STRICKLAND
v.
The STATE.
No. A04A0526.
Court of Appeals of Georgia.
February 11, 2004.*712 Clifton, Sanders & Smith, Joshua D. Huckaby, Toccoa, for appellant.
Michael H. Crawford, District Attorney, Deborah Wilbanks, Assistant District Attorney, for appellee.
ELDRIDGE, Judge.
A Stephens County jury found Keldon Strickland guilty of trafficking in cocaine, misdemeanor possession of marijuana, obstruction of an officer, and operating a vehicle without a valid license tag. He appeals and claims the trial court erred in denying his motion to suppress because the drugs at issue were found pursuant to a stop of his vehicle at an illegal roadblock. As will be discussed below, we agree with Strickland that the roadblock was unconstitutional but *713 find that the discovery of the drugs was sufficiently attenuated from any illegal stop so as render the drugs admissible. Accordingly, we affirm Strickland's conviction.
A homicide occurred in Toccoa at a residence located in the Pond and Franklin Streets area; the victim had been shot, and his body was found on January 26, 2002. Officers from the Toccoa Police Department enlisted the aid of T. Attaway from the Georgia Bureau of Investigation to investigate. Subsequently, they experienced little success in identifying the perpetrator. A week after the murder, the officers decided to canvass the intersection of Pond and Franklin Streets at the same time of night that it had been reported gunshots were heard the week before, i.e., sometime between 10:00 p.m. and 2:00 a.m. Agent Attaway testified at the suppression hearing that the officers' efforts included,
stop[ping] people walking on the roads and stop[ping] people traveling by right in that general area to see if somebody might have saw something, or heard a gunshot, or something of that nature. And that's what we were there for. Was everybody that came through the Pond Street area and the Franklin Street area either walking or driving in a car we were asking them did you hear anything, were you in this area last week.
The only goal for stopping individuals "was to attempt to identify additional leads that would might identify who's responsible for the death of [the victim]." The intersection of Pond Street and Franklin Street where cars were stopped was clearly marked by patrol cars with flashing blue lights. The location was directly across the street from the murder scene. The five or six Toccoa police officers manning the roadblock were in uniform.
At approximately 10:50 p.m., appellant Strickland drove up to the area. It is undisputed that Strickland stopped his vehicle in the street before reaching the roadblock. An officer recognized his Cadillac and informed the others of his presence in the area. Apparently, Strickland had known the victim, and the officers had been wanting to talk to him about the case; there at the scene, Toccoa Police Lieutenant P. Moricz had a large picture of Strickland in order to help identify him on the chance he might be seen that night and could be questioned. Moricz testified at the hearing that Strickland was a "suspect in the murder case" and "we motioned him to pull over." Strickland pulled into a parking lot on Franklin Street.
Attaway and Moricz approached Strickland's car, and Attaway asked for identification. Strickland immediately became agitated and belligerent, yelling that "you got my driver's license." Attaway testified that, "Mr. Strickland, about the time he gets out of the car, he starts to get out of the car on his own." When Strickland saw his photograph in Moricz's hand, he "continues to get louder, and louder, and louder, and it's almost like he's agitated because this officer has his picture." Attaway testified that Strickland "was putting me on the defense because he's not talking like, you got my he's hollering at me. ... [H]e's getting real belligerent. ... And he's trying to intimidate me and to back me up to start with." Apparently, Strickland was wearing "cargo" pants with numerous pockets that appeared to be bulging. The officers became concerned for their safety because of Strickland's belligerence, his status as a suspect, the fact that "he's right across the street from where this death occurred," and the fact that the perpetrator was still at large. Moricz performed a pat-down "for officers' safety." Thereafter, Moricz "just asked him if he would mind removing everything from his pockets." It is undisputed that Strickland was not under arrest or physically restrained by either officer at the time Moricz made his request. Attaway testified that, at that time, Strickland "pushes Paul [Moricz], and shoves him, and takes off running"; he stated that Strickland,
kind of goes, kind of twisted and pushing, and he starts again, and he kind of pushes at me, and then he shoves Paul [Moricz], and takes off running. He kind of pushes him back and takes off running. ... And I'm [(Attaway)] hollering, and he's running, he's running. ... And about the time I'm around he's really getting further away from me. And I'm telling them, you *714 know, he's running, he's running. ... And about the time I get to the insurance company I fallI don't fall, but my knee comes out, popped my knee out.
Moricz testified that "at that time I asked him to remove the items from the pocket, asked him if he would do it. And at that time he pushed Officer Attaway, and pushed me away, and then started running down the road"; he stated that Strickland "pushed me off to the right like that with his elbow and pushed Attaway away, and then he bolted around the car and took off running." Strickland did not testify at the motion hearing or at trial, and the evidence is uncontroverted concerning his physical contact with the officers.
