FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, 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
March 29, 2017
In the Court of Appeals of Georgia
A17A0461. DOUGHERTY v. THE STATE.
BARNES, Presiding Judge.
Following a bench trial, the trial court found Preston Wayne Dougherty guilty
of two counts of misdemeanor obstruction of a law enforcement officer based on
Dougherty’s resistance to two officers who were attempting to arrest him. Dougherty
now appeals, contending that there was insufficient evidence that he obstructed the
officers while they were acting in the lawful discharge of their official duties. Upon
our review, we affirm.
Construed in the light most favorable to the verdict, see Bray v. State, 330 Ga.
App. 768, 771 (1) (768 SE2d 285) (2015), the evidence showed that at approximately
8:00 p.m. on March 19, 2016, a patrol officer with the Floyd County Police
Department was turning onto Chulio Road when he was dispatched to an area of that
road where someone was reportedly attempting to break into vehicles. It was still
light outside when the officer received the call from the 911 dispatcher. As the officer
drove by the area of the road where he had been dispatched, he passed by a man, later
identified as Dougherty, walking down the side of the road. The officer saw no one
else in the area.
The officer decided to speak with Dougherty in light of the reported attempted
car break-ins in that area of the road. The officer turned around his patrol car,
activated his blue lights for safety reasons due to the traffic conditions, and parked
his car on the road. After exiting his patrol car, the officer approached Dougherty,
who continued walking down the opposite side of the road, and said, “Howdy, hey
how are you doing sir?” According to the officer, Dougherty acted “completely
weird” and “was not making sense” when the officer approached him and tried to
speak with him, causing the officer to be concerned for his own and Dougherty’s
safety while standing on the road.
After briefly speaking with and observing Dougherty, the officer asked
Dougherty to take his hands out of his pockets and then to come over in front of his
patrol car away from traffic. The officer testified that Dougherty took his hands out
of his pockets, but then kept “patting down his pockets[,] trying to continue to put his
hands back in his pockets.” The officer also testified that Dougherty would say
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“okay” in response to the officer’s requests for him to move out of the lane of traffic
and come stand in front of the patrol car, but then would start walking down the road
away from the officer. Dougherty also insisted that he was “fine,” but then asked the
officer if he could take him home.
After initially continuing to walk down the road, Dougherty followed the
officer over to the front of the patrol car and stood there with his hands out of his
pockets. Dougherty told the officer his name, but when the officer inquired where he
lived, Dougherty responded “right up here” and could not give an address. The officer
asked Dougherty for identification and tried to continue questioning Dougherty, but
Dougherty was unresponsive to many of his questions, tried to put his hands back in
his pockets, and again tried to walk away from the officer while saying “okay.”
The officer had Dougherty lean against the bar on the front of his patrol car and
conducted a pat-down search for weapons, and Dougherty consented to a search of
his pockets. When the officer searched one of Dougherty’s pockets, he felt a needle.
When the officer felt the needle, Dougherty took one of his hands off of the police car
and swung it in the air while saying “I’m sorry.” The officer attempted to place
Dougherty’s arm behind his back to handcuff and arrest him, but Dougherty tried to
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pull his arm away from the officer, and a struggle ensued during which the officer
attempted to take Dougherty to the ground and subdue him.
The officer repeatedly ordered Dougherty to stop resisting and to put his hands
behind his back so that he could be handcuffed, but Dougherty did not follow the
commands even while saying “okay” several more times. The officer tried to
physically subdue Dougherty, but Dougherty continued struggling with the officer
and, according to the officer, did not appear to feel any pain. During the struggle, the
officer’s body camera fell off, and Dougherty grabbed it and held it tightly in his
hand.
A second patrol officer arrived on the scene and deployed his taser on
Dougherty when he would not stop resisting the officers, but Dougherty continued
to disobey both officers’ commands to put his hands behind his back so that he could
be handcuffed. The officers ultimately were able to subdue Dougherty and handcuff
him, but only after deploying the taser a second time.
Dougherty was indicted on two charges of felony obstruction of a law
enforcement officer and one count of battery. Dougherty elected to be tried in a bench
trial, where the patrol officer who first responded to the scene (the “first officer”)
4
testified to his encounter with Dougherty as summarized above. The second patrol
officer who arrived on the scene did not testify.
