Brown v. State, 686 S.E.2d 793 (Ga. Ct. App. 2009). · Go Syfert
Brown v. State, 686 S.E.2d 793 (Ga. Ct. App. 2009). Cases Citing This Book View Copy Cite
78 citation events (78 in the last 25 years) across 2 distinct courts.
Strongest positive: Durden v. State (gactapp, 2013-03-08)
Treatment trajectory · 2010 → 2026 · click a year to view as-of
2010 2018 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (quoted) Durden v. State (2×) also: Cited "see"
Ga. Ct. App. · 2013 · signal: see · quote attribution · 1 verbatim quote · confidence high
what began as a first-tier encounter escalated into a second-tier stop when the officer told the defendant to remove his hands from his pockets.
discussed Cited as authority (quoted) Steve Durden v. State (2×) also: Cited "see"
Ga. Ct. App. · 2013 · signal: see · quote attribution · 1 verbatim quote · confidence high
what began as a first-tier encounter escalated into a second-tier stop when the officer told the defendant to remove his hands from his pockets.
discussed Cited as authority (rule) State v. Christopher Mrozowski
Ga. Ct. App. · 2024 · confidence medium
See e. g., Ewumi 315 Ga. App. 658 (1) (officer’s attempt to arrest defendant for obstruction is unlawful when defendant has the right to leave a first-tier encounter and the officer has no reasonable, articulable suspicion to detain him); Brown v. State, 301 Ga. App. 82, 85 ( 686 SE2d 793 ) (2009) (officer escalated first-tier encounter to second-tier encounter involving temporary restraint when he ordered defendant to remove his hands from his pockets without reasonable, articulable suspicion that defendant was or was about to be engaged in criminal activity); State v. Dukes, 279 Ga. App. 2…
discussed Cited as authority (rule) State v. Walker (2×)
Ga. · 2014 · confidence medium
See also Durden v. State, 320 Ga. App. 218, 220 ( 739 SE2d 676 ) (2013) (The suspect removed his hands from his pockets when directed, and “even if the officer’s initial interaction with [the suspect] could be characterized as a first-tier encounter, it escalated into a second-tier stop when the officer ordered Durden to remove his hands from his pockets”); Brown v. State, 301 Ga. App. 82, 84 ( 686 SE2d 793 ) (2009) (“What began as a first-tier encounter escalated into a second-tier stop when the officer told him to remove his hands from his pockets,” and the suspect removed one hand…
examined Cited as authority (rule) Jose Hernandez-Espino v. State (3×) also: Cited "see"
Ga. Ct. App. · 2013 · confidence medium
For example, in Brown v. State, 301 Ga. App. 82, 85-86 ( 686 SE2d 793 ) (2009), we found that an officer’s past experience with the defendant, the defendant’s presence as a non-resident at an apartment complex known for drug and criminal activity, the defendant’s attire, and the defendant’s avoidance of the officer did not give the officer the requisite reasonable, articulable suspicion.
discussed Cited as authority (rule) Ernest Walker, Sr. v. State
Ga. Ct. App. · 2013 · confidence medium
(Citation and punctuation omitted.) Brown v. State, 301 Ga. App. 82, 82-83 ( 686 SE2d 793 ) (2009). “[W]here the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, [however,] the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” 2 (Punctuation and footnote omitted.) Burgess v. State, 290 Ga. App. 24 ( 658 SE2d 809 ) (2008). (a) We first consider whether the officer detained Walker in violation of the Fourth Amendment.
examined Cited as authority (rule) Walker v. State (3×)
Ga. Ct. App. · 2013 · confidence medium
(Citation and punctuation omitted.) Brown v. State, 301 Ga. App. 82, 82-83 ( 686 SE2d 793 ) (2009). “[Wjhere the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, [however,] the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Punctuation and footnote omitted.) Burgess v. State, 290 Ga. App. 24 ( 658 SE2d 809 ) (2008). (a) We first consider whether the officer detained Walker in violation of the Fourth Amendment.