The foot chase concluded when Toccoa Police Supervisor B. Pearson apprehended Strickland; when Attaway arrived on the scene, "they were kind of in a ditch where a culvert was." Pearson "made the comment when he was getting [Strickland] up, make sure you look in that culvert because he was doing something with his hands and shoving some items." Recovered from the culvert were 78.19 grams of cocaine. Several loose rocks of cocaine were also recovered from Strickland's pants pockets, as was a small plastic bag of marijuana. Further investigation showed that Strickland's vehicle carried an expired drive-out tag. Held:
Strickland claims error solely in the trial court's denial of his motion to suppress. He contends the Toccoa Police Department's roadblock did not serve a legitimate primary purpose, and thus, the stop of his vehicle was illegal. We agree with the thrust of Strickland's argument.
It is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment.[1] The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.[2] In that regard, the United States Supreme Court has held,
We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. We suggested in [Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979),] that we would not credit the "general interest in crime control" as justification for a regime of suspicionless stops. Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety.[3]
The roadblock at issue in this case furthered neither of these legitimate goals. Motorists were stopped for a criminal investigation unrelated to road safety. We do not take lightly the importance of a murder investigation, but neither can we excuse the suspicionless seizure of our citizens in a perhaps futile attempt (as in this case) to develop a lead. And we do not find such intrusion to be "minimal." While Toccoa is one of our smaller cities, what is constitutional in Toccoa is constitutional in the metropolitan areas of this State, where crime and crime scenes are exponentially more frequent. As was noted by the supreme court of one of our sister states while deliberating this issue in relation to the City of Chicago, an exception for informational, investigative roadblocks, such as the one at issue here, has the potential to make roadblocks an everyday occurrence.[4] As a consequence,
[i]f we were to rest the case at this high level of generality, there would be little check on the ability of the authorities to construct roadblocks for almost *715 any conceivable law enforcement purpose. Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life.[5]
Accordingly, unless and until the higher courts direct otherwise,[6] we decline to suspend "the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes."[7] Further, none of the exigent circumstances that may justify a generalized "crime control" roadblock are present here.[8]
But we do not find the constitutionality of the roadblock dispositive of this case. Indeed, the evidence appears uncontroverted that Strickland never reached the roadblock. Instead, he stopped his car in the street seemingly to avoid the block and only pulled into a parking lot when directed to do so by Lieutenant Moricz so that officers could question him about the victim's deathas apparently they had been seeking to do for some time. Was this independent Terry[9] stop proper? At the suppression hearing, no reasonable suspicion of wrongdoing was articulated as a basis for Strickland's detention; while Strickland was described as a "suspect" in the victim's murder, no rationale was put forward for such designation, and Strickland was wanted only for questioning. Further, there is no evidence the stop was in anyway voluntary in light of Strickland's reluctance to approach the roadblock and belligerence after he was stopped. Accordingly, albeit not for the reasons articulated by brief, we must agree that the officers' suspicionless stop of Strickland's vehicle was illegal.
Our analysis does not end here, however, because the drugs at issue were not found in Strickland's car or on his person during the course of the improper Terry stop. They were found after Strickland shoved the officers, fled from them, and discarded the drugs in a culvert during his subsequent apprehension. And this Court has recognized on numerous occasions that,
evidence is not impermissibly tainted simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which the objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.[10]
The law is clear that a police officer is not discharging his lawful duty when he performs a Terry detention on a citizen without a particularized and objective basis for suspecting criminal activity.[11] Accordingly, during the course of such improper detention, a citizen is free to ignore requests and/or to walk away, and not only will no charge of obstruction lie, any contraband discovered pursuant to the citizen's lawful performance of these acts will in all probability be suppressed.[12]*716 In this case, Strickland properly stopped his car as he was directed to do by the Toccoa officers.[13] Thereafter, he was improperly detained by those officers. He had an absolute right to refuse Lieutenant Moricz's request to empty his pockets; he had an absolute right to walk away. Had he done so and the officers then arrested and searched him, "the fruits of any search likely would have been suppressed."[14]
