dissenting.
Because the officer’s interaction with Hernandez-Espino did not rise to the level of a second-tier encounter and Hernandez-Espino voluntarily consented to the search of his person, I would affirm the trial court’s denial of the motion to suppress.
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.2
“A citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter.”3 A seizure or second-tier encounter “only occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave.”4 “[T]o initiate [a] second-tier encounter[, an officer] must make [himself] clear, as by giving an order or command.”5 Factors to consider when determining if words or conduct are considered a command include whether (1) the presence of several officers was threatening; (2) any weapon was displayed; (3) any *857physical touching occurred; or (4) any language or tone of voice indicated that the defendant was compelled to comply with the police requests.6 “In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.”7
In State v. Dukes,8 involving a charge of obstruction, we affirmed the grant of a motion to suppress because the police encounter with Dukes was a first-tier encounter, not a second-tier encounter as argued by the State. The facts set forth in that opinion show that after receiving a report of drug dealing, officers approached Dukes and others and asked Dukes what he was doing.9 In response, Dukes said that he was “ ‘just sitting around.’ ” The officer then asked Dukes if he had identification, and Dukes responded it was in his vehicle. The officer asked Dukes if he had any drugs on him and if he would mind emptying his pockets onto the picnic table. Dukes placed the items on the table and then ran from the officers.10 We held that this interaction was a first-tier encounter because the officers did not seize Dukes, but instead, they simply approached and questioned him without effectuating a seizure.11
The officer here was not threatening nor did he use a show of force, touch Hernandez-Espino, or employ language or a tone of voice that would have made Hernandez-Espino believe he was compelled to comply with the officer’s requests. The officer testified:
I made contact with him. I asked him if he lived here. He stated that he didn’t. I asked him what he was doing here. He said he was visiting a friend. I’m just, conversation, oh, yeah, really, who are you visiting. He pointed to the bottom apartment on the right, which I’m familiar with the residents of that building or residents of that apartment. And I just knew that he wasn’t telling the truth, so I said, man, just give me the drugs you just bought. He was like, I don’t have any drugs. And I said do you mind if I search you for guns or drugs. [12] And he said — he said yeah, go ahead, kind of like yeah, yes.*858Decided November 19, 2013. Stephen M. Reba, for appellant. Lee Darragh, District Attorney, Jennifer C. Bagwell, Assistant District Attorney, for appellee.
As described by the officer — and believed by the trial court — the officer was simply engaged in a conversation with HernandezEspino.
The majority focuses on the officer’s later testimony that he “didn’t ask him if he bought drugs. I told him to give me the drugs he just bought.” This latter testimony occurred during questioning by the State in an effort to prove Hernandez-Espino understood English, not to establish whether the officer intended the statement as a command or request. As the officer previously testified, he was having a conversation with Hernandez-Espino and, as part of that conversation, told Hernandez-Espino to give him the drugs. This is no different than the officer in Dukes asking Dukes to empty his pockets.
Moreover, an officer’s use of the term “told” instead of “ask” during his or her in-court testimony should not be singularly determinative of whether an encounter is first- or second-tier. This is overly technical and requires officers to carefully consider their choice of words in an encounter that might take mere seconds or minutes. Instead, it is for the trial court to determine the credibility of the witnesses and evaluate whether the language used by an officer in conjunction with his presentation and tone of voice conveyed an intention to detain or merely converse with an individual.
The trial court heard the officer testify about the officer’s initial contact with Hernandez-Espino and determined that the officer conducted a first-tier stop. We should not second-guess that determination.13
I am authorized to state that Judge Boggs and Judge Branch join in this dissent.
(Punctuation omitted.) Carter a State, 319 Ga. App. 624, 625-626 (737 SE2d 724) (2013).
(Punctuation omitted.) Thomas v. State, 322 Ga. App. 734, 737 (2) (b) (746 SE2d 216) (2013).
(Punctuation omitted.) Carter, 319 Ga. App. at 625.
Thomas, 322 Ga. App. at 737 (2) (b).
See State v. Dukes, 279 Ga. App. 247, 249 (630 SE2d 847) (2006).
Id.
Id.
See id. at 247-248.
See id. at 248.
See id. at 249.
Arequest to search made during the course of a first-tier encounter does not escalate the contact to a second-tier detention. See Carter, 319 Ga. App. at 626.
First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.
Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013) (punctuation omitted).