discussed Cited as authority (rule) Bruce Brunell Carter v. State
Ga. Ct. App. · 2013 · confidence medium
See Walker v. State, 299 Ga. App. 788, 790 (1) ( 683 SE2d 867 ) (2009) (officer told defendant to “‘hold on . . . come here,’ and sit on the pavement, and . . . then asked [him] questions pursuant to a ‘field investigation’”); Brown v. State, 301 Ga. App. 82, 83 ( 686 SE2d 793 ) (2009) (after defendant denied having a weapon, officer drew his gun and told defendant to walk to the patrol car); Barnes v. State, 228 Ga. App. 44, 44-45 ( 491 SE2d 116 ) (1997) (police asked defendant to stop, “started tussling” with him, took a box containing crack cocaine from him, and told him to …
discussed Cited as authority (rule) Carter v. State
Ga. Ct. App. · 2013 · confidence medium
See Walker v. State, 299 Ga. App. 788, 790 (1) ( 683 SE2d 867 ) (2009) (officer told defendant to “ ‘hold on . . . come here,’ and sit on the pavement, and . . . then asked [him] questions pursuant to a ‘field investigation’ ”); Brown v. State, 301 Ga. App. 82, 83 ( 686 SE2d 793 ) (2009) (after defendant denied having a weapon, officer drew his gun and told defendant to walk to the patrol car); Barnes v. State, 228 Ga. App. 44, 44-45 ( 491 SE2d 116 ) (1997) (police asked defendant to stop, “started tussling” with him, took a box containing crack cocaine from him, and told him t…
discussed Cited as authority (rule) Walker v. State
Ga. Ct. App. · 2012 · confidence medium
To meet the reasonable suspicion standard, the police must have, under the totality of the circumstances, “a particularized and objective basis for suspecting the person is involved in criminal activity.” (Citation and punctuation omitted.) Brown v. State, 301 Ga. App. 82, 84-85 ( 686 SE2d 793 ) (2009).
cited Cited as authority (rule) Oglesby v. State
Ga. Ct. App. · 2011 · confidence medium
(Citations and punctuation omitted.) Brown v. State, 301 Ga. App. 82, 82-83 ( 686 SE2d 793 ) (2009).
cited Cited as authority (rule) Santos v. State
Ga. Ct. App. · 2010 · confidence medium
(Citation, punctuation and footnote omitted.) Brown v. State, 301 Ga. App. 82, 84 ( 686 SE2d 793 ) (2009).
discussed Cited as authority (rule) Odom v. State
Ga. Ct. App. · 2010 · confidence medium
Pippen followed Odom after he walked back around the building and then ordered Odom to “come here” and then to “stop.” See Brown v. State, 301 Ga. App. 82, 85 ( 686 SE2d 793 ) (2009) (order to suspect to remove hands from pockets established second-tier encounter).
examined Cited "see" Myers v. the State (3×)
Ga. Ct. App. · 2015 · signal: accord · confidence high
Ellington, P. J., and McFadden, J., concur. 1 Brown v. State, 293 Ga. 787, 803 (3) (b) (2) ( 750 SE2d 148 ) (2013); Miller v. State, 288 Ga. 286, 286 (1) ( 702 SE2d 888 ) (2010). 2 Miller, 288 Ga. at 286 (1) (punctuation omitted); accord Brown, 293 Ga. at 803 (3) (b) (2). 3 Miller, 288 Ga. at 286 (1) (punctuation omitted); accord Brown, 293 Ga. at 803 (3) (b) (2). 4 Miller, 288 Ga. at 286 (1) (punctuation omitted); accord Brown, 293 Ga. at 803 (3) (b) (2). 5 Brown v. State, 301 Ga. App. 82, 84 ( 686 SE2d 793 ) (2009) (punctuation omitted); accord Santos v. State, 306 Ga. App. 772, 773-74 (1) (…
discussed Cited "see" State v. Paul Richards (2×)
Ga. Ct. App. · 2014 · signal: see · confidence high
See Brown v. State, 301 Ga. App. 82, 84-85 ( 686 SE2d 793 ) (2009) (officer directed defendant to remove his hands from his pockets, 3 thereby escalating encounter from first tier to second tier).
discussed Cited "see" State v. Richards (2×)
Ga. Ct. App. · 2014 · signal: see · confidence high
See Brown v. State, 301 Ga.App. 82, 84-85 ( 686 SE2d 793 ) (2009) (officer directed defendant to remove his hands from his pockets, thereby escalating encounter from first tier to second tier).
discussed Cited "see" Hernandez-Espino v. State (2×)
Ga. Ct. App. · 2013 · signal: see · confidence high