That, however, is not what Strickland did. The evidence is uncontroverted that although neither under arrest nor physically restrained in any mannerStrickland physically shoved both officers. This gratuitous act was a battery.[15] Moreover, under the plain language of the battery statute, the aggravated offense of battery against a police officer provides protection for law enforcement officers who are simply attempting in good faith to "[carry] out official duties."[16] While we vigorously condemn any illegal detention of our citizens, we will not find that an improper Terry investigative stop justifies the commission of a battery against the officers conducting the stop. "Challenges to even unconstitutional police [actions] must be made in the courts, not on the street."[17]
Strickland's gratuitous act of physically shoving the Toccoa officers was illegal; the fact that he was unlawfully stopped did not render such act legal.[18] "[T]o hold otherwise would encourage persons to resist the police and create potentially violent and dangerous confrontations,"[19] and "a contrary rule would virtually immunize a defendant from prosecution for all crimes he might commit that have a sufficient causal connection to the police misconduct."[20] For this reason, a number of jurisdictions, including our own, have recognized that,
notwithstanding a strong causal connection in fact between [an improper Terry stop] and a defendant's response, if the defendant's response is itself a new, distinct crime, then the police constitutionally may arrest the defendant for that crime.[21]
*717 The offense of battery committed on the Toccoa police officers provided not just reasonable suspicion to further detain, but probable cause to arrest.[22] So, Strickland's subsequent apprehension was proper on either basis. The fact that Strickland was not arrested for the battery of the officers is irrelevant, since a detention supported by probable cause/reasonable suspicion is not rendered illegal when a defendant is not cited for the offense for which he was detained.[23] Moreover, it matters not that the officers did not articulate a proper basis for apprehending Strickland; "[t]he officer's subjective belief that he lacked authority to detain ... does not control where the facts objectively show the officer had such authority. Because we decide whether reasonable suspicion justifies a detention based on all the objective facts, we are not limited by the detaining officer's subjective opinions."[24] The same objective standard holds true in determining the existence of probable cause to arrest.[25] In this case, the objective facts of record show that a battery on the officers provided an independent basis for Strickland's further detention, rendering his apprehension lawful. Thus, the drugs Strickland threw down were admissible since the battery and subsequent flight, even if triggered by the improper stop, provided an independent basis for the admission of evidence uncovered during such lawful apprehension; the drugs are admissible on these grounds even though they would have been suppressed if uncovered during the unconstitutional stop.[26]
"A trial court's ruling on a motion to suppress will be upheld if it is right for any reason."[27] For the reasons articulated above, we find the denial of Strickland's motion to suppress was correct and conclude that his claims to the contrary are without merit.
Judgment affirmed.
RUFFIN, P.J., and ADAMS, J., concur.
NOTES
[1] Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990).
[2] Chandler v. Miller, 520 U.S. 305, 308, 117 S. Ct. 1295, 137 L. Ed. 2d 513 (1997).
[3] (Citations omitted.) City of Indianapolis v. Edmond, 531 U.S. 32, 41-42, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).
[4] Illinois v. Lidster, 202 Ill. 2d 1, 9, 269 Ill. Dec. 1, 779 N.E.2d 855 (2002), cert. granted, 538 U.S. 1012, 123 S. Ct. 1928, 155 L. Ed. 2d 847 (2003).
[5] City of Indianapolis v. Edmond, supra at 42, 121 S. Ct. 447.
[6] See Illinois v. Lidster, supra, 123 S. Ct. 1928 (cert. granted to consider whether investigative roadblock to gather information about a week-old hit and run incident passes constitutional muster).
[7] City of Indianapolis v. Edmond, supra at 44, 121 S. Ct. 447.
[8] See id. (refusing to reduce legitimate roadblock purposes to a rigid set of categories and recognizing circumstances that may justify a law enforcement checkpoint "where the primary purpose would otherwise, but for some emergency, relate to ordinary crime control," such as "to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route").
[9] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
[10] (Footnote omitted.) State v. Stilley, 261 Ga. App. 868, 870, 584 S.E.2d 9 (2003); accord, e.g., Eichelberger v. State, 252 Ga.App. 801, 557 S.E.2d 439 (2001); Patel v. State, 240 Ga.App. 178, 179, 522 S.E.2d 760 (1999); Davis v. State, 235 Ga.App. 10, 507 S.E.2d 827 (1998); Brown v. State, 188 Ga.App. 184, 187, 372 S.E.2d 514 (1988). See also United States v. Bailey, 691 F.2d 1009 (11th Cir.1982), cert. denied, 461 U.S. 933, 103 S. Ct. 2098, 77 L. Ed. 2d 306 (1983).
[11] Hamm v. State, 259 Ga.App. 412, 413, 577 S.E.2d 85 (2003).
[12] In the Interest of J.T., 239 Ga.App. 756, 759, 521 S.E.2d 862 (1999); Holt v. State, 227 Ga. App. 46, 487 S.E.2d 629 (1997).
[13] Compare, e.g., State v. Stilley, supra at 871, 584 S.E.2d 9 (under OCGA § 40-6-395(a), driver may not continue to operate a motor vehicle when directed by an officer to stop, even if stop is ultimately held to be improper; "we will not leave `the determination of whether there is a "legal" basis for a traffic stop to the driver'") (punctuation and footnote omitted).
[14] (Footnote omitted.) Id.; Eichelberger v. State, supra at 804, 557 S.E.2d 439 (2001).
[15] OCGA § 16-5-23(a) ("A person commits the offense of simple battery when he or she either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.").
