In State v. Richards, the Georgia Court of Appeals reversed the trial court’s grant of the defendant’s motion to suppress evidence, holding that the police officer’s request to see the defendant’s arms did not constitute a second-tier detention and seizure.
The record showed that the officer approached the defendant while he was sitting in his truck at a gas station which was known for drug trafficking. After starting a conversation with them, the officer asked the defendant and a passenger in the vehicle whether they used any illegal drugs. The defendant responded that he was on probation for drug charges. The officer then asked to see the defendant’s arms. The defendant pulled up his sleeves, and the officer observed track mark scars. The defendant consented to a search of the vehicle, and the officer found $250 in cash and a small bottle of ketamine in a duffel bag. The defendant initially said the duffel bag was his, but then recanted. The defendant and the passenger were arrested and read their Miranda rights.
The defendant later moved to suppress his statements and the evidence found in his truck, and the trial court granted the motion, holding that he was subjected to an unlawful seizure when the officer asked to see his arms to check for track marks. The trial court held that the seizure was not justified by reasonable articulable suspicion.
The U.S. Supreme Court has divided police encounters into three tiers for fourth amendment purposes. The first tier involves “communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment.” The second encompasses “brief seizures that must be supported by reasonable suspicion” and the third includes “full-scale arrests that must be supported by probable cause.” In a first-tier encounter, police may freely question the citizen, including asking for consent to perform a search, as long as they do not detain the citizen. A second-tier encounter arises when a reasonable person believes that he is not free to leave.
The Court of Appeals held that the officer’s request to see the defendant’s arms did not constitute a seizure, or second-tier encounter, for fourth amendment purposes. The Court noted that the officer was not threatening, did not use a show of force, and did not touch the defendant. The officer’s request that the defendant roll up his sleeves was not made in a manner that would cause the defendant to believe he was compelled to do so. The Court also noted that blocking a defendant’s exit can escalate an encounter to second-tier, but noted that the officer here was not blocking the defendant’s vehicle in any way.
Therefore, the Court of Appeals reversed the granting of the motion to suppress and remanded the case back to the trial court for further proceedings.
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