The State also introduced into evidence and played for the trial court an audio-
video recording from a camera mounted in the front of the first officer’s patrol car
(the “dash-cam recording”). The first officer’s initial interaction with Dougherty on
the road was captured only on the audio portion of the dash-cam recording, and some
of Dougherty’s verbal responses to the officer are difficult to hear on it. The police
encounter with Dougherty from the point when he stepped in front of the first
officer’s patrol car until he was subdued and arrested was captured on both the video
and audio portion of the dash-cam recording.
Following the first officer’s testimony and the playing of the dash-cam
recording, the State rested. Dougherty elected not to testify or call any defense
witnesses.
After hearing the first officer’s testimony and reviewing the dash-cam
recording, the trial court acquitted Dougherty of felony obstruction and battery, but
found him guilty of two counts of the lesser included offense of misdemeanor
obstruction of a law enforcement officer. The trial court found that when the first
officer initially approached Dougherty on the road, it was a first-tier consensual
5
encounter for Fourth Amendment purposes, but that the officer escalated the
encounter to a second-tier investigatory detention “very fast.” The trial court further
found that “at that point there was clearly something wrong with Mr. Dougherty” and
that, consequently, the first officer had reasonable suspicion, and was acting in the
lawful discharge of his official duties, in initially detaining Dougherty for “at least,
if nothing else, [being] a pedestrian under the influence of something.” According to
the trial court, “[a] person that’s walking down Chulio Road in that kind of shape is
either going to get [him]self killed or someone else.” The trial court further found that
Dougherty unlawfully resisted both officers’ subsequent efforts to handcuff and arrest
him after his initial detention, “given his state of inebriation of whatever it was he
was under the influence of,” and that his resistance to his arrest supported his
convictions for misdemeanor obstruction.
Dougherty now appeals, contending that there was insufficient evidence to
convict him of misdemeanor obstruction because the officers were not acting in the
lawful discharge of their official duties, thereby entitling him to resist his arrest. We
disagree.
On appeal from a bench trial resulting in a criminal conviction, we
view all evidence in the light most favorable to the trial court’s verdict,
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and the defendant no longer enjoys the presumption of innocence. We
do not re-weigh testimony, determine witness credibility, or address
assertions of conflicting evidence; our role is to determine whether the
evidence presented is sufficient for a rational trier of fact to find guilt
beyond a reasonable doubt.
(Citation and punctuation omitted.) Bray, 330 Ga. App. at 771-772 (1).1
Mindful of the standard of review, we turn to Georgia law pertaining to
misdemeanor obstruction. OCGA § 16-10-24 (a) provides in relevant part that “a
person who knowingly and willfully obstructs or hinders any law enforcement officer
in the lawful discharge of his official duties is guilty of a misdemeanor.” Proof that
an officer was acting in the lawful discharge of his official duties thus is an essential
statutory element of the offense. West v. State, 296 Ga. App. 58, 60 (2) (673 SE2d
558) (2009); Overand v. State, 240 Ga. App. 682, 682-683 (1) (523 SE2d 610)
(1999).
1
We conduct a de novo review of factual findings when the controlling facts
are clearly and completely discernible from a video recording. Capellan v. State, 316
Ga. App. 467, 467 (729 SE2d 602) (2012). But where, as here, some of the
controlling facts are not fully captured in the recording, we defer to the trial court’s
findings regarding those facts. See State v. Chulpayev, 296 Ga. 764, 771 (2), n. 5 (770
SE2d 808) (2015); State v. Hall, 339 Ga. App. 237, 244-245 (793 SE2d 522) (2016).
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Whether an officer was acting in the lawful discharge of his official duties
often turns on the type of encounter between the officer and a citizen. Under the
Fourth Amendment to the United States Constitution, there are three tiers of police-
citizen encounters:
First-tier encounters are consensual communications between police and
citizens and involve no coercion or detention; second-tier encounters,
which must be supported by reasonable suspicion, are brief stops done
for the purpose of investigating suspected criminal activity; and
third-tier encounters are actual or de facto arrests and, accordingly, must
be supported by probable cause.
