Bacallao v. State, A10A1743, January 6, 2011. After a Bench Trial in Oconee County State Court in Watkinsville, Georgia, Denise Bacallao was convicted of DUI. She appealed alleging that her stop and seizure was illegal.  She was stopped after a Georgia State Trooper saw her pull into a gas station immediately before a roadblock was being conducted.  The State Trooper followed her into the parking lot and as she was getting out of her vehicle to go into the store approached her and asked to see her license informing her that the Georgia State Patrol was conducting a road safety check. Ms. Bacallao did not know that she could refuse to speak with the State Trooper.  The trial court found that the encounter with the State Trooper was the first-tier encounter and did not require articulable suspicion as a traffic stop would.  Ms. Bacallao was not told the encounter was mandatory.  There was no indication that her compliance was mandatory.  Therefore, despite there being no articulable suspicion of criminal activity the stop was legal.

At least three types of police-citizen encounters exist (1) verbal communications involving no coercion or detention; (2) brief “stops” or “seizures” that require reasonable suspicion; and (3) “arrests,” which can only be supported by probable cause. A first-tier encounter never intrudes upon any constitutionally protected interest, since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. On the other hand, a second-tier encounter may violate the Fourth Amendment if the officer briefly “stops” or” seizes” a citizen without an articulable suspicion. Articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity. Moreover, a “seizure” within the meaning of the Fourth Amendment only occurs when, given all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave.