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Case law update (Georgia)
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Legal Information for Officers
Supreme Court Latest Opinions
(A must for Law Enforcers)
from "The Trooper Legal Update" (Feb.2003)
Cpl. Ericson Blows Defense Attorney
Away With Testimony
A stop in Wilkes County based on a seatbelt violation lead to a trafficking conviction thanks to great articulation of reasonable suspicion by Cpl. Brant Ericson (formerly of Post 17 Washington). Before asking for permission to search the vehicle, the Corporal testified he had the following suspicion: 1) the suspect turned his vehicle in a manner indicating he was intentionally trying to evade the Trooper; 2)there were cigars in the vehicle that, based on the Trooper's training/experience, were used to make "blunts" for marijuana smoking; 3) the suspect was nervous to the point that his hands were shaking and his heart beat was visible through his shirt: 4)the suspect repeated the Trooper's questions which, based on training, indicates the suspect is attempting to give misleading answers. A perfect case of articulating reasonable suspicion which provided a basis for asking to search the car or threatening to bring in drug dogs.
Evans, A03A1462(8/12/3).
Drug Dogs May Be Used at Roadblocks: Many defense attorneys are arguing that using a drug dog at a DUI/traffic safety roadblock turns it into an impermissible "drug" roadblock. The Court Of Appeals disagreed. The Court held that use of a drug dog at a roadblock does not make the roadblock an impermissible drug roadblock. A drug dog may be used on a vehicle stopped at a roadblock after an officer has reasonable suspicion of possible drug use/trafficking. The Court has yet to answer the question whether a drug dog may be used without reasonale suspicion on all vehicles at a roadblock. Harwood,A03A1284 (8/20/3).
According to an opinion letter issued by the DOJ and reported by the Prosecuting Attorney's Counsel, the 1949 treaty that allows foreign nationals to drive in the U.S. using the driver's license issued to them in their country, does not apply to those who enter the country illegally. "Therefore, illegal aliens residing in Georgia do not have the right to drive in Georgia even if they have valid license from their country of origin". The Georgia Prosecutor, Vol. III, Is. 1 July 2002.
A few interesting points :
Warning! Request for Independent Tests.
If a suspect asks for an independent test, be sure that steps are taken to try and provide the test if reasonably possible. The Courts are looking closely at this one. An independent test must be given even if the defendant has a refusal on the second sample, if you intend to use the results of the first. Schmidt, AO2A1645 (07-26-02). And a request for an independent test is valid, even if the request is made to someone other than the arresting officer. Braunecker, A02A0309 (06-07-02). In Braunecker, the defendant requested an independent test 30 minutes after the breath test was administered and he made his request to the booking officer who was taking the booking photo.
URINE SAMPLES BY MAIL
So long as the urine samples are properly sealed & labeled -- there is no legal requirement that the samples be hand delivered.
In addition, the law does not require that blood samples be taken within three hours of the driver operating a motor vehicle. (The law only requires that the prosecutor show that the driver was likely above the legal limit while driving or 3 hours after driving.) While blood samples should be taken as soon as reasonably possible, sometimes it is not reasonably possible to obtain the test within 3 hours. This alone is not a basis for failing to obtain sample. Allen, A02A1316 (07-29-02).
Information obtained from "Trooper Legal Update" (Feb. 23, 2003; and Oct. 2002.)
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About the only justification for a Terry Pat-Down search is officer safety. If you're not concerned for your safety, pat-down is not justified. If you are concerned for your safety, be sure you testify to that fact. Document concerns in your report.
Also, removal of objects following the Pat-Down must be based on officer belief that it feels like a possible weapon or it plainly feels like contraband.
Pritchett, A02A1243 (07-25-02)
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EXCEPTION TO WAIVER OF SOVEREIGN IMMUNITY INAPPLICABLE
Under the Georgia Tort Claims Act (“GTCA”), the State waives its sovereign immunity for the torts of state employees acting within the scope of their employment, subject to certain exceptions. One of the exceptions is that the State is not liable for losses resulting from the failure to provide, or the method of providing, law enforcement, police, or fire protection. In a recent decision, the Georgia Court of Appeals held that the exception for providing law enforcement did not apply in a case where a rural mail carrier was injured when her truck was struck by a Trooper’s patrol car. Under the facts, the Plaintiff’s mail truck was rear-ended by the Trooper’s patrol car while the Trooper was running radar to catch speeders. The Trooper had been using the mail truck as a cover to check oncoming traffic, a technique known as “blocking.” A flashing strobe light was on top of the mail truck and it was stopped. The Trooper did not notice the truck slow down, and by the time he realized the truck had stopped, he was unable to avoid hitting it at 50 to 60 miles per hour. The Plaintiff sued to recover for personal injuries. The Department of Public Safety moved to have the case dismissed asserting sovereign immunity under the law enforcement exception of the GTCA.
