Holt v. State

Judge Harold R. Banke,

concurring specially.

I fully concur in the majority’s finding that the officer violated Holt’s Fourth Amendment rights by detaining and questioning him in the absence of specific and articulable facts which would justify the intrusion. Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). The dissent overlooks the clear differences between this case and the controlling authority on the parameters of articulable suspicion, the constitutional standard which must be satisfied before legally stopping an individual under the instant circumstances. Terry v. Ohio, 392 U. S. at 21 .

In this case, the defendant was one of three black men in a car that had driven once around a Gwinnett County business center parking lot at about 10:30 a.m. Because the windshield was broken the officer had a justifiable reason for stopping the car. However, the only articulated reasons the officer had for questioning defendant, a passenger, were (1) the defendant was “making kind of furtive movements like [he] was nervous” and “fidgety” and (2) one car in the lot had been broken into over the weekend. 2 The officer admitted he had no description of the perpetrator of that crime and had no evidence to link the defendant with it. In fact, when asked what indicated to him that the car’s occupants might have committed a crime, the officer testified, “Nothing indicated to me that they might have, other than they might have done it.” The officer’s response when asked how he connected the car’s occupants with the weekend break-in was, “I didn’t connect them with that.”

The controlling cases require substantially more evidence to satisfy the articulable suspicion standard. In Terry v. Ohio, the defendants were obviously “casing” a store. They each walked in front of it, looked in, and walked back to a nearby corner five or six times. They interrupted this ritual to converse with a third man and eventually followed him down a path he had taken earlier. After watching for over ten minutes, the officer was thoroughly suspicious, and when the men stopped in front of the store again, he asked them their names. Terry, 392 U. S. at 6-7 . The activity described in Terry clearly *54 was more than mere “fidgeting.”

Williams v. State, 163 Ga. App. 866, 868 (2) ( 295 SE2d 361 ) (1982), is likewise distinguishable. In that case, a drugstore received a bomb threat around 2:00 in the morning from a caller who sounded like a white male. Around 4:00 a.m., after several more calls threatening to detonate the bomb by remote control if certain drugs were not delivered to a designated drop point, the druggist and a police officer looked out the window into the deserted parking lot and spotted a car. Its white male driver proceeded very slowly across the lot, more or less stopped in front of the store, looked through the window and saw the officer, and left. Police stopped the car and recognized the driver’s voice from the calls making bomb threats.

The many salient differences between the instant case and Williams include the fact that the officer there was immersed in investigating and preventing a serious, potentially life-threatening offense in progress at the time of the stop. The setting, in the middle of the night in a totally deserted parking lot, instead of during the lunch hour in a crowded lot, helped the officer in Williams focus on the suspect. The officer in Williams had reason to believe a white male had made the threatening calls, unlike the officer in the instant case who admitted he had no description of the perpetrator of the weekend auto break-in. The defendant in Williams matched the description of the perpetrator and created reasonable suspicion by looking into the store, spying the officer, and leaving, acts not so different from the defendants in Terry . In our case, the officer articulated no facts linking Holt to the break-in. The officer did not even report that the defendant looked at the cars while completing his single circle around the lot. The only evidence supporting the officer’s action was that Holt looked “furtive” and “nervous” and “fidgeted.” Given the fact that Holt’s arrest occurred in a parking lot on a mid-June day nearly 30 minutes after the officer stopped the car, the cause of Holt’s discomfort need not be attributed to culpable thoughts.

I concur as well because the last line of the opinion makes it appear as though obstruction may be an additional element of the crime charged. Obstruction is not an element of OCGA § 16-10-25 (giving a false name to an officer).

In his report, which was written “right after” arrest, the officer noted there had been “an entering auto over the weekend,” which was his stated reason for seeking the identities of all the car’s occupants. Months later at trial, the officer tentatively inflated that count, testifying that some officers told him “that there was some entering autos either that Sunday or Monday in the Pinnacle Center Business Park. . . .” During cross-examination, the officer also tentatively inflated his initial testimony that the vehicle he stopped “drove around that parking lot once,” asserting that “they rode around that parking lot one or two times, I can’t remember.”