On June 4, 2013, the Court of Appeals of Georgia decided the State v. Carr [i] which illustrates the bounds of conduct deemed reasonable under the Fourth Amendment, even when police take action based on “officer safety” concerns. The facts of Carr are as follows:
On March 30, 2012, Jhakeva Smith placed a 911 call to report an act of domestic violence committed against her by her boyfriend. Smith, who remained on the phone with dispatch as she waited for police, gave the 911 operator a description of the suspect and the clothes he was wearing. Officers Lance Wood and Tracy Marks of the Fulton County Police Department responded to the call. As the officers pulled into the apartment complex where Smith lived, dispatch informed them that the victim had reported the suspect was riding in a blue Impala. The officers saw a blue Impala driving towards them and, based on the information they had just received, they stopped the vehicle.
There were two men in the Impala, with Carr being the passenger. Wood acknowledged that he had been given a description of the suspect and his clothing, and that neither man in the car “fit the description of the suspect [police] were looking for.” The officers nevertheless asked Carr and the driver of the Impala for their identification, and each man produced a driver’s license. Wood then moved to an area behind the Impala where he ran a check on both licenses; each license eventually returned with no outstanding warrants.
While Wood was running the license check, Marks opened the passenger door of the Impala. When she did so, the driver of the Impala exited the car and fled from the scene. Wood chased the driver but was unable to apprehend him. By the time Wood returned to the Impala, Marks had removed Carr from the automobile, handcuffed him, and placed him in the back of the patrol car. Marks informed Wood that she had found two guns in the Impala, one in the pocket on the driver’s door and one in the pocket on the passenger’s door. The officers ran the identification numbers on the weapons and learned that the gun found on the passenger side of the car was stolen. At that point, Carr was formally placed under arrest for theft by receiving.
Smith, who witnessed the encounter between Carr and the police, testified at the motion to suppress hearing. She stated that she was outside in the parking lot of the apartment complex during the time she was on the phone with 911. She saw the blue Impala, thought her boyfriend had gotten into the vehicle, and reported that fact to the 911 operator. Shortly thereafter, however, the blue Impala pulled up next to Smith and she saw that her boyfriend was not in the car. According to Smith, she also relayed this information to dispatch.
Smith saw the police arrive at the apartment complex and stop the Impala, and she went to the scene of the traffic stop. Smith testified that as soon as the driver fled the scene with Wood in pursuit, Marks drew her gun, pulled Carr out of the Impala and onto the ground, telling him she would shoot him in the head if he moved. The officer then handcuffed Carr and placed him in the back of the patrol vehicle. According to Smith, Marks seized the guns from the Impala after she had removed Carr from the vehicle. Smith also testified that she tried to tell the police that the suspect was not in the Impala, but the officers “didn’t want to talk.” The officers never took a statement from Smith and she had to place a second 911 call to file a police report with respect to the domestic violence incident. [ii]
Carr was charged with possession of a firearm by a convicted felon. He filed a motion to suppress which was granted because the trial court held that officers unjustifiably escalated their encounter with Carr into an unconstitutional arrest. The state appealed the grant of the motion to suppress.
There were two issues on appeal. The first issue was whether Carr was unconstitutionally arrested when he was removed from the car, placed on the ground, handcuffed, and secured in a police car. The second issue was whether the search of the car was lawful under the Fourth Amendment.
At the outset, the court noted that initial stop of the Impala was justified based upon the information that was relayed from the victim to 911 and then to the responding officers.
