On July 9, 2019, the Court of Appeals of Georgia decided Chambers v. State[i], which serves as an excellent review of the law related to seizures of persons and searches of abandoned property. The relevant facts of Chambers, taken directly from the case, are as follows:
[T]he evidences show that in January 2009, an agent with the Oconee Drug Task Force received a tip from an unpaid confidential informant. The agent had known the informant for five years, the informant’s previous tips had resulted in ten to fifteen arrests, and the informant had never given the agent false information. The agent contacted members of local law enforcement and relayed the tip: Chambers was traveling to his residence in a gold Ford Explorer driven by his girlfriend and he would be carrying a large quantity of crack cocaine. The agent asked an officer with the Helena Police Department to be on the lookout for Chambers and to detain him. The officer drove to Chambers’ residence and observed Chambers’ girlfriend pull into the driveway in a gold Explorer, with Chambers in the passenger seat.
The officer approached the passenger side of the vehicle and told Chambers and his girlfriend to put their hands on the dash. Meanwhile, several teenagers gathered around the vehicle. Chambers reached into his pants, pulled out a gray cloth bag, threw the bag out the window of the vehicle to his son, and told him to run. The officer asked for the bag, and Chambers’ son handed it to the officer. The bag contained numerous pieces of suspected crack cocaine, three bags of suspected powder cocaine, and numerous small baggies. Subsequent testing showed the suspected narcotics to be 12.67 grams of cocaine…At trial, the agent testified that the street value of the drugs was approximately $1,267 and, based on his experience, Chambers did not possess the drugs for personal use. In his defense, Chambers testified and denied owning the bag. He further testified that he had given a ride to a man he knew, who had left the bag in his car, and explained that he threw the bag out of the window so that his son could throw it away.[ii]
Chambers filed a motion to suppress and argued that the officer lacked probable cause to stop him. The trial court denied the motion, and Chambers was convicted of possession of cocaine with intent to distribute under Georgia law. He appealed the denial of the motion to suppress.
On appeal, Chambers argued (1) that even if the officer had probable cause, he lacked exigent circumstances, and (2) the warrantless search of the bag violated the Fourth Amendment.
The court of appeals first examined whether the facts of the case were sufficient to establish probable cause such that the stop was reasonable under the Fourth Amendment. The court noted that the information provided came from an unpaid, confidential informant who, over five years, had provided tips that led to 10-15 arrests, and provided no false information. The informant’s information was that Chambers was en-route to his residence in a gold Ford Explorer driven by his girlfriend and in possession of a large quantity of crack cocaine. The drug task force agent who received the tip relayed this information to a local police department and an officer went to Chamber’s residence. When the officer arrived, he observed a gold Ford Explorer arrive at the residence. It was driven by Chamber’s girlfriend, with Chambers in the passenger seat, just as the informant had stated. The court of appeals stated
When coupled with corroboration by the personal observation of a police officer, a reliable informant’s tip is sufficient to establish probable cause for a warrantless search.” Wells v. State, 212 Ga. App. 60, 63 (2) (441 SE2d 460) (1994).[iii]
In this case, the officer that responded to the tip made observations that corroborated the information the informant provided. As such, the court of appeals held that probable cause existed to justify the stop.
Second, the court of appeals examined whether the warrantless search of the bag that contained the cocaine was reasonable under the Fourth Amendment. The court noted that, as the officer approached the Explorer, he ordered Chambers to put his hands on the dash of the vehicle. Chambers did not comply; rather, he reached into his pants, retrieved a gray, cloth bag, and threw the bag out the window of the vehicle to his son, as he told his son to “run.”
