June 11, 2013
The Fourth Amendment still has legs in the State of Georgia. And if a prosecutor tries to justify a search and seizure based on officer safety concerns, it might be a good idea to have the officer testify. On June 4, 2013, the Georgia Court of Appeals upheld the Trial Court’s suppression of an illegal search which yielded two firearms found inside a vehicle where Defendant Kentavious Carr was a passenger. Complainant Jhakeva Smith had previously called 911 to report that her boyfriend fled her apartment in a blue Impala after committing an act of domestic violence. As the police arrived to investigate, they observed two males inside a blue Impala driving towards them. Although neither the driver nor passenger, Mr. Carr, fit the physical description of Smith’s boyfriend, the police stopped them. Upon a request to exit the Impala, the driver fled and was never to be found. Mr. Carr was pulled out of the vehicle by Fulton County Officer Tracy Marks and told he’d be shot in the head if he moved. Mr. Carr was then cuffed and placed in the backseat of a patrol car. A firearm was discovered in the pocket of the passenger side door. Officer Marks did not testify at the motion to suppress the hearing.
Both sides agreed the officers were justified in stopping the Impala. The State tried to argue the legality of the search was rooted in ensuring the safety of Officer Marks. The Court held that “Marks’ concerns for her safety should have dissipated once she had Carr handcuffed and in the backseat of the patrol vehicle.” The Court also found it hard to justify Marks’ concern for her safety where she failed to testify at the hearing. In the absence of any evidence that Carr was armed, or was a threat to Marks, the search could not be justified on officer safety grounds. The Court didn’t stop there though. It further held that an illegal seizure occurred when Marks placed Mr. Carr in handcuffs as her “motives in restraining Carr” were unknown.
The opinion has a rather thorough analysis of the levels of police-citizen encounters, and how an investigatory stop can turn into a de facto arrest. For an instance where the Court held detention did not escalate into an arrest, see Jackson v. State, 236 Ga. App. 492 (1999).
Post by Eric Bernstein