(Citation and footnote omitted.) Thomas v. State, 301 Ga. App. 198, 200 (1) (687
SE2d 203) (2009). “A police officer is not discharging his lawful duty when he arrests
an individual without reasonable or probable cause,”or when he conducts a brief
investigatory detention of an individual “without a particularized and objective basis
for suspecting criminal activity.” (Citations and punctuation omitted.) In the Interest
of J. T., 239 Ga. App. 756, 759 (521 SE2d 862) (1999). See Curtis v. State, 285 Ga.
App. 298, 300 (1) (a) (645 SE2d 705) (2007); Wynn v. State, 236 Ga. App. 98, 99 (2)
(511 SE2d 201) (1999).
8
In his brief on appeal, Dougherty argues that the first officer immediately
escalated their encounter to a second-tier investigatory detention when he activated
his blue lights, exited the patrol car, and required Dougherty to remove his hands
from his pockets and stand in front of the patrol car. According to Dougherty, the
officer lacked reasonable suspicion to detain him at that point because the officer was
relying on a vague 911 dispatch that someone had been trying to break into cars in the
area, and Dougherty at most exhibited “furtive” behavior when initially approached
by the officer. Dougherty further maintains that because the first officer initially
detained him without reasonable suspicion of any criminal activity, the officer was
not acting in the lawful discharge of his official duties from that point onward,
rendering unlawful the officers’ subsequent efforts to handcuff and arrest him.
Consequently, Dougherty contends that he was entitled to resist his detention “from
the beginning” and to continue resisting throughout the police encounter, including
when both officers sought to handcuff and arrest him. We are unpersuaded.
As an initial matter, we conclude that there was evidence supporting the trial
court’s determination that there was some interaction between Dougherty and the first
officer on the road, albeit very brief, before the officer escalated the encounter to a
second-tier investigatory detention. It is well-established that “‘a seizure does not
9
occur simply because a police officer approaches an individual and asks a few
questions.’” State v. Westmoreland, 204 Ga. App. 312, 313 (1) (418 SE2d 822)
(1992), quoting Florida v. Bostick, 501 U.S. 429, 434 (II) (111 SCt 2382, 115 LE2d
389) (1991). Rather, an encounter escalates from a first-tier consensual interaction to
a second-tier investigatory detention only when the individual is “seized” by the
officer, i.e., “‘[o]nly when the officer, by means of physical force or show of
authority, has in some way restrained the liberty’” of the individual. State v. Walker,
295 Ga. 888, 890 (764 SE2d 804) (2014), quoting Terry v. Ohio, 392 U.S. 1, 19 (II),
n. 16 (88 SCt 1868, 20 LE2d 889) (1968).
In the present case, the audio captured on the dash-cam recording reflects that
the first officer spoke briefly with Dougherty before having Dougherty remove his
hands from his pockets and stand in front of the patrol car. Thus, there was evidence
of a short gap in time between when the officer initially observed and interacted with
Dougherty and when the officer escalated the encounter to a second-tier investigatory
detention. See Durden v. State, 320 Ga. App. 218, 220 (1) (739 SE2d 676) (2013)
(encounter escalated to second-tier investigatory detention when suspect stopped and
removed hands from his pockets at the officer’s command); Walker v. State, 299 Ga.
App. 788, 790 (1) (683 SE2d 867) (2009) (encounter became second-tier
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investigatory detention when suspect came back and sat on pavement at the officer’s
direction).2 The operative question, therefore, is whether there was at least some
evidence that the officer had reasonable suspicion to quickly escalate the encounter
to an investigatory detention based on his brief, initial observation and interaction
with Dougherty on the roadway. Construing the evidence in the light most favorable
to the trial court’s ruling, we answer that question in the affirmative.
To meet the reasonable suspicion standard for conducting a second-tier
investigatory detention, “the police must have, under the totality of the circumstances,
a particularized and objective basis for suspecting [that a] person is involved in
criminal activity.” (Citation and punctuation omitted.) Walker v. State, 314 Ga. App.