The court of appeals noted that there are two instances that cause a person to be “seized” under the Fourth Amendment. The first instance occurs when a person submits to an officer’s “show of authority.” The second instance occurs when an officer physically seizes a person. Specifically the court stated
As our Supreme Court has explained, “absent physical force,” an encounter with a police officer is not considered a seizure under the Fourth Amendment, unless there is “submission to the assertion of authority.” State v. Walker, 295 Ga. 888, 891 (764 SE2d 804) (2014). [iv]
In this case, at the time Chamber’s retrieved the bag and threw it out the vehicle window to his son, he had not been physically seized. Rather, the officer used a “show of authority” when he ordered Chambers to put his hands on the dash. However, Chambers did not submit to the show of authority by putting his hands on the dash; instead, he reached in his pants, retrieved the bag and threw it out the window to his son, in effect, abandoning the bag. The timing of these events is very important to the court’s analysis. This is because if an officer uses a show of authority to affect a seizure of a person but lacks probable cause or reasonable suspicion for the stop, and the person submits to the show of authority (and is thereby “seized”), and during the course of that unlawful “seizure,” abandons a bag, evidence found in the bag is subject to suppression under the exclusionary rule because the abandonment occurred during a seizure that was in violation of the Fourth Amendment. But, in Chambers, this is not the case. As the court of appeals stated
Because Chambers did not comply with the officer’s command, his abandonment of the bag was not the fruit of any seizure, and there was no need to suppress the bag. See id.; Sims v. State, 258 Ga. App. 662, 663 (574 SE2d 879) (2002) (affirming denial of motion to suppress when defendant threw away bag containing cocaine before submitting to officer’s request).[v]
Thus, even if the officer lacked probable cause to stop Chambers, the seizure and subsequent search of the bag did not violate the Fourth Amendment because Chambers abandoned the bag prior to submitting to the seizure of his person.
Third, the court of appeals examined whether the search of the bag was reasonable under the Fourth Amendment. As discussed above, Chambers abandoned the bag when he threw it out the window. The court of appeals stated
[W]hen the accused disavows ownership of or other legitimate possessory interest in the item searched, he has no legitimate expectation of privacy in that item, and thus a search violates no right.” Scandrett v. State, 244 Ga. App. 200, 201 (534 SE2d 908) (2000) (punctuation omitted). Chambers testified that the bag did not belong to him. As such, he had no legitimate expectation of privacy in it and lacked standing to challenge its search. See Duncan v. State, 346 Ga. App. 777, 784 (2) (815 SE2d 294) (2018) (holding that defendant had no legitimate expectation of privacy in bag and lacked standing to challenge search of bag when he contended that someone else owned bag); Scandrett, 244 Ga. App. at 201 (affirming denial of motion to suppress when defendant denied any possessory interest in the bag that was searched).[vi]
As such, the court of appeals affirmed the denial of the motion to suppress.
Practice Pointers
There are a few other exceptions to the search warrant requirement that could have applied in this case. Although these exceptions were not discussed by the court, they do bear discussion from a legal training standpoint.
First, the court of appeals held probable cause was present based on the informant’s tip and the corroboration by the responding officer. Probable cause would have justified arresting Chambers. He and the vehicle could have then been searched incident to arrest. Since the officer saw him throw the bag, immediately preceding his arrest, the bag would still be subject to a search incident to arrest.
Second, the same probable cause that authorized Chambers’ arrest would have authorized a warrantless search of the vehicle under the automobile exception. Since the bag was seen being thrown from the vehicle upon the officer’s approach, the bag would have been subject to warrantless search based on this exception also.
Third, even if the court would have held that the informant’s information only provided reasonable suspicion to detain Chambers, but not probable cause, the command to put his hands on the dash was still a lawful command, based on the circumstances. Rather than complying with the command, Chamber reached in his pants, pulled out a bag, threw it to his son and told his son to run. In Georgia, this provides the officer probable cause to arrest Chambers for Obstruction of Law Enforcement Officer under OCGA 16-10-24(a), because his conduct willfully obstructed a law enforcement officer engaged in the lawful performance of his official duties. This Obstruction arrest would then provide the lawful arrest needed to search the bag incident to a lawful arrest, as discussed in the first point above.
_________________________________
Citations
[i] No. 18-2923 (7th Cir. Decided July 9, 2019)
[ii] Id.
[iii] Id. (emphasis added)
[iv] Id. (emphasis added)
[v] Id. (emphasis added)
[vi] Id. (emphasis added)
