On February 13, 2023, the Eleventh Circuit Court of Appeals decided the United States v. Nicholl[i], which is instructive regarding the effect of officers charging a person with the wrong offense.  The relevant facts of Nicholl are as follows:

In the early morning of August 16, 2020, Nicholl was pulled over in his Dodge Challenger and arrested by Atlanta Police Department officers for “laying drag,” in violation of O.C.G.A. § 40-6-251, after he engaged the “line lock” feature of his car and burned out his rear tires while stopped in traffic. A search incident to arrest revealed a gun in Nicholl’s pocket. Nicholl was charged by indictment with possession of a firearm by a convicted felon. See 18 U.S.C. § 922(g)(1).

Nicholl moved to suppress the gun, arguing that it was the poisoned fruit of an unlawful traffic stop and arrest. A magistrate judge held an evidentiary hearing. The government called as witnesses Atlanta Officers Amasiah Toombs and Michael Doherty. Nicholl called Eric Shelton, an expert on drag racing.

Toombs testified that he was on patrol near Edgewood Avenue in downtown Atlanta when he heard the screeching sound of burning tires and saw a cloud of smoke coming down the road trailing an orange Challenger. According to Toombs, the Challenger would “burn out a little and then stop” multiple times while in westbound traffic on Edgewood. Similarly, Doherty testified that he saw the Challenger burn its tires while stopped in traffic, “move up a little bit,” and then “d[o] it again.” That area of Edgewood is a busy bar district, so there were other cars and a “lot of pedestrians” around at the time of these events.

Acting on standing orders to crack down on any reckless driving, Toombs pulled over the Challenger and arrested [*3]  Nicholl for “laying drag,” in violation of O.C.G.A. § 40-6-251. Toombs testified that, in his understanding, laying drag meant “just burning your tires to the point where it will actually leave a mark on the ground.” Nicholl told Toombs that he had activated the line lock feature on his car and did not know burning his tires was illegal. Toombs conducted a search incident to arrest and found a firearm in Nicholl’s pocket.

Nicholl’s expert Shelton testified that a line lock allows a driver to engage the front brakes independently of the rear brakes and do a “burnout.” Specifically, with the line lock engaged, stepping on the gas will cause the rear wheels to spin while the car is stationary, heating up and smoking through friction, which is useful in drag racing to improve tire adhesion just before a race. According to Shelton, the line lock was a standard feature in the Challenger, with prompts explaining how to use it.[ii]

Nicholl was ultimately charged with possession of a firearm by a convicted felon under federal law.  He filed a motion to suppress and argued that the officer lacked probable cause to arrest him for “laying drags” because his conduct of spinning his tires did not satisfy the elements of the crime for which he was charged.  The crime for which he was charged, OCGA § 40-6-251, requires that he drive his car in a zigzag or circular motion to meet the elements of the crime.  He argued that, since the gun was found during a search incident to arrest for a crime for which police lacked probable cause, the gun should be suppressed.

The district court held that the officers lacked probable cause for the charge of “laying drags” (OCGA § 40-6-251) but did have probable cause to believe that Nicholl committed the crime of reckless driving under Georgia law.  As such, the court held that the arrest was supported by probable cause.  The district court denied the motion to suppress.

Nichol pled guilty but reserved the right to appeal the denial of his motion to suppress.  He appealed the denial to the Eleventh Circuit Court of Appeals.

On appeal, the Eleventh Circuit first noted that an arrest that is not supported by probable cause violates the Fourth Amendment and evidence obtained in violation of the Fourth Amendment is not admissible against a defendant.  As such the court of appeals set out to determine if Nicholl’s arrest was supported by probable cause.

The court, in examining the legal principles relevant in this case, stated

A warrantless arrest without probable cause is an unreasonable seizure that violates the Fourth Amendment. Dist. of Columbia v. Wesby, 138 S. Ct. 577, 586, 199 L. Ed. 2d 453 (2018). To determine whether probable cause existed, we examine the “totality of the circumstances” facing the officers and ask “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to probable cause.” Id. (quotation marks omitted). Probable cause exists if a “reasonable officer could conclude that there was a substantial chance of criminal activity.” Washington v. Howard, 25 F.4th 891, 902 (11th Cir. 2022) (cleaned up). Incident to a valid arrest, officers may search the suspect’s person for weapons. Arizona v. Gant, 556 U.S. 332, 338-39, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).[iii]

The court then noted that there was not probable cause to arrest Nicholl for “laying drags” (OCGA § 40-6-251) because that statute prohibits “intentionally and unnecessarily causing a vehicle to move in a zigzag or circular course or to gyrate or spin around.”[iv]  Nicholls was stopping, holding the front brakes and spinning his tires causing them to smoke.