See Brown v. State, 301 Ga. App. 82, 84-85 ( 686 SE2d 793 ) (2009) (officer directed defendant to remove his hands from his pockets, thereby escalating encounter from first tier to second tier).
discussed Cited "see" In the Interest of J. B. (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
See Brown v. State, 301 Ga. App. 82, 85 ( 686 SE2d 793 ) (2009) (holding that none of defendant’s described activities, i.e., walking faster away from the police officer who knew him from a previous encounter, ignoring the police officer calling his name, or being present in an area known for its propensity for drugs and criminal activity, is a crime in and of itself, nor are they enough to make an objective determination that defendant was about to be engaged in criminal activity).
discussed Cited "see" In Re Jb (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
(Emphasis supplied) [22] Thomas, 301 Ga.App. at 202 (1), 687 S.E.2d 203 (punctuation omitted); see Walker, 299 Ga. App. at 790-91 (1), 683 S.E.2d 867 (holding that defendant's apparent nervousness in the presence of a group of police officers, even in a known drug area, does not provide a basis for a reasonable articulable suspicion). [23] At the hearing, one of the investigating officers testified that J.B. was "fast pace walking," and that while it appeared J.B. had at one point been running, the officer conceded that he had "never seen him run." [24] See Black, 281 Ga.App. at 44 (1), 635 S.…
discussed Cited "see, e.g." The State v. Allen (2×)
Ga. Ct. App. · 2015 · signal: see also · confidence medium
State, 298 Ga.App. 391, 394 (1) (a) ( 680 SE2d 459 ) (2009) (punctuation omitted); accord State v. Walker, 295 Ga. 888, 889-890 ( 764 SE2d 804 ) (2014). 11 Minor, 298 Ga. App. at 394 (1) (a) (punctuation omitted); accord Jones v. State, 291 Ga. 35, 37 (1) ( 727 SE2d 456 ) (2012) (noting that a first-tier encounter may become a seizure when “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave” (punctuation omitted)). 12 Thomas v. State, 301 Ga. App. 198, 201 (1) ( 687 SE2d 203 ) (2009) (punctuation omitted); acc…
examined Cited "see, e.g." EWUMI v. State (3×)
Ga. Ct. App. · 2012 · signal: see also · confidence medium
B., 314 Ga. App. at 680 (1). 13 Id. (punctuation omitted). 14 Id. (punctuation omitted); accord State v. Dukes, 279 Ga. App. 247, 248-49 ( 630 SE2d 847 ) (2006). 15 Black v. State, 281 Ga. App. 40, 44 (1) ( 635 SE2d 568 ) (2006) (punctuation omitted). 16 Id. 17 Celestin v. State, 255 Ga. App. 792, 794 (1) ( 567 SE2d 82 ) (2002) (punctuation omitted). 18 Black, 281 Ga. App. at 43 (1) (punctuation omitted); accord Dukes, 279 Ga. App. at 249 . 19 Black, 281 Ga. App. at 43 (1) (punctuation omitted). 20 Id. (punctuation omitted). 21 Id. (punctuation omitted). 22 See Dukes, 279 Ga. App. at 249 (hold…
discussed Cited "see, e.g." State v. Nesbitt (2×)
Ga. Ct. App. · 2010 · signal: see, e.g. · confidence low
See, e.g., Brown v. State, 301 Ga. App. 82 ( 686 SE2d 793 ) (2009); State v. Dukes, 279 Ga. App. 247 ( 630 SE2d 847 ) (2006); Peters v. State, 242 Ga. App. 816, 817 ( 531 SE2d 386 ) (2000). 34 See generally Wolf v. State, 291 Ga. App. 876, 878 (1) ( 663 SE2d 292 ) (2008) (what a person knowingly exposes to the public is not a subject of Fourth Amendment protection); Reynolds, supra (where defendant’s flight on foot from Terry traffic investigative stop provided an independent basis for defendant’s arrest, methamphetamine found on ground in close proximity to where defendant was apprehended…
Retrieving the full opinion text from the archive…
Brown
v.
the State
A09A1796.
Court of Appeals of Georgia.
Oct 23, 2009.
686 S.E.2d 793
2009 Ga. App. LEXIS 1227
Jeffrey W. Frazier, Kenneth R. Croy, for appellant., Patrick H. Head, District Attorney, Gregory L. Epstein, John R. Edwards, Assistant District Attorneys, for appellee.
Ellington, Johnson, Mikell.
Cited by 26 opinions  |  Published
1 passages pin-cited by 2 cases
Pinpoint authority: bottom 92%
Citer courts: Court of Appeals of Georgia (2)
Ellington, Judge.