[16] OCGA § 16-5-23(e) ("[a]ny person who commits the offense of simple battery against a police officer ... engaged in carrying out official duties shall, upon conviction thereof, be punished for a misdemeanor of a high and aggravated nature"). Notably, battery against a police officer does not include the qualification that the police be in "lawful discharge" of their official duties as is necessary to prove obstruction; clearly the legislature could have added the additional element of "lawful discharge" contained in the obstruction statute, but chose not to. Under the rules of statutory construction, the omitted language cannot be deemed meaningless. Gilbert v. Richardson, 264 Ga. 744, 748(3), 452 S.E.2d 476 (1994); State of Ga. v. C.S.B., 250 Ga. 261, 263, 297 S.E.2d 260 (1982). See also Pearson v. State, 224 Ga.App. 467, 468, 480 S.E.2d 911 (1997) (it is possible to commit the offense of simple battery against a police officer per OCGA § 16-5-23(e) and not commit an obstruction per OCGA § 16-10-24(a) or (b)).
[17] United States v. Crump, 62 F. Supp. 2d 560, 568 (D.Conn.1999).
[18] United States v. Bailey, supra at 1017; State v. Stilley, supra at 870-871, 584 S.E.2d 9. Compare State v. Newton, 227 Ga.App. 394, 397(4), 489 S.E.2d 147 (1997) (physical precedent only) (common law doctrine allows one to forcibly resist an illegal arrest).
[19] (Citation omitted.) United States v. Crump, supra at 568.
[20] (Citation and punctuation omitted.) United States v. Sprinkle, 106 F.3d 613, 619 (4th Cir. 1997).
[21] United States v. Bailey, supra at 1016-1017; accord State v. Stilley, supra; Eichelberger v. State, supra at 804, 557 S.E.2d 439; Patel v. State, supra at 179, 522 S.E.2d 760; Davis v. State, supra; Brown v. State, supra at 187, 372 S.E.2d 514. Accord federal law, e.g., United States v. Awadallah, 349 F.3d 42, 73 (2nd Cir. 2003); United States v. Sprinkle, supra at 619; United States v. Dawdy, 46 F.3d 1427, 1430-1431 (8th Cir.1995); United States v. Pryor, 32 F.3d 1192, 1195-1196 (7th Cir.1994); United States v. Smith, 7 F.3d 1164, 1167 (5th Cir.1993); United States v. Waupekenay, 973 F.2d 1533, 1537 (10th Cir.1992); United States v. Mitchell, 812 F.2d 1250, 1253 (9th Cir.1987); United States v. Garcia-Jordan, 860 F.2d 159, 161 (5th Cir.1988); United States v. King, 724 F.2d 253, 256 (1st Cir.1984); United States v. Garcia, 516 F.2d 318, 319-320 (9th Cir.1975); United States v. Nooks, 446 F.2d 1283, 1288 (5th Cir.1971). Accord state law, e.g., People v. Smith, 870 P.2d 617 (Colo.App.1994); State v. Brocuglio, 64 Conn. App. 93, 779 A.2d 793 (2001); Commonwealth v. Borges, 395 Mass. 788, 482 N.E.2d 314 (1985); State v. Nelson, 336 S.C. 186, 519 S.E.2d 786 (1999); Bradfield v. State, 2001 WL 277950, 2001 Tenn.Crim.App. Lexis 183 (March 9, 2001); State v. Wagstaff, 846 P.2d 1311, 204 Utah Adv.Rep. 56 (1993); State v. Alexander, 157 Vt. 60, 595 A.2d 282 (1991); Commonwealth v. Cooper, 56 Va. Cir. 501, 2001 WL 34038593 (2001); State v. Young, 93 Wash.App. 1060, 1999 WL 18425, 1999 Wash. App. Lexis 94 (January 19, 1999).
[22] OCGA § 17-4-20(a).
[23] Fuller v. State, 256 Ga.App. 840, 842(1), 570 S.E.2d 43 (2002).
[24] (Citations and punctuation omitted.) Cole v. State, 254 Ga.App. 424, 426(2), 562 S.E.2d 720 (2002), citing United States v. Jones, 990 F.2d 405, 408 (8th Cir.1993), cert. denied, 510 U.S. 934, 114 S. Ct. 350, 126 L. Ed. 2d 314 (1993); accord Garrett v. State, 259 Ga.App. 870, 875(2), 578 S.E.2d 460 (2002).
[25] Farmer v. State, 156 Ga.App. 837, 839, 275 S.E.2d 774 (1980), citing United States v. Clark, 559 F.2d 420, 425 (5th Cir.1977).
[26] United States v. Bailey, supra; United States v. Crump, supra.
[27] (Citation omitted.) State v. Sims, 248 Ga.App. 277, 278, 546 S.E.2d 47 (2001).