FIRST DIVISION BARNES, P. J., MERCIER and BROWN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
January 7, 2020
In the Court of Appeals of Georgia
A19A2095. IN THE INTEREST OF C.B., A CHILD.
BARNES, Presiding Judge.
The State appeals from the trial court’s grant of C.B.’s motion to suppress. The
juvenile court found that the police officer’s investigatory stop of C.B. was not
supported by reasonable suspicion. The State argues that the totality of the
circumstances, including the smell of marijuana, provided sufficient reasonable
suspicion to justify an investigative stop. For the reasons set forth below, we affirm.
“On appeal from a ruling on a motion to suppress, we defer to the trial court’s
factual findings and credibility determinations, but review de novo the court’s
application of the law to the undisputed facts.” In Interest of K.H., 338 Ga. App. 486,
486 (790 SE2d 279) (2016) (punctuation omitted). The record reflects that at about 10:00 p.m., while driving on Highway 19 in
Glenwood, Georgia, a police officer saw a person, C.B., wearing a backpack and
walking on the side of the road. The officer knew that there had been numerous
break-ins within the last two weeks in Glenwood, close to where C.B. was walking.
The officer thought it was suspicious to be walking down the street with a backpack
at night in an area where break-ins had recently occurred, so he put on his car’s blue
lights and pulled over in front C.B. to ask C.B.’s name. After the officer got out of the
car, he immediately smelled alcohol on C.B.’s breath and then smelled the “odor of
marijuana on him.” When asked, C.B. would not give the officer his name. The
officer told C.B. to stay in front of his vehicle until he could get a patrol vehicle there,
but C.B. quickly left the scene. The officer followed C.B. in his car, and C.B.
eventually came back towards the car. When the officer attempted to put C.B. in
handcuffs, C.B. pushed back against the officer. C.B. was eventually placed in
handcuffs with the help of other officers who had arrived at the scene. When the
officers searched C.B.’s backpack, they found a grinder that contained marijuana
residue and a bottle of alcohol.
C.B. was charged with four counts of obstruction of an officer, possession of
less than an ounce of marijuana, possession and use of drug related objects, and
2 underage possession of alcohol. C.B. denied the allegations and moved to suppress
the evidence obtained from the encounter with the police officer. C.B. argued that the
officer did not have reasonable articulable suspicion that he was engaged in illegal
activities to justify stopping him. The juvenile court granted the motion to suppress,
concluding that the State did not provide a reasonable articulable suspicion for
detaining C.B. or probable cause for arresting C.B. As part of its order, the court
determined that because the officer had not established that he was qualified or
trained to detect the odor of marijuana, his “detection of an odor he believed to be
marijuana fails to provide the reasonable suspicion to justify the tier-two detention
of [C.B.].” The State now appeals.
In its single enumeration of error, the State argues that the juvenile court erred
in granting C.B.’s motion to suppress because the totality of the circumstances
provided sufficient reasonable suspicion to justify an investigative stop. We disagree.
“Supreme Court holdings sculpt out . . . three tiers of police-citizen encounters:
(1) communication between police and citizens involving no coercion or detention
and therefore without the compass of the Fourth Amendment, (2) brief seizures that
must be supported by reasonable suspicion, and (3) full-scale arrests that must be
supported by probable cause.” In the Interest of S.B., 207 Ga. App. 60, 61 (427 SE2d
3 52) (1993) (punctuation omitted). “In a first-tier encounter, a police officer may
approach an individual, 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
officer does not detain the citizen or create the impression that the citizen may not
leave.” Cash v. State, 337 Ga. App. 511, 514 (2) (786 SE2d 560) (2016) (punctuation
omited). “[O]nce a reasonable person no longer believes that he is free to leave, the
encounter becomes a second-tier detention requiring a showing of reasonable
suspicion.” Walker v. State, 314 Ga. App. 67, 70 (1) (722 SE2d 887) (2012). “To
meet the reasonable suspicion standard, the police must have, under the totality of the
circumstances, a particularized and objective basis for suspecting the person is
involved in criminal activity.” Id. (punctuation omitted).
