuation omitted); Brown, 293 Ga. at 803
(3) (b).
7
Brandt v. State, 314 Ga. App. 343, 343 (723 SE2d 733) (2012); cf. Edenfield
v. State, 293 Ga. 370, 374 (2) (744 SE2d 738) (2013) (noting that in reviewing the
denial of a motion to suppress a statement, appellate courts owe no deference to the
way in which the trial court resolved questions of law).

5
effects, against unreasonable searches and seizures, shall not be violated. . . .”8 In

construing this amendment, the Supreme Court of the United States has set

forth—including most notably in Terry v. Ohio9—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.”10

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.”11 Thus, a citizen’s ability to “walk away

8
U.S. Const. amend. IV.
9
392 U.S. 1, 21 (III) (88 SCt 1868, 20 LE2d 889) (1968).
10
Minor v. State, 298 Ga. App. 391, 394 (1) (a) (680 SE2d 459) (2009)
(punctuation omitted); accord State v. Walker, 295 Ga. 888, 889-890 (764 SE2d 804)
(2014).
11
Minor, 298 Ga. App. at 394 (1) (a) (punctuation omitted); accord Jones v.
State, 291 Ga. 35, 37 (1) (727 SE2d 456) (2012) (noting that a first-tier encounter
may become a seizure when “in view of all of the circumstances surrounding the
incident, a reasonable person would have believed that he was not free to leave”
(punctuation omitted)).

6
from or otherwise avoid a police officer is the touchstone of a first-tier encounter.”12

But here, the deputy who observed Allen and Couch walking toward the restaurant

first requested that they stop, then approached Allen as she sat in a booth and, shortly

thereafter, directed her to accompany him outside. Given these circumstances, no

reasonable person in Allen’s position would have felt free to end the encounter, and,

in fact, the second officer to arrive on the scene explicitly testified at the hearing that

Allen was not free to leave. Accordingly, the officers’ stop of Allen “was a

second-tier, investigative detention that required the [officers] to have a particularized

and objective basis for suspecting that [Allen] was or was about to be involved in

criminal activity.”13

As the Supreme Court of the United States emphasized in Terry,14 a law-

enforcement 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

12
Thomas v. State, 301 Ga. App. 198, 201 (1) (687 SE2d 203) (2009)
(punctuation omitted); accord Jones, 291 Ga. at 37 (1).
13
Thomas, 301 Ga. App. at 201-02 (1); see also Walker v. State, 299 Ga. App.
788, 790 (683 SE2d 867) (2009).
14
See Terry, 392 U.S. at 21 (III).

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suspecting the persons are involved in criminal activity.”15 In doing so, the officer’s

action must be justified by “specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant that intrusion, and the officer

must have some basis from which the court can determine that the detention was

neither arbitrary nor harassing.”16 Furthermore, while a mere hunch is not sufficient

to render an investigative detention reasonable, “law enforcement officers are

permitted to draw upon their own experience and training in assessing the

circumstances in which they find themselves.”17

In the case sub judice, the deputy who first saw Couch’s pickup truck ran its

tags through the GCIC database and determined that he was wanted for a parole

violation. Recounting this fact, the State argues that the deputy was, therefore,

15
Black v. State, 281 Ga. App. 40, 43 (1) (635 SE2d 568) (2006) (punctuation
omitted); see Ramirez v. State, 279 Ga. 569, 571-72 (1) (619 SE2d 668) (2005)
(noting that officer had particularized and objective basis for suspecting that
defendant was engaged in criminal activity and, thus, holding that the stop was
justified).
16
Black, 281 Ga. App. at 43 (1) (punctuation omitted); see also State v. Harris,
261 Ga. App. 119, 122 (581 SE2d 736) (2003).
17
Culpepper v. State, 312 Ga. App. 115, 119 (717 SE2d 698) (2011); see also
Esposito v. State, 293 Ga. App. 573, 576 (667 SE2d 425) (2008).

8
authorized to initiate a traffic stop.18 However, by the time the deputy learned that the

truck’s male owner, Couch, was wanted, the truck was already stopped and Couch

and Allen were walking toward the restaurant. At that point, although the deputy

certainly possessed a reasonable, articulable suspicion to detain Couch, he had no

basis whatsoever for believing that Allen was either committing, or was about to

commit, a crime.19 Indeed, at the motion-to-suppress hearing, the deputy admitted that

when he first approached Allen, as she sat in the restaurant booth, he had no suspicion

that she had committed, or was about to commit, a crime. And while the deputy added

that he believed Allen was untruthful when she told him that she was unsure as to

where Couch had gone, the trial court, in granting Allen’s motion to suppress,

18
See Humphreys v. State, 304 Ga. App. 365, 367 (696 SE2d 400) (2010)
(holding that “the particularized and objective basis for the initial stop was the
information from GCIC—in this case, that the male owner of the registered vehicle
he was operating had a suspended driver’s license”); see also Ramirez v. State, 279
Ga. at 571-72 (1).
19
Cf. Brown v. State, 301 Ga. App. 82, 85 (686 SE2d 793) (2009) (holding that
none of defendant’s described activities, i.e., walking faster away from the police,
ignoring the police officer calling his name, or being present in an area known for its
propensity for criminal activity, is a crime in and of itself, nor are they enough to
make an objective determination that defendant was about to be engaged in criminal
activity); Teal v. State, 291 Ga. App. 488, 489 (662 SE2d 268) (2008) (holding that
officer lacked reasonable basis for concluding that passenger was armed or was
otherwise a threat to his personal safety after another officer had stopped car to serve
warrant on driver, and, thus, Terry pat-down for weapons was unlawful).

9
obviously found that her response did not provide an objective basis for a reasonable

suspicion that she was obstructing the deputy in the lawful discharge of his official

duties.20 Thus, construed most favorably to uphold the trial court’s judgment, we

conclude that the court did not err in finding that the officers’ detention of Allen was

unreasonable.21 Moreover, because Allen’s consent to the search of her purse was the

product of an illegal detention, it was not valid.22 Accordingly, the trial court did not

err in granting Allen’s motion to suppress.

Judgment affirmed. Doyle, P. J., and Miller, J., concur.

20
See Beckom v. State, 286 Ga. App. 38, 41-42 (2) (648 SE2d 656) (2007)
(holding that defendant initially refusing to answer the door for officers and denying
knowledge of missing boy’s whereabouts, even though it was later determined that
boy was one of the attendees of defendant’s son’s party, did not constitute
obstruction); cf. Duke v. State, 205 Ga. App. 689, 690 (423 SE2d 427) (1992)
(holding that willfully lying to officers attempting to execute a warrant by asserting
that arrestee was not on the premises constituted obstruction).
21
See State v. Mincher, 313 Ga. App. 875, 877-78 (723 SE2d 300) (2012)
(holding that trial court was authorized to find that defendant’s right turn was not
illegal and thus officer had no reasonable articulable suspicion to justify traffic stop).
22
See Walker v. State, 299 Ga. App. 788, 791 (2) (683 SE2d 867) (2009)
(holding that defendant’s consent to search of his person was invalid when it was the
product of an illegal detention); Black, 281 Ga. App. at 47-48 (1) (holding that
consent to search of bedroom only a few moments after being unlawfully detained
was invalid).

10