On May 23, 2013, the Court of Appeals of Georgia decided Daniels v. State [i] , which serves as an excellent review of the law as it pertains to the levels of officer / citizen encounters. The facts of Daniels are as follows:
[O]fficers were conducting a roadblock at about 10:30 p.m. They observed a red Pontiac approach within 75 yards of the roadblock before suddenly turning off of the road and into the parking lot of a closed motel. Believing the driver’s sudden turn into the parking lot to be suspicious, an officer drove to the parking lot to investigate. As he entered the parking lot, the officer observed Daniels get out of the vehicle from the driver’s side door and walk toward the door of the motel. The officer approached Daniels and asked what he was doing. Daniels responded that “he had come to get a room.” The officer told Daniels that the “motel had been shut down for some time.” He noticed that Daniels “appeared nervous,” had glassy, bloodshot eyes, and had a “very strong” odor of alcohol about him.
A second officer arrived on the scene, made the same observations of Daniels as the first officer, and had Daniels perform a breath test which registered positive for the presence of alcohol. Daniels was arrested for DUI and for driving with a suspended license. He consented to a state-administered breath test which revealed a blood-alcohol level of 0.196. During his encounter with the officers, Daniels did not deny that he was driving the vehicle and at no time claimed that his former girlfriend, who was riding in the front passenger seat, was driving. [ii]
Daniels was charged with DUI and traffic offenses, and he filed a motion to suppress. The trial court denied the motion. Daniels later appealed the denial of the motion to suppress to the Court of Appeals of Georgia.
On appeal, the issue before the court was whether the officer conducted a stop of Daniels when he pulled his car behind Daniels vehicle and, if so, whether reasonable suspicion justified the stop.
At the outset, it is important to remember that that there are three levels of officer/citizen encounters. The first is a consensual encounter, sometimes called a tier one encounter by the courts. In a tier one encounter, an officer does not require reasonable suspicion of criminal activity because the encounter is consensual. The key to this type of encounter, however, is that the officer cannot detain the citizen or create the impression that the citizen is not free to leave.
The second type of encounter is the investigative detention, commonly called a Terry Stop. Courts sometimes call this type of encounter a tier two encounter. Traffic stops are often classified as a type of investigative detention or TerryStop. For a tier two encounter to be legal under the Fourth Amendment, the officer must have reasonable suspicion that the person stop is involved in criminal activity or has committed a traffic offense.
The last type of officer/citizen encounter is an arrest. Arrests are sometimes referred to as tier three encounters by the courts and must be based upon probable cause.
Daniels argued on appeal that, because the officer pulled his car behind him, he was unable to leave. As such, the officer effectively engaged in a tier two encounter, or investigative detention without reasonable suspicion of criminal activity or a traffic offense.
Regarding the law applicable to Daniels’ argument, the court stated:
It is well established that an officer’s approach to a stopped vehicle and inquiry into the situation is not a `stop’ or `seizure’ but rather clearly falls within the realm of the first type of police-citizen encounter.” (Citation, punctuation and footnote omitted.) Bacallao v. State, 307 Ga.App. 539, 541 (705 S.E.2d 307) (2011). Here, the officer’s approach to Daniels was nothing more than a first-tier encounter… [iii]
The court considered it relevant that at the point the officer approached Daniels, he had already exited his vehicle and was at the door of the motel. As such, Daniels was not in his vehicle while it was blocked by the officer but rather walking toward the door of the motel. The court then held that the officer’s approach to Daniels was simply a tier one encounter and during that encounter the officer observed that he smelled strongly of alcohol, had bloodshot eyes. At this point, the officer had reasonable suspicion to investigate whether Daniels was DUI and to elevate the encounter to a tier two, or investigative detention.
Therefore, the court of appeals affirmed the denial of the motion to suppress.
Practice Pointers regarding Consensual Encounters
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Officers should not do anything that would lead a reasonable man to believe he was not free to go about his business and disregard the police.
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Officers should not use commands, orders, or act in an overbearing manner. In other words, officer should not use their police authority to compel a “stop.” If in a vehicle, the use of emergency equipment would likely render the encounter non-consensual.
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Officers should not block the citizen’s path. Remember, the citizen must be “free to go.” Note that in Daniels, while the facts indicate the officer’s car blocked Daniels’ car, he had already exited the car and was walking toward the motel entrance. As such, the officer’s vehicle position was less relevant to the initial inquiry. However, if Daniels had been in his vehicle, this may have prevented a finding of the encounter being consensual.
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Officers should not point weapons during consensual encounters. Obviously, if the officer needs to point his weapon to ensure his or her safety, then do so; however, just be aware that the encounter will likely no longer be viewed as consensual.
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Officers should not grab or lay hands on citizens during consensual encounters except the exception below.
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During a consensual encounter, officers may conduct a frisk or pat-down during a consensual encounter but only with the voluntary consent of the person.
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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.
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CITATIONS:
[i] A13A0241
[ii] Id.
[iii] Id.
