C3 Warrantless Searches

C3. WARRANTLESS SEARCHES

C3.1 ENCOUNTERS AND SEARCHES WHICH DO NOT REQUIRE EITHER ARTICULABLE SUSPICION OR PROBABLE CAUSE

C3.11 Tier 1 Encounters- Police - citizen interaction with citizen not detained - Police may simply approach person (even in parked car) and engage in conversation without articulable suspicion [Palmer, 257 Ga. App. 650, 572 SE2d 27 (2002)]. Similarly, citizen may initiate conversation [Davidson, 257 Ga. App. 260, 570 SE2d 698 (2002)].

A. If officer turns on emergency lights, approaches with gun drawn, or hand on gun, that is a non-verbal indication that citizen not free to leave - thus a Terry stop (see C3.2) [In re: M.J.H., 239 Ga. App. 894, 522 SE2d 491 (1999); compare Burks, 240 Ga. App. 425, 523 SE2d 648 (1999) ("'An investigatory stop is not automatically an arrest simply because an officer is armed with a shotgun.' ... [I]t is often necessary for the police to approach a person with a drawn weapon in a suspiciously dangerous situation to protect the physical well-being of both police officers and the public."); Collier 282 Ga. App. 605, 639 SE2d 409 (2006) (police bluelight approaching domestic call, odd maneuver of defendant into driveway leads to Tier 1 approach on foot)].

B. Most questioning will not trigger a perception of detention, and police do not have to affirmatively inform citizens they are free to leave unless circumstances would otherwise trigger an impression of detention [INS v. Delgado, 466 U.S. 210 (1984) (questioning all workers at factory about immigration status and having uniformed agents at all exits did not trigger perception of detention); accord, Florida v. Rodriguez, 469 U.S. 1 (1984)].

• Questioning numerous pedestrians encountered late at night with video camera in area with burglaries - Tier 1 encounters [ Lucas, 284 Ga. App. 450, 644 SE2d 302 (2007)];

• Knocking on door and asking permission for entry is usually Tier 1 [Bryant, 284 Ga. App. 867, 644 SE2d 871 (2007)];

• Tier 1 questioning of driver in parking lot became Terry stop when driver asked to exit vehicle [Lanes, 287 Ga. App. 311, 651 SE2d 456 (2007)]; )]; blocking passenger's attempted exit from car converted encounter into Terry stop and there is no right to search for weapons if there is not enough cause for Terry stop [State v. Jones, 303 Ga. App. 337, 693 SE2d 583 (2010)] - nor does refusal to answer questions provide grounds for stop [Jones].

• Tapping on window and motioning subject outside after she ignored earlier request to return for more questioning once the children in her charge were secured converted encounter into Terry stop [Johnson, 299 Ga. App. 474, 682 SE2d 601 (2009)].

CAUTION - Asking for ID is permitted in Tier 1 encounter; requiring an answer is only permitted with Tier 2 Terry stop (see C3.2) [compare Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004) with Brown v. Texas, 443 U.S. 47 (1979); accord, Smith, 281 Ga. 185, 640 SE2d 1 (2006) (request for ID consensual Tier 1 unless contrary indicia); Lucas, 284 Ga. App. 450, 644 SE2d 302 (2007) (ID questioning of numerous pedestrians encountered late at night with video camera in area with burglaries].

C. Frequent ways in which probable cause develops to move up to Terry stop (Tier 2 (see C3.2)) or arrest (Tier 3 (see C3.3)):

1. May ask for ID [INS v. Delgado, 466 U.S. 210 (1984); see OCGA 16-11-36(b) (failure to provide ID as indicia of loitering)]

• Holding ID and asking to step out of car converted Tier 1 encounter into Terry stop [Ward, 277 Ga. App. 790, 627 SE2d 862 (2006)];

2. May ask for consent to search, even luggage, [Florida v. Bostik, 501 U.S. 429 (1991); Higdon, 261 Ga. App. 729, 583 SE2d 556 (2003)]; Varriano v. State, 312 Ga.App. 266, 718 SE2d 14 (2011) (consent to search entire car, including containers, covered passenger's backpack on back seat (passenger didn't object) ]

• If defendant refuses to consent and attempts to disengage, police can not use this for their particularized indicia of criminality [Celestin, 255 Ga. App. 792, 567 SE2d 82 (2002) (request to search bus passengers - defendant did not consent to search and attempted to leave but police kept license and told cab driver he couldn't leave)]; accord State v. Crumpton, 302 Ga. App. 602, 692 SE2d 39 (2010) (refusal to extend consent to body cavity)];

• Likewise, if police request defendant to accompany them to another room and refuse to immediately return ticket, luggage or ID, Terry stop has occurred and consent to search during stop is invalid if stop is unsupported by particularized articulable suspicion [Florida v. Royer,460 U.S. 491 (1983) (in this case the Supreme Court found a Terry detention to be warranted but found the encounter to have become an arrest)];

