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State v Walker – temporary halting is not a submission to authority or seizure under the 4th Amendment

State v. Walker, S13G1793, Georgia Supreme Court, October 20, 2014.  The Georgia Supreme Court reversed the Georgia Court of Appeals in Walker v. State, A13A0444, July 12, 2013, where the Court of Appeals held that a police officer’s order to take your hands out of your pockets to Ernest Walker who then ran away was a second-tier police-citizen encounter -investigative detention- that must be based upon articulable suspicion of a Georgia criminal code violation. 

A Warner Robbins police officer was on the lookout for a black male in dark clothing suspected of theft.  He encountered Walker, wearing a blue shirt and light pants, on the grounds of an elementary school shortly after midnight.  The officer commanded Walker to remove his hands from his pockets, after which Walker ran from the police.  In the process, Walker threw away crack cocaine and pipe, both of which were suppressed by the Court of Appeals as a result of an illegal seizure.

Georgia case law had previously held in State v. Banks that a seizure occurred where an officer told a Defendant to “take his hands out of his pocket.” Banks, 223 Ga. App. 838 (1996).  See also Brown v. State, 301 Ga. App. 82, 84 (2009) and Peters v. State, 242 Ga. App.816, 818 (2000) for similar holdings.  In this case, the Court parted ways with that precedent.  Its reasoning was that because Walker did not actually submit to the officer’s show of authority, no seizure occurred.

The Georgia Supreme Court reasoned that there is no seizure within the meaning of the 4th Amendment without submission to the authority of the police. Further, Walker’s running and being chased by police was not a seizure under the Fourth Amendment. Consequently, there was no seizure under the Fourth Amendment until Walker was actually caught or physically seized by police. Because during the chase and before he was seized by police Walker allegedly threw a crack rock and crack pipe away, these items were abandoned by Walker before he was seized and not protected by the Fourth Amendment. Finally, the fact that Walker at first ran and then stopped while being chased by police in response to a command to halt was not a submission to police authority until he was physically captured because it was only a “temporary halting and not an actual submission to the asserted authority.”

The problem with the Court’s reasoning is that a seizure does not actually require physical touching.  Rather it merely requires restraint on liberty through either a “physical show of force or show of authority,” per the United States Supreme Court. Terry v. Ohio, 392 U.S. 1, 20 fn16 (1968) (emphasis added).  It seems abundantly clear that a uniformed police officer commanding that a citizen display his hands is certainly showing authority.

-Author: George Creal

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