State v. Kentavius Carr

• Court: Court of Appeals of Georgia
• Decided: June 4, 2013
• Docket: A13A0651
• Status: Published

Opinion

FIRST DIVISION ELLINGTON, C. J., PHIPPS, P. J., and BRANCH, J.

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/

June 4, 2013

In the Court of Appeals of Georgia A13A0651. THE STATE v. CARR.

B RANCH, Judge.

After a car in which he was a passenger was stopped by Fulton County police

officers, Kentavius Carr was arrested and subsequently indicted on a single count of

possession of a firearm by a convicted felon.1 Carr moved to suppress the evidence

seized during a police search of the automobile in which he had been riding, arguing

that the search resulted from his illegal detention or arrest. The trial court granted that

motion and the State now appeals from that order. We find no error and affirm.

In reviewing a trial court’s ruling on a motion to suppress, “we must construe

the evidence most favorably to uphold the findings and judgment of the trial court,

and that court’s findings as to disputed facts and credibility must be adopted unless

1 OCGA § 16-11-131. clearly erroneous.” State v. Able, ___ Ga. App. ___ (Case No. A13A0653, decided

April 24, 2013) (footnote and punctuation omitted). We review de novo, however, the

trial court’s application of the law to the facts. Id.

Viewed in the light most favorable to the trial court’s judgment, the record

shows that on March 30, 2012, Jhakeva Smith placed a 911 call to report an act of

domestic violence committed against her by her boyfriend. Smith, who remained on

the phone with dispatch as she waited for police, gave the 911 operator a description

of the suspect and the clothes he was wearing. Officers Lance Wood and Tracy Marks

of the Fulton County Police Department responded to the call.2 As the officers pulled

into the apartment complex where Smith lived, dispatch informed them that the victim

had reported the suspect was riding in a blue Impala. The officers saw a blue Impala

driving towards them and, based on the information they had just received, they

stopped the vehicle.

There were two men in the Impala, with Carr being the passenger. Wood

acknowledged that he had been given a description of the suspect and his clothing, and

that neither man in the car “fit the description of the suspect [police] were looking

2 Officer Wood testified at the motion to suppress hearing; Officer Marks did not.

2 for.” The officers nevertheless asked Carr and the driver of the Impala for their

identification, and each man produced a driver’s license. Wood then moved to an area

behind the Impala where he ran a check on both licenses; each license eventually

returned with no outstanding warrants.

While Wood was running the license check, Marks opened the passenger door

of the Impala. When she did so, the driver of the Impala exited the car and fled from

the scene. Wood chased the driver but was unable to apprehend him. By the time

Wood returned to the Impala, Marks had removed Carr from the automobile,

handcuffed him, and placed him in the back of the patrol car. Marks informed Wood

that she had found two guns in the Impala, one in the pocket on the driver’s door and

one in the pocket on the passenger’s door. The officers ran the identification numbers

on the weapons and learned that the gun found on the passenger side of the car was

stolen. At that point, Carr was formally placed under arrest for theft by receiving.

Smith, who witnessed the encounter between Carr and the police, testified at the

motion to suppress hearing. She stated that she was outside in the parking lot of the

apartment complex during the time she was on the phone with 911. She saw the blue

Impala, thought her boyfriend had gotten into the vehicle, and reported that fact to the

911 operator. Shortly thereafter, however, the blue Impala pulled up next to Smith and

3 she saw that her boyfriend was not in the car. According to Smith, she also relayed

this information to dispatch.

Smith saw the police arrive at the apartment complex and stop the Impala, and

she went to the scene of the traffic stop. Smith testified that as soon as the driver fled

the scene with Wood in pursuit, Marks drew her gun, pulled Carr out of the Impala

and onto the ground, telling him she would shoot him in the head if he moved. The

officer then handcuffed Carr and placed him in the back of the patrol vehicle.

According to Smith, Marks seized the guns from the Impala after she had removed

Carr from the vehicle. Smith also testified that she tried to tell the police that the

suspect was not in the Impala, but the officers “didn’t want to talk.” The officers never

took a statement from Smith and she had to place a second 911 call to file a police

report with respect to the domestic violence incident.

Following the hearing, the trial court granted Carr’s motion to suppress the

evidence seized during the police search of the Impala. The court found that the

officers had a reasonable basis to stop the automobile and conduct a brief investigative

inquiry. Noting that Carr did not match the description of the suspect and had

cooperated fully with police, and that there were no outstanding warrants on him, the

4 court further found that police unjustifiably escalated their encounter with Carr into

an unconstitutional arrest. The State now appeals from that ruling.

In its brief, the State argues that the trial court erred in finding that Marks’s

conduct with respect to Carr constituted an unlawful arrest, because Marks was acting

in the interest of officer safety and, given the circumstances, her conduct was

reasonable. This argument is without merit.

It is well established that police officers may conduct a brief stop of a vehicle

and its occupants for the purpose of investigating suspected criminal activity, provided

that the officers’ suspicions are based on specific information.3 See Taylor v. State,

296 Ga. App. 481, 482-483 (675 SE2d 504) (2009). Such a stop must be limited in

time to that which is reasonably necessary to investigate the allegation that led to the

stop, Bennett v. State, 285 Ga. App. 796, 798 (648 SE2d 126) (2007), and a detention

that exceeds that time constitutes a de facto arrest. Grandberry v. State, 289 Ga. App.

534, 539 (2) (658 SE2d 161) (2008). Similarly, an investigatory stop escalates into a

3 “There are three tiers of police-citizen encounters . . . . First-tier encounters are consensual communications between police and citizens and involve no coercion or detention; second-tier encounters, which must be supported by reasonable suspicion, are brief stops done for the purpose of investigating suspected criminal activity; and third-tier encounters are actual or de facto arrests and, accordingly, must be supported by probable cause.” Thomas v. State, 301 Ga. App. 198, 200 (1) (687 SE2d 203) (2009) (citations omitted).