While this conduct did not amount to probable cause for the crime for which Nicholl was charged, if it provided probable cause for some other crime, the arrest would still be lawful and the search incident to arrest would still be lawful.  The court of appeals stated

[A]n arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause” for a warrantless arrest. Devenpeck v. Alford, 543 U.S. 146, 153, 125 S. Ct. 588, 160 L. Ed. 2d 537 (2004). But cf. Williams v. Aguirre, 965 F.3d 1147, 1162 (11th Cir. 2020) (holding that a different rule applies to arrests based on a warrant). So long as the circumstances known to the officers, viewed objectively, give probable cause to arrest for any crime, the arrest is constitutional even if probable cause was lacking as to the announced charges. Devenpeck, 543 U.S. at 153-55; Williams, 965 F.3d at 1162 (“[T]he only question relevant to the objective reasonableness of a seizure is whether probable cause for some crime exists.“).[v]

The court of appeals then noted that Georgia’s reckless driving statute, OCGA § 40-6-390(a), provides that “any person that drives any vehicle in reckless disregard for the safety of person or property commits the offense of reckless driving.”[vi]  The court also noted that

An officer who observes reckless driving is empowered to stop and arrest the driver. Draper v. Reynolds, 369 F.3d 1270, 1276 (11th Cir. 2004); Mackey v. State, 296 Ga. App. 675, 675 S.E.2d 567, 569 (Ga. Ct. App. 2009).[vii]

The court of appeals stated that the evidence provided supports the district court’s conclusion that Nicholl drove with “reckless disregard for the safety of persons in the area,” in violation of the reckless driving statute.  The court stated that even if an officer testified that he personally (subjectively) did not view the tire spinning as a significant safety risk, it was, when viewed objectively, a risk to the safety of people in the area.  Specifically, the court stated

Although some of the testimony described doing a line-lock burnout on a public street as merely unwise or a nuisance, not necessarily a safety danger, we must consider “the particular conditions on the street,” among other factors, when evaluating probable cause for reckless driving. Hughes, 659 S.E.2d at 847; see Wesby, 138 S. Ct. at 586. And the circumstances here include the presence of other traffic and “a lot of pedestrians” early in the morning in a busy bar district. A reasonable officer could conclude that Nicholl’s operation of his vehicle in this specific context—by creating a startling, screeching sound, the expectation of a car accelerating, and a large cloud of smoke in traffic—unnecessarily put others’ safety or property at risk by increasing the chances of a collision, even if no one was injured or in imminent danger.[viii]

The court also noted that, even if there is insufficient evidence to convict Nicholl, probable cause does not rise to the level of “proof beyond a reasonable doubt” which is needed for a conviction.  The court stated

But even assuming the evidence available to the officers would have been inadequate to convict Nicholl of reckless driving, the probable cause determination is entirely different from the standard for a conviction.” Wood v. Kesler, 323 F.3d 872, 880 n.12 (11th Cir. 2003). “[W]hile an arrest must stand on more than suspicion, the arresting officer need not have in hand evidence sufficient to obtain a conviction.”[ix]

Therefore, the court of appeals affirmed the denial of the motion to suppress, holding that the officers had probable cause to arrest Nicholl for reckless driving, thus the arrest was lawful and the search incident to arrest was lawful.

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] No. 22-12043 (11th Cir. Decided February 13, 2023 Non-argument)

[ii] Id. at 1-2

[iii] Id. at 6 (emphasis added)

[iv] Id. at 6-7

[v] Id. at 7 (emphasis added)

[vi] Id. at 7

[vii] Id. at 8 (emphasis added)

[viii] Id. at 8-9 (emphasis added)

[ix] Id. at 9-10 (emphasis added)

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