We agree with the juvenile court that the officer’s initial interaction with C.B.
was a first-tier encounter. The officer pulled over to the side of the road to ask C.B.
for his name because of recent break-ins in the area. Even though the officer pulled
in front of C.B., there was still room for C.B. to walk past the car. “[G]iven the late
hour [and] the hazard presented by vehicles parked on the side of a dark highway,”
the use of the officer’s blue lights as he pulled over to the side of the road did not
4 necessarily raise the level of interaction, as a reasonable person would still feel free
to continue walking away from the officer. See Cash, 337 Ga. App. at 514-515 (2).
Once the officer told C.B. to stay in front of the car, however, C.B. was no
longer free to leave the scene and the interaction escalated to a second-tier encounter.
. See Walker, 314 Ga. App. at 70 (1). In order to briefly detain C.B., the officer was
required to have a particularized and objective basis for suspecting that C.B. was
involved in criminal activity. See id. The State argues that the officer had reasonable
suspicion based on the totality of the circumstances, including the location, the time
of night, C.B.’s refusal to identify himself, and the odor of alcohol and marijuana.
The State specifically contends that the juvenile court erred in its determination that
the State was required to provide evidence of the officer’s training and experience in
marijuana odor detection to establish reasonable suspicion.
We look first at whether the officer’s detection of the odor of marijuana on
C.B. can establish reasonable suspicion. We have determined that an officer’s
detection of marijuana odor may provide probable cause, if the officer shows that he
has been trained and has experience in detection of illegal drugs. State v. Folk, 238
Ga. App. 206, 209 (521 SE2d 194) (1999) (“a trained police officer’s perception of
the odor of burning marijuana, provided his ability to identify that odor is placed into
5 evidence, constitutes sufficient probable cause to support the warrantless search of
a vehicle”). See also State v. Kazmierczak, 331 Ga. App. 817, 822 (771 SE2d 473)
(2015) (to determine whether probable cause exists to issue a search warrant,
magistrate judge could consider whether “the officer was qualified to recognize the
odor based on his or her training and experience”); State v. Alford, 347 Ga. App. 208,
216 (3) (818 SE2d 668) (2018) (similar).
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FIRST DIVISION BARNES, P. J., MERCIER and BROWN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules
January 7, 2020
In the Court of Appeals of Georgia
A19A2095. IN THE INTEREST OF C.B., A CHILD.
BARNES, Presiding Judge.
The State appeals from the trial court’s grant of C.B.’s motion to suppress. The
juvenile court found that the police officer’s investigatory stop of C.B. was not
supported by reasonable suspicion. The State argues that the totality of the
circumstances, including the smell of marijuana, provided sufficient reasonable
suspicion to justify an investigative stop. For the reasons set forth below, we affirm.
“On appeal from a ruling on a motion to suppress, we defer to the trial court’s
factual findings and credibility determinations, but review de novo the court’s
application of the law to the undisputed facts.” In Interest of K.H., 338 Ga. App. 486,
486 (790 SE2d 279) (2016) (punctuation omitted). The record reflects that at about 10:00 p.m., while driving on Highway 19 in
Glenwood, Georgia, a police officer saw a person, C.B., wearing a backpack and
walking on the side of the road. The officer knew that there had been numerous
break-ins within the last two weeks in Glenwood, close to where C.B. was walking.
The officer thought it was suspicious to be walking down the street with a backpack
at night in an area where break-ins had recently occurred, so he put on his car’s blue
lights and pulled over in front C.B. to ask C.B.’s name. After the officer got out of the
car, he immediately smelled alcohol on C.B.’s breath and then smelled the “odor of
marijuana on him.” When asked, C.B. would not give the officer his name. The
officer told C.B. to stay in front of his vehicle until he could get a patrol vehicle there,
but C.B. quickly left the scene. The officer followed C.B. in his car, and C.B.
eventually came back towards the car. When the officer attempted to put C.B. in
handcuffs, C.B. pushed back against the officer. C.B. was eventually placed in
handcuffs with the help of other officers who had arrived at the scene. When the
officers searched C.B.’s backpack, they found a grinder that contained marijuana
residue and a bottle of alcohol.
