Law enforcement officers frequently work extra jobs or secondary employment while off duty to supplement their salaries. Often these extra jobs take the form of security and often these security jobs take place in apartment complexes that could be correctly characterized as “high crime areas.” On February 9, 2016, the Court of Appeals of Georgia decided Sims v. State [i], which serves as an excellent review concerning the law related to an off-duty police officer’s legal authority, as well as the three levels of officer/citizen encounters. Further, it also serves as an example of conduct that supports reasonable suspicion required to justify a law stop of a person. The relevant facts of Sims, taken directly from the case, are as follows:
Officer Cook, who was employed as a police officer with the Athens-Clarke County Police Department, testified that he also worked off-duty providing security for the University Oaks Apartments. The Apartments were located in a high crime area plagued by burglaries, robberies, and illegal drug sales, and the Apartments hired Cook and other police officers to provide off-duty security against these criminal activities. The off-duty officers worked for the Apartments in full police uniform and used their police patrol vehicles. The Apartments specifically asked the off-duty officers to look for non-residents on the Apartments property engaging in criminal activity. Officer Cook first encountered Sims on the Apartments property a few days prior to the present incident. While providing off-duty security, Cook investigated the smell of burning marijuana coming from one of the apartments. After the apartment resident admitted that marijuana was being smoked inside the apartment, Cook elected not to make arrests, but warned the resident and the other individuals in the apartment (including Sims who did not live there) that smoking marijuana was an illegal activity not allowed on the property. A few days later, while Cook was again providing off-duty security for the Apartments property, he repeatedly saw Sims and another person he did not recognize coming out from behind different buildings on the Apartments property over a period of time. At that point Officer Cook knew that Sims was not a resident of the Apartments; could not confirm that the other person was a resident; knew that Sims had recently been using marijuana on the property; knew of the problem with non-residents coming on the property to engage in criminal activity; and knew of recent burglaries and recent narcotics sales on the property. Given these facts, along with the unusual movement by Sims and the other person from behind building to building on the property, Cook suspected that Sims and the other person may be non-residents engaged in criminal activity on the property. To investigate this suspicion, Cook drove up to Sims and the other person in his patrol vehicle. Without exiting the vehicle, Cook rolled down the window, said to Sims, “I know you’re not a resident,” and asked the other person, “[D]o you live here, sir?” In response to this question, Sims told the other person not to answer, cursed at the officer, and both men walked away. Cook parked his patrol car, got out, followed behind the two men as they walked away, identified himself as a police officer hired by the Apartments, and attempted to stop the men. But the men refused to stop, continued to curse at the officer, and continued to walk away. At that point, Officer Cook called for backup, and a second police officer arrived, Officer Herring, who was patrolling on-duty in the area. When Herring arrived, he saw the two men walking away from Cook. Cook explained his suspicion to Herring and asked Herring to “see if you can talk some sense into them.” Herring walked ahead of the two men and tried to get them to stop and answer questions about what they were doing at the Apartments property, but neither man would stop or answer questions. The men continued to walk away and act in a belligerent fashion toward the officers. Officer Herring eventually said he “pretty much had enough,” reached for his handcuffs, and moved toward Sims. Sims said “You’re not going to put those on me,” and either ran or walked away at a fast pace to avoid the officer. At that point, Officer Herring caught and handcuffed Sims, who continued to physically resist the officers.
During a search incident to Sims’ arrest, the officers located marijuana. He was charged with obstruction of a law enforcement officer and possession of marijuana (less than an ounce) under Georgia law. Sims filed a motion to suppress and argued that that his detention was unlawful because the officers lacked reasonable suspicion to detain him and therefore the fruit of the stop and arrest should be suppressed. The trial court denied the motion and Sims appealed to the Court of Appeals of Georgia.
The primary issue on appeal was whether the off-duty officer had sufficient reasonable suspicion to justify a stop or investigative detention of Sims. If the court finds there was reasonable suspicion, then the obstruction arrest and search incident to that arrest would be lawful and the evidence would be admissible. If the court finds the stop was not supported by reasonable suspicion and Sims had a right to refuse to stop, then the obstruction arrest for refusal to stop would be unlawful, and the fruit of the search incident to that arrest must be suppressed.
