In State v. Gauthier, A13A2430, (3/21/14), the Georgia Court of Appeals reversed a Gwinnett County trial court’s decision to suppress evidence in a DUI case based on lack of articulable reasonable suspicion. In this case, Defendant was alleged to have been seen by Gwinnett County police entering a parking lot after businesses were closed for the evening. At, or around 2:56 a.m, a Gwinnett County police officer pulled into the parking lot of the closed business but did not activate his blue lights. The officer approached Defendant’s car, at which time she apparently just lowered her window without being asked. The officer then asked her why she was in a closed parking lot and requested identification. Defendant stated she was waiting for her boyfriend. A second officer approached “just minutes” later, observing the Defendant be crying and distraught. She admitted to that officer that she had “one mixed drink.” The officer conducted field sobriety exercises, after which the Defendant was arrested for DUI less safe.
The trial court held that the officer lacked reasonable suspicion to conduct the roadsides exercises. However, the Georgia Court of Appeals overturned the decision, holding that this encounter was not a second-tier encounter. Such a level of intrusion requires an officer have articulable suspicion, which is a particularized and objective basis for suspecting someone is involved in criminal activity. In other words, a second-tier encounter is a seizure or detention for Fourth Amendment purposes. A first-tier encounter is merely verbal communication that does not involve any coercion or detention.
So at what point would Defendant have been subjected to a second-tier encounter, in this case, thereby triggering Fourth Amendment protections? On one hand, police can ask someone who is parked in a parking lot of a closed business for identification. Anderson v. State, 123 Ga. App. 57, 179 S.E.2d 286 (1970). However, the police cannot use one’s failure to cooperate, or even failure to listen to them, as grounds for further detention or seizure. Florida v. Royer, 460 U.S. 491 (1983). As stated in Anderson, “The point at which the routine protection of the public becomes an invasion of the right of privacy of the individual must rest on the particular circumstances involved.” With that in mind, certain actions by the police can escalate an encounter from the first tier to the second tier. For example, a second-tier encounter occurred where the police drove up on a group of individuals, and an officer said “hey, hold on guys, come here.” Walker v. State, 299 Ga. App. 788, 683 SE 2d 867 (2009). Similarly, and somewhat coincidentally, another Defendant by the name of Walker was ordered to remove his hands from his pocket as he was seen by an officer walking on school grounds after midnight. This command amounted to a second-tier encounter. Because the officer was unable to show he had reasonable, articulable suspicion to detain the Defendant, the seizure was unlawful. Walker v. State, 747 S.E.2d 51 (2013).
The opinion, in this case, is silent regarding how the officer parked his vehicle. However, we know that had he blocked her vehicle from leaving and activated his blue lights, this would have been a second-tier encounter. Jones v. State 291 Ga. 35 (2012). Would this have been detention if the officer commanded Defendant to roll down her window? The answer should be a resounding “Yes.” There is not much difference between an officer commanding someone to roll down his or her window when they are stopped in a parking lot after business hours and an officer commanding someone on school property after hours to remove his or her hands from the pockets. At first blush, this seems like an unfortunate decision for the defense. However, case law demonstrates that the encounter could easily have escalated to a seizure with a slight modification of the fact pattern. In spite of this opinion, second-tier encounters are still alive and well in Georgia.
-Author: Eric Bernstein