Rashawn Eugene Runnells v. State ( 2020 )

FIRST DIVISION
BARNES, P. J.,
GOBEIL and PIPKIN, JJ.
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.
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THE TIMES SET BY OUR COURT RULES.
November 2, 2020
In the Court of Appeals of Georgia
A20A1154. RUNNELLS v. THE STATE.
GOBEIL, Judge.
A jury found Rashawn Eugene Runnells guilty of possession of
methamphetamine, possession of marijuana, possession of a firearm during the
commission of a felony, and possession of a firearm by a convicted felon. Runnells
appeals from his judgment of conviction and the denial of his motion for new trial,
arguing: (1) the trial court erred in denying Runnells’s motion to suppress evidence
gathered as the result of an investigative stop by police; (2) the evidence was
insufficient to support the verdict for possession of methamphetamine; (3) the trial
court erred by re-submitting the methamphetamine charge to the jury after a verdict
was rendered; and (4) Runnells received ineffective assistance of counsel. Because
we find that the trial court erred in denying Runnells’s motion to suppress, we reverse
his convictions without addressing his other claims of error.
Runnells was indicted for trafficking methamphetamine (Count 1); possession
of marijuana with intent to distribute (Count 2); possession of a firearm during the
commission of a felony (Count 3); and possession of a firearm by a convicted felon
(Count 4). His indictment was the result of evidence obtained after Sergeant Kristy
Llewellyn with the Gwinnett County Police Department conducted a brief
investigatory detention of Runnells in an apartment complex parking lot on March
20, 2018. Llewellyn suspected that Runnells had engaged in a drug transaction after
observing him for a short time, so she turned on her marked police car’s blue lights
and approached Runnells. Upon her approach to his parked vehicle, she smelled
marijuana and later saw marijuana debris in the floorboard of the vehicle. A search
of the vehicle uncovered methamphetamine, marijuana, a firearm, and other evidence
indicating the sale of narcotics.
Before trial, Runnells’s trial counsel filed a motion to suppress contesting the
admission of the evidence obtained from Sergeant Llewellyn’s search of the vehicle.
Specifically, Runnells asserted that (1) Llewellyn’s investigatory stop of him was
unlawful; (2) there was no particularized and objective basis for suspecting that
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Runnells was engaged in criminal activity prior to the stop; (3) there was insufficient
probable cause to search the trunk of the vehicle without obtaining consent; (4) there
was insufficient probable cause to arrest Runnells; and (5) Runnells was compelled
to give evidence against himself without being informed that he had a right to refuse
cooperation with Sergeant Llewellyn’s investigation.
Before the trial began, the trial court conducted a hearing at which Sergeant
Llewellyn testified regarding her decisions to approach Runnells’s vehicle and later
search the vehicle. The trial court ultimately denied the motion to suppress. At trial,
the jury found Runnells guilty of lesser-included offenses on Counts 1 and 2, namely,
possession of methamphetamine and possession of marijuana. Runnells was also
found guilty of Counts 3 and 4 as charged. This appeal followed.
1. On appeal, Runnells challenges the trial court’s denial of his motion to
suppress. Specifically, Runnells argues that Sergeant Llewellyn had no particularized
and objective basis to believe that he was committing any specific crime when she
initiated the investigative detention.
At the outset, the State argues that Runnells waived this argument. At the
suppression hearing, Runnells’s counsel told the trial court that the basis of the
motion to suppress was “that there was not probable cause to search the vehicle and
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there was not any lawful exception to search the vehicle.” Thus, the State argues that
by focusing only on the probable cause to search the vehicle at the hearing, Runnells
waived his challenge to the lawfulness of Sergeant Llewellyn’s investigatory stop.
We disagree.
“In challenging a trial court’s denial of a motion to suppress, a defendant may
not argue on appeal grounds that he did not argue (and obtain a ruling on) below.”