A Cobb County jury found James Thomas Brown guilty of possession of cocaine, in violation of the Georgia Controlled Substances Act, OCGA § 16-13-30 (a). Brown appeals, challenging the trial court’s denial of his motion to suppress. For the following reasons, we reverse.

When reviewing a trial court’s decision on a motion to suppress, this [Cjourt’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and[*83] judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citations and punctuation omitted.) Lambright v. State, 226 Ga. App. 424, 424-425 (487 SE2d 59) (1997).

Viewed in the light most favorable to the trial court’s ruling, the record shows the following. On February 2, 2008, an officer responded to a domestic call at an apartment complex in Cobb County that is located in an area known for heavy drug and criminal activity. Around 9:00 p.m., when the officer was returning to his car, he noticed Brown walking through the parking lot. Brown was walking toward the officer, and upon seeing him, dropped his head and started to walk faster away from the officer. The officer thought it was suspicious for Brown to be walking through the parking lot, because he knew Brown was not a resident. The officer decided to stop Brown and ask him why he was in the complex. The officer called out to Brown, saying “Hey, hey James, What are you doing?” Brown appeared to ignore the officer and walked away. The officer called to Brown a second time, and Brown stopped. [1] The officer asked Brown where he was going, and Brown replied that he was “cutting through” the parking lot. The officer then asked Brown to take his hands out of his pockets, but Brown did not comply. The officer asked Brown to take his hands out of his pockets a second time, and then immediately asked him if he had any weapons. Brown replied “Yes,” but quickly changed his answer to “No.” When the officer drew his weapon and specifically asked Brown if he had a gun, Brown replied “No.” The officer ordered Brown to remove his hands from his pockets, and then told him to walk to the officer’s patrol car. Brown removed his left hand from his pocket and threw an object to the ground. Brown then walked to the patrol car where the officer detained him with handcuffs. After other units arrived on the scene, the officer recovered the object Brown had thrown down. It was determined to be a crack pipe.

On appeal, Brown contends that his Fourth Amendment rights were violated because the officer did not have a particularized and objective basis for suspecting that he was engaged in criminal activity when Brown spotted the officer and walked quickly in[*84] another direction. Specifically, Brown argues that, under the circumstances, he should have been able to walk away and ignore the officer’s questions and the order to stop.

United States Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. In the first tier, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. The second tier occurs when the officer actually conducts a brief investigative Terry [2] stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.

(Citations, punctuation and footnotes omitted.) Holmes v. State, 252 Ga. App. 286, 287-288 (556 SE2d 189) (2001).

In this case, Brown voluntarily stopped to speak with the officer. At that point, their interaction was a first-tier encounter and no articulable suspicion was required. It was permissible for the officer to question Brown because Brown was free to walk away and avoid the encounter. State v. Harris, 261 Ga. App. 119, 121-122 (581 SE2d 736) (2003) (holding that when a police officer approached the defendant after seeing him go into a hotel room and then walk back into the breezeway, the officer’s approach was a first-tier encounter because “so long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required”) (punctuation and footnote omitted).