At the outset, the court first noted that Officer Cook, who was off-duty, was still authorized to act in the capacity of a law enforcement officer while on his secondary employment. The court, in footnote 2, stated:
Even though Officer Cook was providing off-duty security for the Apartments during the events at issue, he was still at all times acting in the discharge of his official duties as a police officer. “[A]ll law enforcement officers have the general duty to enforce the law and maintain the peace. They carry this duty twenty-four hours a day, on and off duty.” Stryker v. State, 297 Ga. App. 493, 494 (677 SE2d 680) (2009) (Citation and punctuation omitted). [emphasis added]
The court next discussed the three levels or tiers of officer/citizens encounters. The first tier is a consensual encounter. Regarding consensual encounters the court stated
In a tier one encounter involving no coercion or detention, “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.” Id. (Citation and punctuation omitted). The touchstone of this kind of encounter is the right of the citizen not to answer the officer’s questions and to walk or even run away. Ewumi v. State, 315 Ga. App. 656, 658 (727 SE2d 257) (2012). [emphasis added]
Thus, in a consensual encounter, the court explained that a person has the legal right to refuse to answer questions and walk, or even run, away from the officers. The court also stated that the encounter between Officer Cook and Sims was not a Tier I, or consensual encounter.
The court then discussed the second tier of officer/citizen encounters, also known as an investigative detention or Terry stop. Regarding this type of encounter, the court stated:
The Fourth Amendment allows a police officer to stop persons . . . to investigate the officer’s reasonable suspicion “that the person stopped is, or is about to be, engaged in criminal activity.” United States v. Cortez, 449 U. S. 411, 417 (101 SC[ t] 90, 66 LE2d 621) (1981); Terry v. Ohio, 392 U. S. 1, 9 (88 SC[t] 1868, 20 LE2d 889) (1968); Vansant v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994). To establish the necessary reasonable suspicion to make an investigative stop, the totality of the circumstances must show that the officer had “specific and articulable facts which, taken together with rational inferences from those facts, . . . [provided] a particularized and objective basis for suspecting the particular person stopped of criminal activity.” (Punctuation omitted.) Vansant, supra at 320. Although an investigative stop cannot be based on an officer’s mere hunch that criminal activity is afoot, “[t]his process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” (Citations and punctuation omitted.) United States v. Arvizu, 534 U. S. 266, 273 (122 SC[t] 744, 151 LE2d 740) (2002). In considering the totality of the circumstances in each case, a court must avoid evaluating the facts in isolation. Even where each in a series of acts may be susceptible to an innocent explanation, taken together they may collectively amount to reasonable suspicion justifying an officer’s investigative stop. Id. at 274-275. Moreover, “[a] determination that reasonable suspicion exists . . . need not rule out the possibility of innocent conduct.” Id. at 277. [emphasis added]
In summary, the officer must be able to articulate specific facts that provide him with a reasonable suspicion that criminal activity has occurred or is about to occur. The officer is allowed to rely upon his training and experience and make inferences about the totality of the circumstances, and these observations may seem innocent to ordinary civilians. Further, the court noted that an officer does not have to rule out the possibility of an innocent explanation.
The court then examined the facts of Sims’ case to determine, in light of the above rules, whether Officer Cook, and later, the on-duty officers that arrived as back-up, had sufficient reasonable suspicion to justify a Tier II encounter with Sims. Regarding facts relevant to this determination, the court noted several important facts. First, Officer Cook observed Sims, who he knew was not a resident, and another person that he did not recognize as a resident, moving about in an abnormal manner behind various buildings on the apartment property. The court stated that:
Although it was certainly possible that the two men were engaged in innocent conduct, the officer also knew of Sims’s recent involvement with marijuana on the Apartments property, knew of continuing problems with non-residents engaged in criminal activity on the property, and knew of recent burglaries and illegal drug sales on the property.
Thus, the prior knowledge regarding Sims activities, along with the officer’s current observations, “supported reasonable inferences that led him to suspect that Sims and the person with him were engaged in criminal activity on the property.” Additionally, when Officer Cook approached Sims and the other person and attempted to ask whether the other person was a resident of the Apartments property, Sims told the other person not to answer the officer. The court found this to further add to the officer’s reasonable suspicion. The court thus held that:
Taken together, the circumstances were sufficient to give the officers a particularized and objective basis for reasonable suspicion to stop Sims and the other person to investigate.
The court then noted that, while the officers had sufficient reasonable suspicion to stop and detain Sims, the stop never occurred because of his refusal to submit to the officer’s commands to stop. The court then held that because Sims continued to refuse to submit to the officer’s lawful commands to stop, the officers had probable cause to arrest (a Tier III encounter) Sims for the crime of obstruction. [ii] Therefore, since the arrest was lawful, the search incident to arrest was also lawful and no suppression of evidence is warranted.
Thus, the court of appeals affirmed the denial of the motion to suppress.
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] A15A1836 (Ga. App. 2016)
[ii] see also McClary v. State, 292 Ga. App. 184, 187 (663 SE2d 809) (2008); Spence v. State, 295 Ga. App. 583, 586 (672 SE2d 538) (2009); State v. Quarterman, 333 Ga. App. 803 (777 SE2d 489) (2015).