Black v. State

ADAMS, Judge,

dissenting.

I respectfully dissent because, considering the totality of the circumstances, the officers had reasonable articulable suspicion to make a Terry-type investigative stop of Rodney Black. Accordingly, the officers were properly in the Black home when Mr. and Mrs. Black consented to the search of their own room.

*49 “[T]he Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity may be afoot.” (Citations and punctuation omitted.) United States v. Arvizu, 534 U. S. 266,273 (122 SC 744,151 LE2d 740) (2002). And this court “must look at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” (Citation omitted.) Id. “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” (Citations omitted.) Id. And the Supreme Court has instructed that we must not evaluate factors considered by the officers in isolation from each other because by doing so we would fail to take into account the “totality of the circumstances.” Id. at 274 .

Here, the factors known to the officers before they seized Rodney Black for investigative questioning included the following: (1) an anonymous informant and a confidential informant had indicated that the Black residence might conceal a methamphetamine lab; (2) three young men departed from that house; (3) in direct response to seeing marked police cars pull into the gas station, Rodney stopped what he was doing and entered the gas station, then in less than thirty seconds he exited the opposite side and began walking “very briskly” toward the wood line behind the store; (4) as an officer called to talk to Rodney, Rodney kept moving faster toward the wood line, in what the officer described as a “speedwalk.”

It is true that the normal support required to establish indicia of reliability for the anonymous tip and the confidential informant were not presented. See Alabama v. White, 496 U. S. 325, 332 (110 SC 2412, 110 LE2d 301) (1990) (regarding relevance of anonymous tips when determining whether reasonable suspicion exists); Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983) (regarding confidential informants). But the fact that the officers had some information that illegal drug activity was occurring in the house is still part of the totality of circumstances that the officers faced when they considered how to react to Rodney Black’s actions at the gas station; as is the fact that the three men left from that same house. Cf. Rolfe v. State, 278 Ga. App. 605 ( 630 SE2d 438 ) (2006) (previous reports of thefts and break-ins in area where defendants were found after business hours were relevant to totality of circumstances).

As for Rodney’s reaction at the gas station, the testimony is that he reacted to the presence of the marked police cars. Although his actions may not amount to “headlong flight,” the Supreme Court has explained that “nervous, evasive behavior is another pertinent factor in determining reasonable suspicion.” (Emphasis supplied.) Illinois v. Wardlow, 528 U. S. 119, 124 (120 SC 673, 145 LE2d 570) (2000). See, *50 e.g., Evans v. State, 262 Ga. App. 712, 716 ( 586 SE2d 400 ) (2003) (startled reaction when spotting police vehicle and immediate evasive action relevant). Here, Rodney reacted to the police cars by going quickly into the station and out the other side in a “speedwalk” toward a wood line behind the station, accelerating as another officer approached him.

An individual has a right to ignore the police and go about his business when an officer attempts to question him or her without reasonable suspicion or probable cause. Florida v. Royer, 460 U. S. 491, 497-498 (103 SC 1319, 75 LE2d 229) (1983). “But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite.” Illinois v. Wardlow, 528 U. S. at 125 . “Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.” Id. Here, rather than continuing to talk to his companions while they were pumping gas, Rodney Black quickly went into the station and out the back door toward some woods. It was reasonable to conclude that he was not just going about his business but that he was reacting evasively in response to seeing the police cars. “[T]he determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior.” Id. Although Rodney’s actions may have been consistent with innocent actions, “[a] determination that reasonable suspicion exists ... need not rule out the possibility of innocent conduct.” United States v. Arvizu, 534 U. S. at 277 .

The officer who witnessed the entire affair testified that based on his experience, he had articulable suspicion to stop Rodney for further investigation:

Well, it’s articulable suspicion to me. He’s coming from a possible drug house. He sees a patrol vehicle. I know I saw him look at the patrol vehicle and then he immediately makes an evasive action to go into the store. And then I would say in seconds, he shoots out the other side of the door and starts walking to an unknown area where he’s leaving all his friends on the other side or whoever they were.

The officer made exactly the sort of inference or deduction based on the factors presented to him that he is authorized to make under the law. See, e.g., Fitz v. State, 275 Ga.App. 817, 819 (622 SE2d46) (2005) (reasonable for officer to infer that defendant was engaged in criminal activity when a truck was parked for an hour in an unusual location near residential subdivision and defendant darted out of *51 woods wearing gloves in summer, got in truck, and drove off); Howard v. State, 265 Ga. App. 835, 836 ( 595 SE2d 660 ) (2004) (reasonable for officer, during attempt to serve search warrant, to infer that man who drove up, saw officer, and drove away was the person to be arrested).

Decided August 10, 2006

Bray & Johnson, Jonathan A. Kesler, Richard A. Jones, Mathew A. Baker, for appellants.

Garry T. Moss, District Attorney, Scott T. Poole, Assistant District Attorney, for appellee.

Finally, the determination of whether the officers’ actions were lawful does not depend on whether they proceeded as if they were involved in a first-tier encounter; it depends on whether they had reasonable suspicion of criminal activity before they detained the suspect. Officers with reasonable suspicion of criminal activity are not required to turn on their blue lights or otherwise immediately announce that they have the authority to perform a second-tier investigatory stop. They may proceed as they see fit under the circumstances.

I would therefore conclude that the trial court correctly held that the officers were justified in stopping Rodney Black for questioning. Rodney’s subsequent voluntary consent to search his room gave the officers legal authority to enter the Black home. Therefore, the officers were at a place they were authorized to be when Mr. and Mrs. Black consented to a search of their own room. Accordingly, I would affirm the decision of the trial court.

I am authorized to state that Presiding Judge Andrews joins in this dissent.