What began as a first-tier encounter escalated into a second-tier stop when the officer told him to remove his hands from his pockets. During a second-tier encounter, a police officer may stop a person and briefly detain him or her if the officer has a “particularized and objective basis for suspecting the [person is] involved in criminal[*85] activity.” (Punctuation and footnote omitted.) State v. Harris, 261 Ga. App. at 121. To make a second-tier stop, however, a police officer must possess more than a “subjective, unparticularized suspicion or hunch. The officer’s action must be justified by specific and articu-lable facts which, taken together with rational inferences from those facts, reasonably warrant. . . intrusion[.]” (Punctuation and footnote omitted.) Id. at 121-122. Further, the court must be able to determine that the detention was “neither arbitrary nor harassing.” (Punctuation and footnote omitted.) Id. at 122. “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.” (Punctuation and footnote omitted.) Id. Moreover, in determining whether the stop was justified by reasonable suspicion, the “totality of the circumstances — the whole picture — must be taken into account.” (Citations and punctuation omitted.) Lambright v. State, 226 Ga. App. at 426 (1).

When the officer told Brown to remove his hands from his pockets, the first-tier encounter escalated into a second-tier encounter involving temporary restraint. Therefore, the continued detention had to be supported by articulable suspicion. Holmes v. State, 252 Ga. App. at 286-288. At the motion to suppress hearing, the officer testified that his articulable suspicion was based on his past experience with Brown, Brown’s presence in the apartment complex when he was not a resident, and the fact that the area was known for its drug and criminal activity. The officer was also concerned because Brown saw him and quickly walked in a direction that was away from his residence. Additionally, the officer noticed that Brown was wearing both a hooded sweatshirt and a jacket, and he believed this to be suspicious.

The above facts, however, when taken together with their rational inferences, do not amount to articulable suspicion of criminal activity because there was no objective manifestation that Brown was either committing, or was about to commit, a crime. None of Brown’s described activities, i.e., walking faster away from the police officer, ignoring the police officer, or being present in an area known for its propensity for drugs and criminal activity, is a crime in and of itself, nor are they enough to make an objective determination that Brown was about to be engaged in criminal activity. See Holmes v. State, 252 Ga. App. at 288-289 (holding that there was no objective manifestation that the defendant was or was about to be engaged in criminal activity merely because he approached the passenger side of an unmarked police car in an area known for its drug and criminal activity, appeared to change his mind when he saw the officer’s police vest, and instead walked to a car parked on the side of the road); Peters v. State, 242 Ga. App. 816, 817 (1) (531 SE2d 386) (2000)[*86] (holding that the requisite articulable suspicion was not present when the defendant did not flee from officers in an area known for heavy drug sales, but rather hurried toward his car, just as he was doing before seeing the officers).

Decided October 23, 2009 Reconsideration denied November 17,2009 Jeffrey W. Frazier, Kenneth R. Croy, for appellant. Patrick H. Head, District Attorney, Gregory L. Epstein, John R. Edwards, Assistant District Attorneys, for appellee.

Furthermore, we note that it is not a crime to cut through a parking lot, to be present in an apartment complex where you do not live, nor to wear both a hooded sweatshirt and a jacket during the month of February. In this case, “no evidence was introduced that such activity violated any local ordinance or other applicable law, or that there was any other basis for the stop.” (Punctuation and footnote omitted.) Smith v. State, 245 Ga. App. 613, 615-616 (538 SE2d 517) (2000). Even when considering the totality of the circumstances, these facts do not amount to an objective, articulable suspicion of criminal activity. At best, they represent an officer’s well-honed intuition, or “hunch.” See State v. Harris, 261 Ga. App. at 122-123.

As such, the second-tier encounter between Brown and the officer was unlawful for lack of articulable suspicion and the trial court erred in denying Brown’s motion to suppress evidence garnered from the stop. Holmes v. State, 252 Ga. App. at 288-289; Peters v. State, 242 Ga. App. at 817.

Judgment reversed.

Johnson, P. J., and Mikell, J., concur.
1

The officer’s testimony about whether Brown stopped voluntarily or whether the officer told Brown to stop is inconsistent throughout the motion to suppress hearing and Brown’s trial. The trial court determined in its order that Brown stopped voluntarily, and this Court is bound by that determination.

2

Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).