Massey v. State, 350 Ga. App. 427, 430 (2) (a) (827 SE2d 921) (2019) (citation and
punctuation omitted). Here, although Runnells’s counsel chose to focus on the search
of the vehicle at the hearing, the written motion to suppress included in two places
challenges to the lawfulness of Sergeant Llewellyn’s investigatory stop of Runnells,
including the specific argument that Llewellyn did not have an objective and
particularized suspicion to stop him. Additionally, both parties questioned Llewellyn
at the hearing about her initial observations of Runnells and her decision to approach
him. Although the trial court did not make specific findings regarding Llewellyn’s
reasonable suspicion to stop Runnells, it did note that the “circumstances surrounding
how Sergeant Llewellyn first came into contact with the vehicle” bolstered the
evidence supporting probable cause for the search. Further, the trial court’s ruling
denied Runnells’s motion to suppress in full, and was based on the arguments
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presented at the hearing “and others.” Finally, Runnells again raised the lawfulness
of Llewellyn’s stop in his amended motion for new trial, pointing to the written
motion to suppress as the foundation for his objection, and the trial court denied his
motion for new trial on the merits, rather than finding that Runnells had waived the
issue in the underlying proceedings.1
The State cites no cases to support its assertion that by failing to specifically
articulate the lawfulness of the stop during the hearing, Runnells waived this issue for
appeal. We find that where (1) Runnells raised the issue specifically in his written
motion, (2) the parties questioned Sergeant Llewellyn sufficient to create a record on
the issue, (3) the trial court’s ruling denied the motion to suppress in full and was
based on arguments presented at the hearing “and others,” and (4) the trial court did
not find a waiver when presented with the issue in the motion for new trial, Runnells
properly raised this argument below and received a ruling by the trial court sufficient
to allow for appellate review.2 Compare Smith v. State, 205 Ga. App. 848, 848-849
1
After his motion to suppress was denied, Runnells was not required to object
again at trial. See Kilgore v. State, 247 Ga. 70, 70-71 (274 SE2d 332) (1981).
2
We do note, however, that the focus of the motion to suppress hearing does
necessarily limit the record in this case, as Llewellyn was questioned only briefly
about her decision to detain and question Runnells. Our holding on the lawfulness of
the stop is therefore limited to the facts as they were developed in the record.
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(2) (424 SE2d 60) (1992) (appellant waived issue that was not included in written
motion to suppress, but did not waive issues that were “adequately raise[d]” in written
motion), Wingate v. State, 347 Ga. App. 341, 342 (1) (819 SE2d 502) (2018) (issue
not raised in written motion to suppress, but raised in post-hearing brief was properly
preserved for appellate review), with Bryant v. State, 326 Ga. App. 385, 387 (756
SE2d 621) (2014) (where appellant did not raise an argument “in his motion to
suppress or at the hearing on the motion,” issue was waived on appeal) (emphasis
supplied).
We now consider the merits of Runnells’s argument on appeal. “In reviewing
the grant or denial of a motion to suppress, we construe the evidence in a light most
favorable to upholding the trial court’s findings and judgment.” Adkinson v. State,
322 Ga. App. 1, 1 (743 SE2d 563) (2013) (citation and punctuation omitted). Here,
however, Sergeant Llewellyn was the only witness relevant to the issue before us, and
Runnells makes no dispute as to her credibility or the facts to which she testified, nor
did the trial court make any credibility determinations or factual findings to resolve
any conflicts in the evidence. Thus, “we conduct a de novo review of the trial court’s
application of law to the undisputed facts.” Hughes v. State, 269 Ga. 258, 259 (1)
(497 SE2d 790) (1998).
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Sergeant Llewellyn testified at the motion to suppress hearing that she had four
years’ experience on the narcotics squad of her police department, and had extensive
training in drug investigations. On the night of the incident, Llewellyn was
conducting a random patrol of an apartment complex in a “very high crime” area
known for drug activity and recent robberies. It was dark at the time. She noticed a
vehicle parked “oddly” behind several other parked vehicles. There was a Hispanic
male standing at the driver’s side door, who looked as if he was engaged in “some
sort of contact with the driver” of the oddly parked vehicle. When the Hispanic male
saw Llewellyn’s police car, he ran from the scene.
At that point, Llewellyn suspected that the man had engaged in some kind of
drug transaction or sale of stolen property with the driver of the vehicle. However,
Llewellyn did not see any actual hand-to-hand transaction or exchange between the
two. She moved her police car closer to the parked vehicle and noticed a passenger
in the vehicle. The driver, later identified as Runnells, got out of the car and popped
its hood, looking at the engine as if something was wrong with the car. The driver
went back into the driver’s seat, popped the trunk, and got out again and placed a
backpack into the trunk. Llewellyn then decided to engage the driver; she
“repositioned [her] car so that [she] could approach him.” Choosing to bypass a first-
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tier stop, she turned on her blue lights, and got out of her police car. As she
approached the vehicle, she noticed a strong smell of marijuana coming from the
vehicle.