HOLDING: The Court held that sovereign immunity did not apply. The GTCA authorizes the application of sovereign immunity to the making of policy decisions and their implementation. The implementation of policy decisions are a form of “second-tier” decisions made by state employees and officers in response to a need for the immediate provision of police, law enforcement, or fire protection services. These decisions set out the procedure or process for providing the necessary services – the mode, plan, design, or system to be used to provide the service. Second-tier decisions, based on professional standards, expertise, and training, set forth methods of providing the police, law enforcement, or fire protection services in response to immediate needs and receive sovereign immunity. While the negligent acts of employees acting pursuant to policy are subject to sovereign immunity, the negligent acts of employees acting contrary to policy are not subject to sovereign immunity. The Court held that sovereign immunity was waived since the record contained evidence that the State Patrol Crash Review Board found that the accident was preventable, and that the Trooper did not operate his car in a manner consistent with policy and training. He followed too closely and failed to pay attention. Under the facts, the Trooper’s conduct was “simple, preventable negligence,” not a policy decision.
Department of Public Safety v. Davis,S.E.2d(2007), 2007 WL 4357754 (Ga.App.).1
From "The Trooper Legal Update"( Sept. 2003.)
Reasonable Suspicion Stop -- A vehicle in a parking space of a closed business at 3:00am with "no trespass" signs in an area known for burglaries that drives away when a police car approaches -- provides reasonable suspicion for a stop. Cox, A03A16256 (9/3/3)
Reasonable Suspicion Stop -- Detailed, particularized and articulated suspicion gathered from a surveillance of a drug suspect's apartment provides good reasonable suspicion to stop the vehicle of suspects leaving the apartment. Good stop. Flores,A03A0612 (7/16/3)
Reasonable Suspicion Not Needed -- Reasonable suspicion is not needed to approach a parked car and ask for ID or consent to search. "Police may approach citizens, ask for ID, ask for consent to search, and otherwise freely question the citizen without any basis or belief of criminal activity so long as the police do not detain the citizen or convey the message that the citizen may not leave." Carrera,A03A0730 (5/7/3).
Reasonable Suspicion Detention -- A suspect's flight in a high crime area upon seeing police provides reasonable suspicion supporting a stop, detention, pat down and questioning.
Illinois v Wardlow, 120 S.Ct. 673 (2000).
Reasonable Suspicion Search -- During a traffic stop the suspect was seen leaning at 45 degree angle toward the passenger seat with his arm extended toward the floor under the seat. Removal of suspect from vehicle and search under the seat was justified based on OFFICER SAFETY CONCERNS.
Random Tag Checks -- As part of her patrol duties, a Gwinnett County Police Department officer ran a random check of the Defendant’s tag. The check revealed that the vehicle was registered to a different vehicle. She stopped the Defendant’s vehicle and asked for his identification. The Defendant stated that he did not have any identification. The officer asked the Defendant to step out of the vehicle. She frisked him for weapons and then arrested him for driving without a license. While searching the vehicle incident to the arrest, the officer found a plastic bag containing pills. She also found a marijuana joint in the Defendant’s pocket. The Defendant moved to suppress the evidence seized from his person. He argued that the stop was illegal because the officer was not permitted to stop him solely based upon the improper tag. HOLDING: The motion to suppress the evidence was denied. A traffic stop is reasonable where the police have probable because to believe that a traffic violation has occurred. The officer was authorized to stop the Defendant for the traffic violation, and the stop was valid. Thompson v. State, __ S.E.2d __, 2007 WL 4374024 (Ga. App.).