C.B. was charged with four counts of obstruction of an officer, possession of
less than an ounce of marijuana, possession and use of drug related objects, and
2 underage possession of alcohol. C.B. denied the allegations and moved to suppress
the evidence obtained from the encounter with the police officer. C.B. argued that the
officer did not have reasonable articulable suspicion that he was engaged in illegal
activities to justify stopping him. The juvenile court granted the motion to suppress,
concluding that the State did not provide a reasonable articulable suspicion for
detaining C.B. or probable cause for arresting C.B. As part of its order, the court
determined that because the officer had not established that he was qualified or
trained to detect the odor of marijuana, his “detection of an odor he believed to be
marijuana fails to provide the reasonable suspicion to justify the tier-two detention
of [C.B.].” The State now appeals.
In its single enumeration of error, the State argues that the juvenile court erred
in granting C.B.’s motion to suppress because the totality of the circumstances
provided sufficient reasonable suspicion to justify an investigative stop. We disagree.
“Supreme Court holdings sculpt out . . . three tiers of police-citizen encounters:
(1) communication between police and citizens involving no coercion or detention
and therefore without the compass of the Fourth Amendment, (2) brief seizures that
must be supported by reasonable suspicion, and (3) full-scale arrests that must be
supported by probable cause.” In the Interest of S.B., 207 Ga. App. 60, 61 (427 SE2d
3 52) (1993) (punctuation omitted). “In a first-tier encounter, a police officer may
approach an individual, 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
officer does not detain the citizen or create the impression that the citizen may not
leave.” Cash v. State, 337 Ga. App. 511, 514 (2) (786 SE2d 560) (2016) (punctuation
omited). “[O]nce a reasonable person no longer believes that he is free to leave, the
encounter becomes a second-tier detention requiring a showing of reasonable
suspicion.” Walker v. State, 314 Ga. App. 67, 70 (1) (722 SE2d 887) (2012). “To
meet the reasonable suspicion standard, the police must have, under the totality of the
circumstances, a particularized and objective basis for suspecting the person is
involved in criminal activity.” Id. (punctuation omitted).
We agree with the juvenile court that the officer’s initial interaction with C.B.
was a first-tier encounter. The officer pulled over to the side of the road to ask C.B.
for his name because of recent break-ins in the area. Even though the officer pulled
in front of C.B., there was still room for C.B. to walk past the car. “[G]iven the late
hour [and] the hazard presented by vehicles parked on the side of a dark highway,”
the use of the officer’s blue lights as he pulled over to the side of the road did not
4 necessarily raise the level of interaction, as a reasonable person would still feel free
to continue walking away from the officer. See Cash, 337 Ga. App. at 514-515 (2).
Once the officer told C.B. to stay in front of the car, however, C.B. was no
longer free to leave the scene and the interaction escalated to a second-tier encounter.
. See Walker, 314 Ga. App. at 70 (1). In order to briefly detain C.B., the officer was
required to have a particularized and objective basis for suspecting that C.B. was
involved in criminal activity. See id. The State argues that the officer had reasonable
suspicion based on the totality of the circumstances, including the location, the time
of night, C.B.’s refusal to identify himself, and the odor of alcohol and marijuana.
The State specifically contends that the juvenile court erred in its determination that
the State was required to provide evidence of the officer’s training and experience in
marijuana odor detection to establish reasonable suspicion.
We look first at whether the officer’s detection of the odor of marijuana on
C.B. can establish reasonable suspicion. We have determined that an officer’s
detection of marijuana odor may provide probable cause, if the officer shows that he
has been trained and has experience in detection of illegal drugs. State v. Folk, 238
Ga. App. 206, 209 (521 SE2d 194) (1999) (“a trained police officer’s perception of
the odor of burning marijuana, provided his ability to identify that odor is placed into
5 evidence, constitutes sufficient probable cause to support the warrantless search of
a vehicle”). See also State v. Kazmierczak, 331 Ga. App. 817, 822 (771 SE2d 473)
(2015) (to determine whether probable cause exists to issue a search warrant,
magistrate judge could consider whether “the officer was qualified to recognize the
odor based on his or her training and experience”); State v. Alford, 347 Ga. App. 208,
216 (3) (818 SE2d 668) (2018) (similar).