As to the first issue regarding whether Carr was subject to an unlawful arrest, the court stated:
It is well established that police officers may conduct a brief stop of a vehicle and its occupants for the purpose of investigating suspected criminal activity, provided that the officers’ suspicions are based on specific information. See Taylor v. State, 296 Ga. App. 481, 482-483 (675 SE2d 504) (2009). Such a stop must be limited in time to that which is reasonably necessary to investigate the allegation that led to the stop, Bennett v. State, 285 Ga. App. 796, 798 (648 SE2d 126) (2007), and a detention that exceeds that time constitutes a de facto arrest. Grandberry v. State, 289 Ga. App. 534, 539 (2) (658 SE2d 161) (2008). Similarly, an investigatory stop escalates into a de facto arrest whenever the person stopped is “restrained to a degree associated with a formal arrest. …”(Citation and punctuation omitted.) Suluki v. State, 302 Ga. App. 735, 738 (1) (691 SE2d 626) (2010). For such an arrest to be constitutional, it must be based on probable cause, i.e., police must possess knowledge of objective facts and circumstances that would lead a reasonable officer to believe that the suspect has committed or is committing a crime. (Citation and punctuation omitted.) Minor v. State, 298 Ga. App. 391, 396 (1) (b) (680 SE2d 459) (2009). [iii] [emphasis added]
The court also noted that Officer Marks, the officer that handcuffed Carr, did not testify at the motion to suppress; rather, Officer Woods testified. Thus, there was no evidence in the record specifically as to what Officer Marks saw when she placed Carr on the ground and in handcuffs and then secured him in the police car.
The court then examined two cases upon which the state relied in its argument that Carr was not “under arrest” when he handcuffed and secured in the police car. First, the court examined Gray v. State [iv]. In that case, the court of appeals held that the police acted reasonably in handcuffing an armed robbery suspect. Regarding that case, the court stated:
The information known to the police at the time they encountered the suspect included the fact that footprints led from the crime scene to the suspect’s home; the suspect met the physical description of the perpetrator; and “the armed robbery had been an extremely violent one in which the victim had been threatened and beaten badly with a firearm.” We concluded that “[u]nder these circumstances, the means of the detention employed by the officers were reasonable and did not transform the investigatory detention into an arrest.” [v]
Second, the court examined Jackson v. State [vi]. Similarly, in Jackson, the court held that officers acted reasonably when they handcuffed an armed robbery suspect who was detained for questioning following a traffic stop. Regarding Jackson, the court stated:
Jackson was a suspect in three armed robberies and was believed to be ‘extremely violent,’ and [the officer] knew that the suspect ‘was going in shooting through the ceiling at people.’ Given these facts, we find [the officer’s] actions in handcuffing Jackson for safety purposes ‘reasonable under the circumstances, and therefore lawful as part of the investigatory stop.’ [vii]
After comparing the facts of Gray and Jackson to Carr’s case, the court held that officers did not act reasonably under the Fourth Amendment when Carr was handcuffed and placed in the back of a police car. Specifically, the court stated:
[T]he evidence that was presented failed to demonstrate that either Wood or Marks had a reasonable basis for believing that Carr was armed, dangerous, or otherwise a threat to the officers’ personal safety. There was no report that the perpetrator in the domestic violence incident was armed; Carr had cooperated fully with police; and Carr had no outstanding warrants. Morever, Carr did not match the description of the suspect given to police and the citizen who had telephoned for police assistance was on the scene, and she attempted to tell officers that neither of the men in the Impala was her assailant. Given the evidence, we cannot say that the trial court erred in holding that Marks’s decision to remove Carr from the Impala forcibly, handcuff him, and place him in the patrol car escalated the investigatory stop into a custodial arrest. [viii]
Further, because the court held that the arrest was unlawful, the subsequent search of the vehicle incident to arrest was also unlawful. Therefore, the court of appeals affirmed the grant of the motion to suppress.
It bears noting that the search was not justified as a “frisk” of the automobile for weapons because of insufficient evidence to indicate that Carr was armed and dangerous at the time he was removed from the car, handcuffed and secured in the back of the police car.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] A13A0651, 2013 Ga. App. LEXIS 465
[ii] Id. at 2-4
[iii] Id. at 5-6
[iv] 296 Ga. App. 878 (676 SE 2d 36)(2009)
[v] Carr at 9
[vi] 236 Ga. App. 492 (512 SE 2d 24)(1999)
[vii] Carr at 9
[viii] Id. at 10-11 (See Suluki, supra (holding that officers seeking to question an individual in conjunction with a murder investigation effected an unconstitutional arrest, rather than an investigatory detention, when they seized the man, placed him face down on the ground, and handcuffed him before questioning him; “it is the reasonable belief of an ordinary person under such circumstances, and not the subjective belief or intent of the officer, that determines whether an arrest has been effected”) (citation and punctuation omitted.)