67, 70 (1) (722 SE2d 887) (2012). “This suspicion need not meet the standard of
probable cause, but must be more than mere caprice or a hunch or an inclination. A
2
Before approaching Dougherty on foot and speaking with him, the first officer
parked his patrol car in the opposite lane of traffic with the blue lights activated. The
officer testified that he activated the blue lights “for safety reasons” because of the
“heavy traffic,” and that Dougherty continued walking down the road at that point.
In light of the officer’s testimony, the trial court was entitled to find that the
activation of the blue lights on the patrol car did not, standing alone, escalate the
interaction to a second-tier investigatory detention. See Cash v. State, 337 Ga. App.
511, 514-515 (2) (786 SE2d 560) (2016); Darwicki v. State, 291 Ga. App. 239, 240
(1) (661 SE2d 859) (2008).
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founded suspicion is all that is necessary, some basis from which the court can
determine that the detention was not arbitrary or harassing.” (Citation and
punctuation omitted.) Gonzalez v. State, 334 Ga. App. 706, 711 (2) (780 SE2d 383)
(2015). “[T]he determination of reasonable suspicion must be based on commonsense
judgments and inferences about human behavior” rather than on scientific certainty.
Illinois v. Wardlow, 528 U.S. 119, 125 (120 SCt 673, 145 LE2d 570) (2000).
Pretermitting whether the first officer had reasonable suspicion based on the
information supplied by the 911 dispatcher about the attempted car break-ins in the
area, we conclude that there was evidence that the officer had reasonable suspicion,
based on his initial observation and interaction with Dougherty, to believe that
Dougherty was a pedestrian under the influence and to detain him on that ground. The
trial court found that Dougherty “clearly” was “a pedestrian under the influence of
something” and in a “state of inebriation” while walking down the road, and the dash-
cam recording supports the trial court’s finding. The trial court’s finding was further
supported by the first officer’s testimony that when he first approached and tried to
speak with Dougherty as he was walking down the heavily traveled road at 8 p.m.,
Dougherty was acting “completely weird” and “was not making sense.”
12
“A person who is under the influence of intoxicating liquor or any drug to a
degree which renders him a hazard shall not walk or be upon any roadway or the
shoulder of any roadway.” OCGA § 40-6-95. In light of the officer’s testimony
combined with the dash-cam recording, there was evidence from which the trial court
could find that the officer, upon first interacting with Dougherty, developed
reasonable suspicion to believe that Dougherty was a pedestrian under the influence
and to quickly escalate the encounter to a second-tier detention on that basis. See
OCGA § 40-6-95; Mack v. State, 305 Ga. App. 697, 698 (1) (700 SE2d 685) (2010)
(officer had reasonable suspicion to believe that pedestrian who was about to walk
down the street was under the influence of alcohol and to detain him on that ground);
Zeeman v. State, 249 Ga. App. 625, 627-628 (1) (549 SE2d 442) (2001) (even if
officers lacked reasonable suspicion to detain the defendant for involvement in a drug
transaction, officers could detain him on the basis that he appeared to be under the
influence and was about to drive).
While the officer did not specifically testify that one of his reasons for
detaining Dougherty was his apparent intoxicated state while walking down the road,
an “officer’s subjective motivation is irrelevant” in determining whether reasonable
suspicion exists. (Citation, punctuation, and emphasis omitted.) Brigham City v.
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Stuart, 547 U.S. 398, 404 (II) (126 SCt 1943, 164 LE2d 650) (2006). Rather, the
detention is lawful “as long as the circumstances, viewed objectively,” support a
finding of reasonable suspicion, as was true in this case, based on Dougherty’s
demeanor, words, and conduct as described in the officer’s testimony and as shown
on the dash-cam recording. Id.
For these reasons, the trial court was entitled to find that the first officer had
reasonable suspicion and was acting in the lawful discharge of his official duties in
escalating the encounter to a second-tier investigatory detention. Dougherty’s
argument that an illegal initial detention rendered the rest of his detention unlawful
and justified his continued resistance therefore is unpersuasive, and we affirm his
convictions for misdemeanor obstruction.
Judgment affirmed. McMillian and Mercier, JJ., concur.
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Dougherty v. the State
Court: Court of Appeals of Georgia
Date filed: 2017-03-29
Citations: 341 Ga. App. 120, 799 S.E.2d 257
Copy CitationsCombined Opinion