5 de facto arrest whenever the person stopped is “restrained to a degree associated with

a formal arrest . . . .”(Citation and punctuation omitted.) Suluki v. State, 302 Ga. App.

735, 738 (1) (691 SE2d 626) (2010). For such an arrest to be constitutional, it must

be based on probable cause , i.e., police must possess knowledge of objective facts

and circumstances that would lead a reasonable officer to believe that the suspect has

committed or is committing a crime. (Citation and punctuation omitted.) Minor v.

State, 298 Ga. App. 391, 396 (1) (b) (680 SE2d 459) (2009).

On appeal, neither party disputes that, based upon the information available to

them, the police were justified in stopping the Impala and questioning its occupants.

Given this fact, the State points to our case law holding that during an investigatory

traffic stop officers may take reasonable steps to insure their own safety. See Rogue

v. State, 311 Ga. App. 421, 423-424 (715 SE2d 814) (2011) (to protect himself, an

officer may frisk the occupant of an automobile that is the subject of an investigatory

stop, provided he has a reasonable belief “that the person . . . is armed and

dangerous”) (punctuation and footnote omitted.) Gray v. State, 296 Ga. App. 878, 880

(1) (676 SE2d 36) (2009) (“in sufficiently dangerous circumstances, officers may

handcuff a suspect as part of an investigatory detention without transforming the

detention into a de facto arrest”) (citation omitted). The State argues that by

6 handcuffing Carr, Banks was acting only to protect officer safety and that this conduct

must therefore be viewed as part of the constitutional investigatory stop, rather than

an arrest. We disagree.

First, we note that even assuming the State’s argument about the officers’ safety

had merit in this case, it does not address the subject of the motion to suppress, which

was the illegal search of the Impala. Marks’ concerns for her safety should have

dissipated once she had Carr handcuffed and in the back of the patrol vehicle. In other

words, we fail to see how her subsequent search of the Impala, during which she

found the weapon at issue, was motivated by concern for officer safety.

Due to Marks’s failure to testify, however, there is no evidence in the record

that she had concern for her safety. Accordingly, we find that, under the circumstances

of this case and the evidence contained in the record, Marks’s decision to place Carr

in handcuffs resulted in an unconstitutional seizure of his person. When analyzing

whether a defendant has been seized in violation of the Fourth Amendment, “the

touchstone of our inquiry is the reasonableness of the officer’s conduct, which is

measured in objective terms by examining the totality of the circumstances.”(Footnote

omitted.) Young v. State, 310 Ga. App. 270, 273 (712 SE2d 652) (2011). See also

Bennett, supra. Thus, in Gray, supra, we held that police acted reasonably in

7 handcuffing a suspect whom they were investigating as the likely perpetrator of an

armed robbery. Id at 880 (1). The information known to the police at the time they

encountered the suspect included the fact that footprints led from the crime scene to

the suspect’s home; the suspect met the physical description of the perpetrator; and

“the armed robbery had been an extremely violent one in which the victim had been

threatened and beaten badly with a firearm.” Id. We concluded that “[u]nder these

circumstances, the means of the detention employed by the officers were reasonable

and did not transform the investigatory detention into an arrest.” Id. Similarly, in

Jackson v. State, 236 Ga. App. 492 (512 SE2d 24) (1999), we held that an officer’s

decision to handcuff an armed robbery suspect, who was detained for questioning

following a traffic stop, was reasonable under the circumstances. We explained:

Jackson was a suspect in three armed robberies and was believed to be ‘extremely violent,’ and [the officer] knew that the suspect ‘was going in shooting through the ceiling at people.’ Given these facts, we find [the officer’s] actions in handcuffing Jackson for safety purposes ‘reasonable under the circumstances, and therefore lawful as part of the investigatory stop.’

Id. at 495 (2). (Citation omitted; emphasis supplied.)

8 Unlike the officers in Gray and Jones, Marks did not testify at the motion to

suppress hearing and we therefore have no testimony as to her motives in restraining

Carr. And the evidence that was presented failed to demonstrate that either Wood or

Marks had a reasonable basis for believing that Carr was armed, dangerous, or

otherwise a threat to the officers’ personal safety. There was no report that the

perpetrator in the domestic violence incident was armed; Carr had cooperated fully

with police; and Carr had no outstanding warrants. Morever, Carr did not match the

description of the suspect given to police and the citizen who had telephoned for

police assistance was on the scene, and she attempted to tell officers that neither of the

men in the Impala was her assailant. Given the evidence, we cannot say that the trial

court erred in holding that Marks’s decision to remove Carr from the Impala forcibly,

handcuff him, and place him in the patrol car escalated the investigatory stop into a

custodial arrest. See Suluki, supra (holding that officers seeking to question an

individual in conjunction with a murder investigation effected an unconstitutional

arrest, rather than an investigatory detention, when they seized the man, placed him

face down on the ground, and handcuffed him before questioning him; “it is the

reasonable belief of an ordinary person under such circumstances, and not the

subjective belief or intent of the officer, that determines whether an arrest has been

9 effected”) (citation and punctuation omitted.) And because there is insufficient

evidence to establish that the officers had probable cause to arrest Carr, the arrest and,

therefore, the search of the Impala incident to that arrest were unconstitutional.

Accordingly, the trial court did not err in granting the motion to suppress. See Minor,

supra at 396 (1) (b) (“[t]he existence of probable cause must be measured by current

knowledge, i.e., at the moment the arrest is made and not in hindsight”) (citation and

punctuation omitted).

Judgment affirmed. Ellington, C. J., and Phipps, P. J., concur.