dissenting.
The evidence in this case does not support the trial court’s denial of Collier’s motion to suppress. I therefore dissent.
First, the majority accepts the state’s argument that the officer did not stop Collier at all and takes the position that Collier “voluntarily stopped his vehicle in a driveway.” In fact, the officer testified that shortly before he arrived at the domestic relations call,
the call was upgraded to a more severe situation. In order to prevent other vehicles from I guess coming in contact or *609conflicting with our investigation as far as what was going on at that particular situation, I activated my blue lights so it was plainly clear that my vehicle was in the street and we were conducting an investigation. So any vehicle approaching our area would know to stop in that particular area.
The evidence showed that Collier did just as the officer intended — when he approached the officer’s car with its blue lights flashing, he put his vehicle in reverse and pulled into a driveway that was not part of the ongoing investigation. The officer testified that when he saw Collier backing, he pursued him in his patrol car and made contact with him while he was still seated in his vehicle. After asking for his driver’s license and registration, the officer “advised [Collier] of why [he] stopped him for improper backing.”
This was not merely a consensual first-tier encounter involving no coercion or detention. See O’Neal v. State, 273 Ga. App. 688, 690 (616 SE2d 479) (2005). 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. ... So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.
State v. Harris, 261 Ga. App. 119, 121 (581 SE2d 736) (2003) (citation omitted). While utilizing his flashing blue lights, the officer pursued Collier and approached him almost immediately after Collier’s car had pulled into the driveway. He then told Collier that he was being stopped for a traffic offense. No reasonable person, after having been pursued by a uniformed officer in a patrol car with blue lights flashing and then told by the officer that he was being stopped for a traffic violation, would have nonetheless felt free to disregard the police and go about his business. This holds true even if the officer’s car was not physically blocking the driveway.
Accordingly, the encounter between the officer and Collier was a second-tier investigatory stop. The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of Collier’s vehicle here. United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981). “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” Id. (citations and footnote omitted).
*610The majority concludes that the stop was authorized because Collier was backing up in the wrong lane of traffic. However, the evidence as a whole does not show that Collier was backing up in the wrong lane of traffic, and any such finding is clearly erroneous. The officer testified that Collier “was driving down the right side of the road, however he was going the wrong way [because he was] backing up the other way.” The officer also testified that Collier was driving in the lane closest to the mailbox, with the mailbox on his right-hand side. The state concedes that Collier was not on the wrong side of the road when he backed up, and suggests that when the trial court stated that Collier was going the wrong way, it meant that he was going against what would be the normal flow of traffic, if there had been any traffic.2 After considering all of the officer’s testimony, it is clear that he meant that Collier was going the wrong way because he was merely backing up instead of moving forward, not that he was traveling in the wrong lane. Merely backing up does not violate OCGA § 40-6-240 (a).
The majority also concludes that the stop was justified because “Collier may have backed up as much as 50 yards before pulling into a driveway.” In fact, the only mention of “50 yards” is by Collier’s counsel when he is questioning the officer and describes the approximate distance between where the officer initially parked his patrol car and where Collier pulled into the driveway. As the state concedes, there is no evidence as to how far Collier backed before he pulled into a driveway. We could speculate that it is just as likely that Collier backed no more than ten feet as it is that he backed fifty yards, but that would be equally inappropriate. The evidence does not show, and it cannot reasonably be construed to show, that Collier backed for a distance that was unsafe.
The record before us does not show that the officer’s stop of Collier was justified because of improper backing. See State v. Jones, 214 Ga. App. 593, 594 (448 SE2d 496) (1994) (officer’s stop of appellee not justified where officer did not observe him commit any crime before the stop). OCGA § 40-6-240 (a) provides that “[a] driver shall not back a vehicle unless such movement can be made with safety and without interfering with other traffic.” There is no evidence that Collier’s maneuver was made contrary to the safety of others or that it interfered with other traffic. The officer’s mistaken belief that Collier had violated that Code provision was not reasonable. See Dixon v. State, 271 Ga. App. 199, 201-202 (609 SE2d 148) (2005) *611(question to be decided is whether officer’s motives and actions at the time and under all the circumstances, including the nature of the officer’s mistake, if any, were reasonable and not arbitrary and harassing). Although the officer did testify that Collier’s actions were consistent with the actions of someone who did not want to make contact with a police officer, his “hunch” that Collier backed up to avoid police detection of wrongdoing is an insufficient basis for an investigatory stop. See State v. Jones, supra (officer’s “hunch” that lawful U-turn was made to escape police detection of wrongdoing did not justify traffic stop); see also Raulerson v. State, 223 Ga. App. 556, 557 (2) (479 SE2d 386) (1996) (trooper’s conclusion that defendant turned on dirt road to escape police detection of wrongdoing is insufficient basis for investigative stop). And the majority’s inclusion of Collier’s probationary status — a fact not before the trial court when it heard the motion to suppress — cannot legitimately support this theory now.
Finally, the majority equates this situation to a motorist attempting to avoid a police roadblock. Such acts have been held to constitute reasonable suspicion of criminal activity, even if the evasive action was not illegal. See Dale v. State, 267 Ga. App. 897, 899 (600 SE2d 763) (2004). Cf. Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993) (officer’s intuition that defendant was trying to avoid roadblock was insufficient to justify investigative stop of vehicle). But the two situations are distinguishable. A lawful roadblock stops for some legitimate purpose all vehicles traveling in a particular direction. See generally Dale, supra at 898-899. The record here shows that the officer stopped only Collier. Moreover, the officer activated his blue lights to keep people away from his investigation, an investigation that did not involve Collier. Backing up was a legitimate response to the officer’s activation of his emergency equipment and, considering the totality of the circumstances, did not constitute a proper basis for an investigatory stop. United States v. Cortez, supra.
The state failed to meet its burden of presenting evidence demonstrating a reasonable suspicion of criminal activity. See Duke v. State, 257 Ga. App. 609, 610 (571 SE2d 414) (2002). That evidence may have existed, but it was not presented to the trial court. This court cannot legitimately base its decision on sheer speculation about the distance Collier backed, facts pertaining to Collier’s probationary status not before the trial court or the arresting officer’s “unparticularized suspicion or hunch.” See id.
I am authorized to state that Chief Judge Ruffin and Judge Barnes join in this dissent.
*612Decided November 29, 2006 Larry D. Wolfe, for appellant. Gwendolyn Keyes Fleming, District Attorney, Leonora Grant, Assistant District Attorney, for appellee.The officer testified that there were no pedestrians or other vehicles, except for an unspecified number of police cars, on the street when Collier performed the maneuver he observed.