State v. Flores

Blackburn, Presiding Judge,

dissenting.

The arresting officers in this case had absolutely no particularized information supporting a reasonable belief that the defendants were engaged in criminal activity at the time they were stopped. Accordingly, I must respectfully dissent.

This case involves a Terry3 stop in which an officer conducts a brief investigative stop of a citizen. In this type of stop, “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.” (Punctuation omitted.) Lewis v. State.4, “[T]he officer must possess more than a subjective, unparticularized suspicion or hunch, but rather a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.” (Punctuation omitted.) Id. at 561 (1).

In State v. Mallard,5 members of a drug task force were preparing to execute a search warrant on the residence of a suspected drug dealer when a car containing two unidentified men left the residence. The task force called an officer to inform her of the departure, and the officer stopped the car about a half-mile from the residence to determine if the drug déaler was in the vehicle. The officer determined that the dealer was not in the car but arrested the two occupants of the car when they were found to be in possession of marijuana. The two defendants moved to suppress the evidence, and the trial court granted the motion. We affirmed the trial court’s grant of the defendants’ motion to suppress, finding that “there was no basis *395to believe that either [defendant was] involved in criminal activity at the time of the stop.” Id. at 360.

In explaining our reasoning in Mallard, we contrasted our decision in the case with the decision of our Supreme Court in Garmon v. State6 in which a stop was found to be justified. The Garmon court held that “the investigative stop was justified under Terry because there wére some objective manifestations that the occupant in the vehicle leaving the search location was engaged in criminal activity.” Mallard, supra at 361. The Court noted that a number of factors supported a reasonable belief that persons at the residence might be involved in criminal activity, including: the existence of a search warrant for the residence; the fact that “the driver and his companion were leaving a residence suspected as a location for dealing in controlled substances and an illegal sports betting operation, which was operating at that time since it was a big football weekend”; the fact “that the truck was owned by a known methamphetamine dealer”; the fact “that the officers had overheard telephone conversations discussing gambling and a drug deal”; and the fact “that the officers had independent information which supported a reasonable belief that the men in the truck were involved in the operation.” Id. The Court concluded that “[t]his totality of the circumstances provided an articulable suspicion to justify the stop.” Id.

By contrast, in the case before us, while there was a basis for believing that a particular residence was the center of criminal activity, there was no particularized and objective basis for suspecting that these particular defendants, Flores and Renteria, were involved in that activity at the time they were stopped. The officers had no search warrant for the apartment, or for either Renteria’s vehicle or Flores’s vehicle. The officers had no independent information which supported a reasonable belief that Renteria and Flores were involved in a drug operation at the time they were actually stopped. In fact, as in Mallard, the officers who made the stops had no specific information about the occupants of the cars since “the decision was made [that] anybody leaving was going to be stopped based on the fact that there were narcotics in the apartment.” This latter factor alone indicates that the officers were acting on a subjective, unparticularized suspicion or hunch that any persons leaving the apartment were involved in illegal activities. Such subjective, unparticularized suspicion was insufficient to justify the stops of Renteria and Flores. Because “the police had no specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct by these defendants and thus could not meet the requirements of Terry,” id. at 365, *396the trial court did not err in granting defendants’ motions to suppress.

Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

Lewis v. State, 233 Ga. App. 560 (1) (504 SE2d 732) (1998).

State v. Mallard, 246 Ga. App. 357 (541 SE2d 46) (2000).

Garmon v. State, 271 Ga. 673 (524 SE2d 211) (1999).