Sams v. State

459 S.E.2d 551, 265 Ga. 534

• Court: Supreme Court of Georgia
• Decided: June 5, 1995
• Docket: S95A0447
• Status: Published

Opinions

Fletcher, Justice.

Melvin D. Sams was convicted of possession of cocaine with intent to distribute and sentenced to life without parole under OCGA § 17-10-7. He appeals, contending that the trial court erred in denying his motion to suppress. We reverse because the seizure of cocaine resulted from an unlawful investigatory stop and therefore, the trial court should have granted the motion to suppress.

At approximately 9:30 p.m. on December 21, 1993, an officer became suspicious of Sams when he observed Sams, whom he thought was a white male, in a predominantly black housing project. Sams, who is African-American, was walking on a sidewalk near a red Ford pickup truck, which was parked legally and created no traffic hazard. The officer followed Sams and eventually directed Sams to come to him. Sams did not comply. The officer tackled Sams, and immediately placed him under arrest for prowling and obstruction of an officer.

The officer found a matchbox containing what appeared to be cocaine residue in the pocket of Sams’ pants and jacket and $556.33 in cash. Nearby, the officer found a set of Ford vehicle keys. The officer and another officer used the Ford keys to unlock the red truck, which was parked a block from the point of arrest. Inside the truck was an opaque plastic bag, which contained a slab of crack cocaine and a small bag containing powdered cocaine.

1. The state contends that the officer had sufficient grounds to detain Sams for questioning and to arrest Sams and that the search of Sams following the arrest gave probable cause to believe the truck contained drugs. To justify a brief “Terry” stop, an officer must have an articulable, reasonable suspicion that the law is being violated.¹ The reasons justifying an investigatory stop need not rise to the level of probable cause, but must be more than a mere hunch and must not be arbitrary or harassing.^{2 3}If the officer lacked a reasonable, articulable suspicion to stop Sams, the search of Sams and the truck, resulting from that stop, was unlawful.

2. Sams was walking in a residential area at 9:30 at night when people are commonly in the area. The officer’s suspicions were raised, not by Sams’ behavior, but by Sams’ apparent race. A person’s race by itself does not establish a reasonable basis to believe criminal activity is afoot. Nor does the fact that Sams sought to avoid an encounter with the police establish a reasonable basis in these circumstances. Sams walked away from the officer in a way that the officer described as “normal.” The officer’s decision to order Sams to stop was based only on Sams apparent race and the fact that Sams walked away upon seeing the officer. These circumstances do not rise to the level required to justify a brief detention.®

Because the officer’s decision to detain Sams was not based on a reasonable, articulable suspicion, the resulting search of Sams and the truck were unwarranted and the trial court erred in failing to suppress the contents of the truck.

3. Finally, the state contends that the search of the truck may be justified as an inventory search. The state may inventory the contents of a car that has been lawfully impounded. In this case, however, the officer had no authority to impound the truck because the truck was legally parked and was not creating a traffic hazard.⁴

4. In light of our reversal, we need not address Sams’ other enumerations of error.⁵

Judgment reversed.

All the Justices concur, except Hunstein and Carley, JJ., who dissent.

1 Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); State v. Barnes, 210 Ga. App. 654 (436 SE2d 798) (1993).

2 Id.; State v. White, 197 Ga. App. 426, 427 (398 SE2d 778) (1990).

3 White, 197 Ga. App. at 427 (officers do not have general authority to detain anyone who exhibits merely furtive behavior).

4 See State v. Creel, 142 Ga. App. 158 (235 SE2d 628) (1977) (search of car parked one-half block from site of valid arrest not justified as inventory search where car was legally parked and created no traffic hazard).

5 This court retained jurisdiction of this case because of Sams’ constitutional attack on OCGA §§ 16-13-30 (d) and 17-10-7 based on United States v. Jackson, 390 U. S. 570 (88 SC 1209, 20 LE2d 138) (1968).