Seizure of Contraband During Frisk of Passenger Permissible --A uniformed officer saw a vehicle make a U-turn (in front of a recently robbed bank), travel slowly, pull over to the shoulder of the road onto the grass, and then stop. Concerned about the driver and suspicious of the behavior, the officer gestured unsuccessfully to gain the attention of the driver. The officer parked his patrol car near the vehicle and initiated a traffic stop by activating his blue lights and approaching the vehicle. He asked the driver why he stopped. The driver appeared to be nervous and gave conflicting reasons for stopping. The officer asked for his license. The license check revealed that it was suspended. The officer arrested the driver and asked his passenger to exit the vehicle so that it could be searched incident to the arrest. The passenger exited the vehicle and admitted that he had a knife in his right pocket (when he was asked about whether he had any weapons). But, he refused to remove his hand from his pocket. When the officer attempted to remove it (to pat him down and retrieve the knife), he fled. The officer told the passenger to halt, but he continued to flee. After being chased, the passenger was arrested for obstruction. A search, incident to the arrest, revealed eight bags of cocaine and marijuana on his person. The knife was found on the ground next to the vehicle. He was convicted. He appealed his conviction arguing that the contraband found incident to his arrest should have been suppressed.
HOLDING: The officers had the right to pat down the passenger of the vehicle and search him for weapons since they had reason to believe he was armed. The passenger expressly admitted having a knife, and he
refused to remove his hand from the pocket he stated contained the knife (despite repeated police requests for him to do so). Under Terry v. Ohio, 392 U.S.1 (1968), a law enforcement officer, for his own protection and safety, may conduct a pat-down to find weapons that he reasonably believes or suspects are in the possession of the person he has accosted.
Johnson v. State, __ S.E.2d __, 2007 WL 4357410 (Ga. App.).
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Obstruction charges may be used to help insure officer safety and control an arrest situation. The officer does not have to wait for an act of violence or the threat of violence to support the charge. Obstruction may be charged based on a suspect's or bystander's refusal to follow an officer's lawful direction. The key to a good misdemeanor obstruction charge are: 1)- A genuine need to protect officer safety (the officer must demonstrate a genuine need to gain control of the situation); and 2)-clear notice to the individual that if they fail to follow officer's directions, they will be charged (make directions clear, repeat directions and then notifying the offender that if they fail to follow directives they will be charged.)
Offender refusing a directive to remain seated in the vehicle -- Arsenault, AO2A1448(08-18-02)
Passenger refusing a directive to remain seated in the vehicle -- Tuggle, A98A2466 (2-17-99); Carter, 229 Ga. Ap. 417 (1997).
Refusing directive to exit the vehicle --Johnson, 234 Ga. Ap. 218 (1998); Maryland, 519 U.S. 408 (1997).
Refusing to be quiet to the extent that it interferes with the officer conducting an investigation -- Carter, 222 Ga. Ap. 397 (1995).
Passenger trying to leave the scene (refusing to remain at location) -- Imperial, 218 Ga. Ap. 440 (1995).
-- ROADBLOCKS --
ROADBLOCK REMINDERS
۞ Factors that Courts consider in assessing the validity of a roadblock include whether:
1) the decision to implement the roadblock is made by supervisory personnel rather than officers in the field;
2) the supervisory officer making the decision has a valid primary purpose for the roadblock (other than merely seeking to uncover evidence of ordinary criminal wrongdoing);
3) the delay to motorists is minimal;
4) all vehicles are stopped as opposed to random stops;
5) the roadblock operation is well identified as a police checkpoint; and
6) the screening officer’s training and experience are sufficient to qualify him to initially determine which motorists should be given field tests for intoxication.
1 The Attorney General’s Office intends to file a
discretionary appeal of this decision because of its
implications.
۞ Evidence of the primary purpose of a roadblock may be either testimonial or written in Court, but the evidence must establish that
the supervisory officer:
1) decided to implement the roadblock,
2) decided when and where to implement it, and
3) had a valid primary purpose for it.
۞ Examples of valid primary purposes for roadblocks include checking drivers' licenses, checking insurance, checking seatbelt usage, and checking for impaired drivers.
When testifying concerning the purpose of a roadblocks, the primary purpose of the roadblock is traffic safety or enforcement of traffic laws. While other criminal laws may ultimately be enforced, you want to avoid the defense attorney's trick of trying to get you to say "the purpose is for general law enforcement" or the purpose is for "enforcement of laws generally." Testimony indicating that the purpose of a roadblock is to enforce criminal laws generally may result in the criminal going free. Ayers, A02A1433 (08-21-02).