We have also held that an officer’s detection of the odor of marijuana may
establish reasonable suspicion. Cole v. State, 254 Ga. App. 424, 425 (2) (562 SE2d
720) (2002) (citations omitted) (“the smell of marijuana coming from the interior of
[a] car was sufficient to create a reasonable suspicion that [a defendant] had
marijuana in the car [, and at] a minimum, this suspicion justified the officer’s
detention to investigate the possible criminal activity.”). But, in cases where we have
determined that an officer’s detection of the odor of marijuana established reasonable
suspicion, lack of evidence of the officer’s training and experience was not raised as
an issue on appeal. Consequently, our opinions in those cases do not specifically
identify whether evidence of the officer’s training and experience of marijuana odor
detection had been placed into evidence. See e.g., Allen v. State, 348 Ga. App. 595,
598 (1) (a) (824 SE2d 50) (2019) (an “officer obtained reasonable suspicion of
6 criminal conduct when he detected the odor of marijuana”); Myers v. State, 333 Ga.
App. 755, 758 (777 SE2d 44) (2015) (“The detection of the odor of marijuana
provided the officer with reasonable articulable suspicion to briefly detain [the
occupants].”).
Here, however, the question is squarely before us: must an officer testify as to
his training and experience in marijuana odor detection for his observance of the
smell of marijuana to constitute reasonable suspicion? We agree with the trial court
that the lack of evidence of the officer’s training and experience is fatal. Without such
evidence, we cannot determine whether the officer was acting on a subjective hunch
of what marijuana may smell like or an objective deduction founded on his previous
training and experience. See Taylor v. State, 342 Ga. App. 814, 816 (805 SE2d 131)
(2017) (“Although [reasonable] suspicion need not meet the higher standard of
probable cause, it must be more than a mere caprice or a hunch.”); Culpepper v. State,
312 Ga. App. 115, 119 (717 SE2d 698) (2011) (“when courts are considering the
reasonableness of an investigative detention, they properly defer to reasonable
inferences and deductions drawn by officers in light of their experience and
training”) (emphasis added); Walker, 314 Ga. App. at 73 (2) (“when analyzing
whether a person has been unconstitutionally seized, we are not bound by the
7 detaining officer’s subjective belief.”). Thus, without a foundation for the officer’s
ability to detect the odor of marijuana, his testimony regarding the odor of marijuana
does not support a reasonable suspicion of illegal activity.
Further, the other facts identified by the State do not support a reasonable
suspicion of illegal activity. None of C.B.’s described activities—walking on the side
of the road at night, being present in a high-crime area, wearing a backpack, and
smelling of alcohol—are a crime in and of themselves, “nor are they enough to make
an objective determination that [C.B.] was about to be engaged in criminal activity.”
Ewumi v. State, 315 Ga. App. 656, 661 (1) (727 SE2d 257) (2012) (punctuation
omitted) (“[i]t is well established that mere presence in an area of suspected crime is
not enough to support a reasonable, particularized suspicion that the person is
committing a crime.”). And, the mere refusal to identify oneself to an officer in a tier-
one encounter is not a crime and cannot establish reasonable suspicion of crime. Id.;
see also State v. Jones, 303 Ga. App. 337, 340 (693 SE2d 583) (2010) (a decision to
exercise the right to avoid a police officer “can hardly give rise to a reasonable
suspicion of criminal activity; otherwise, a citizen could never exercise his right to
avoid an officer without that officer then claiming that the exercise of that right gave
the officer a reasonable suspicion of criminal activity.”).
8 Finally, the officer’s detection of the smell of alcohol on C.B.’s breath does not
establish reasonable suspicion of criminal activity. The officer watched C.B. walking
and interacted with him but did not testify that C.B. acted intoxicated or that he was
obviously underage. See generally Baird v. State, 260 Ga. App. 661, 663 (1) (580
SE2d 650) (2003) (“Because individual responses to alcohol vary, the presence of
alcohol in a defendant’s body, by itself, does not support an inference that the
defendant was an impaired driver.”) (emphasis omitted). Drinking alcohol and
smelling of alcohol, in and of itself, does not establish reasonable suspicion of a
crime.
Therefore, looking at the totality of the circumstances, the State failed to
provide a particularized and objective basis for suspecting that C.B. was involved in
criminal activity at the moment that the officer told C.B. to stay in front of the car.
The juvenile court correctly granted the motion to suppress.
Judgment affirmed. Mercier and Brown, JJ., concur.