3. May trigger flight, threatening action, or similar behavior justifying Terry stop: [See, e.g., California v. Hodari D., 499 U.S. 621 (1991) (dicta that running upon sight of police may be enough for articulable suspicion); Illinois v. Wardlow, 528 U.S. 119 (1999) (unprovoked, "headlong" flight in high crime area sufficient for articulable suspicion); Lewis, 294 Ga. App. 607, 669 SE2d 558 (2008) (investigating tip on drugs, person reached into waistband justifying drawing weapon and protective search); McClary, 292 Ga. App. 184, 663 SE2d 809 (2008) (flight when officer calls dispatch); Burgess, 290 Ga. App. 24, 658 SE2d 809 (2008); Devine, 276 Ga. App. 159, 622 SE2d 854 (2005)(flight response to request for pat-down); Holmes, 222 Ga. App. 642, 476 SE2d 37 (1996) (told to leave premises by police, agreed to do so and walked in one direction, but seen minutes later going in opposite direction and attempting to hide when police called to him); Pace, 219 Ga. App. 583, 466 SE2d 254 (1995) Hughes, 269 Ga. 258, 497 SE2d 790 (1998));

NOTE - not articulable suspicion to walk away from Tier 1 encounter - Brown v. Texas, 443 U.S. 47 (1979); Holmes, 252 Ga. App. 286, 556 SE2d 189 (2001) (a good example of suspicious circumstances short of articulable suspicion); Strickland, 265 Ga. App. 533, 594 SE2d 711 (2004) ("absolute right to walk away"); Walker, 299 Ga. App. 788; 683 SE2d 867 (2009) (continued walking away after officer said: "hey, hold on guys, come here, come here"). Brown, 301 Ga.App. 82, 686 SE2d 793, (2009) (quickly walking away after seeing officer, in "high drug" parking lot of apartment complex where subject didn't live didn't create articulable suspicion); Gattison v. State, 309 Ga.App. 382, 711 SE2d 25 (2011) (officer approached apparent "heated discussion" with blue lights and participants dispersed); compare Galindo-Eriza v. State 306 Ga. App. 19, 701 SE2d 516 (2010) (running out back door when officers knock on front-no warrant, no probable cause) with Underwood, 266 Ga.App. 119, 596 SE2d 425 (2004); Sheats v. State , 305 Ga. App. 475, 699 SE2d 798 (2010) (fleeing site of search warrant justifies Terry stop); compare Prado v. State 306 Ga. App. 240, 701 SE2d 871(2010) (Terry stop while warrant application in process) with Hopper, 293 Ga.App. 220, 666 S.E.2d 735 (2008) (merely leaving after brief visit to suspected drug house)].

Flight from Tier 1 alone authorizes Terry stop, but apparently not arrest [Compare Dukes, 279 Ga. App. 247, 630 SE2d 847 (2006) (flight from Tier 1 only authorized stop, not arrest for obstruction) with Devine, 276 Ga. App. 159, 622 SE2d 854 (2005)(flight response to request for pat-down allowed stop, physical resistance after catching up and further commands was obstruction)]. See C3.28B

Flight from traffic stop purges taint of lack of cause - See C3.28A

Reaching in pockets with little more (e.g., nervousness) will justify protective search even in Tier 1 encounter [Santos v. State, 306 Ga.App. 772, 703 SE2d 140 (2010); Pace, 219 Ga. App. 583, 466 SE2d 254 (1995)].

4. Incriminatory statement [White, 267 Ga. App. 200, 598 SE2d 904 (2004) (had "nick weed")].

5. Defendant may abandon or disclaim ownership of evidence which can be investigated [Gray, 254 Ga. App. 487, 562 SE2d 712 (2002)].

D. De-escalation from Tier 2 or 3 to Tier 1 (relevant to voluntariness of consent and statements) [State v. Woods, 311 Ga.App. 577, 716 SE2d 622 (2011); State v. McMichael, 276 Ga. App. 735, 737 (1), 624 SE2d 212 (2005)] look at: "the number of officers, whether they were uniformed, whether police isolated subjects, physically touched them or directed their movement, the content or manner of interrogatories or statements, and "excesses" factors stressed by the United States Supreme Court; geographic, temporal and environmental elements associated with the encounter; and the presence or absence of express advice that the citizen-subject was free to decline the request for consent to search. In general, a full examination must be undertaken of all coercive aspects of the police-citizen interaction."

E. Entry into home or curtilage not generally accessible to public, including open garage door, requires warrant or explicit consent [Corey v. State, 320 Ga.App. 350, 739 SE2d 790 (2013)(entry into garage to start conversation with DUI suspect about to enter home); Mitchell v. State, 747 SE2d 900 (2013)( Officer and dog cutting across driveway and yard to investigate crashing noise in woods not OK)] (See 3.12A10).

C3.12 Consent (Does not require probable cause) [See Hall, 239 Ga. 832, 238 SE2d 912 (1977); Bumper v. N.C.,391 U.S. 543 (1968); Schneckloth v. Bustamonte, 412 U.S. 218 (1973); U.S. v. Watson,423 U.S. 411 (1976)]:

A. Freely and voluntarily given (tracks confession standards and viewed in totality of circumstances) and includes such factors as:

1. age of the accused,

2. his/her education,

3. his/her intelligence,

4. length of detention,

5. whether the accused was advised of constitutional rights,

6. the prolonged nature of questioning,

7. the use of physical punishment,

8. and the psychological impact of all these factors on the accused [Ray, 273 Ga. App. 656; 615 SE2d 812 (2005)] .

• Fact that police state that without consent they will...