After speaking to Runnells outside of the car, and while speaking to the
passenger who was still inside the car, Llewellyn observed small bits of marijuana
throughout the floorboard of the car. The passenger told Llewellyn she had just
finished smoking marijuana. At that point, Llewellyn decided that she was going to
search the vehicle based on her observations of marijuana. During the search,
Llewellyn discovered the evidence that led to the charges against Runnells.
In this case, the State concedes that Llewellyn’s interaction with Runnells
constituted a second-tier investigatory detention, and we agree. By positioning her
marked police car near Runnells’s vehicle and activating her blue lights before
approaching him, Runnells reasonably could have concluded that he was not free to
leave before speaking to Llewellyn.3 Compare O’Neal v. State, 273 Ga. App. 688,
3
Indeed, had Llewellyn not activated her police car’s blue lights, her approach
and questioning of Runnells would have been well within the permissible scope of
a first-tier investigation. See Rogers v. State, 206 Ga. App. 654, 656-657 (1) (426
SE2d 209) (1992) (police officer not required to have an articulable suspicion before
approaching stopped vehicle to speak to occupants, so long as encounter involves no
coercion or detention of citizens).
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689-690 (616 SE2d 479) (2005) (police car pulling up behind stopped vehicle and
activating blue lights and sirens before approaching stopped vehicle constituted a
second-tier encounter), and McKinley v. State, 213 Ga. App. 738, 739 (445 SE2d 828)
(1994) (unmarked police car pulling up next to stopped vehicle and activating blue
lights before officer directed suspect to get back into his vehicle constituted second-
tier encounter), with McClain v. State, 226 Ga. App. 714, 716-717 (1) (487 SE2d
471) (1997) (officers pulling up beside stopped vehicle in police car without
activating blue lights and approaching suspect to ask questions constituted a mere
first-tier interaction and did not require reasonable suspicion).
In a second-tier investigatory detention, “a police officer, even in the absence
of probable cause, may stop persons and detain them briefly, when the officer has a
particularized and objective basis for suspecting the persons are involved in criminal
activity.” State v. Banks, 223 Ga. App. 838, 839-840 (479 SE2d 168) (1996) (physical
precedent only), citing Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LE2d 889) (1968).
“A reasonable suspicion is more than a subjective, unparticularized suspicion or
hunch,” and “[t]he officer’s action must be justified by specific and articulable facts
which, taken together with rational inferences from those facts, reasonably warrant
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that intrusion.” Rogers v. State, 206 Ga. App. at 659 (3) (citations and punctuation
omitted).
Sergeant Llewellyn testified consistently at the suppression hearing and the
trial about her basis for stopping Runnells, which consisted of her knowledge that the
area was a high crime area, her observation of Runnells’s vehicle parked “oddly” in
the parking lot, and her observation of the Hispanic male standing at the driver’s side
door who then ran away from the vehicle after spotting her police car. We
acknowledge that these facts provided Llewellyn with a basis to increase her level of
suspicion of Runnells. However, whether that level of suspicion was enough to justify
a second-tier investigatory detention is a another question, and a close one.
On one hand, our Supreme Court and this Court have held that a police officer
witnessing a suspect fitting a pattern of criminal behavior in a high-crime area is not
sufficient to provide a reasonable, articulable suspicion to detain the suspect. See
Hughes v. State, 269 Ga. 258 at 260-261 (1) (second-tier detention unjustified and
denial of motion to suppress reversed where suspect was driving in high-crime area,
picked up man from street and continued driving slowly throughout neighborhood
back to where the passenger was picked up; officer suspected that passenger was
buying drugs from suspect based on pattern of behavior in neighborhood); Holmes
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v. State, 252 Ga. App. 286, 287-289 (556 SE2d 189) (2001) (second-tier detention
unjustified and trial court’s denial of motion to suppress reversed where suspect was
walking through parking lot known for drug activity, briefly stopped at the window
of a parked car, changed his walking direction after noticing the police, and appeared
nervous when approached by the police); Adkinson, 322 Ga. App. at 2-3 (second-tier
detention unjustified and trial court’s denial of motion to suppress reversed where
suspect was observed at a motel located in an area known for heavy drug activity;
suspect parked his vehicle, climbed the motel stairs, disappeared from view for a few
minutes, then came back down to his vehicle and drove off); Williams v. State, 327
Ga. App. 239, 244 (758 SE2d 141) (2014) (second tier detention unjustified and trial
court’s denial of motion to suppress reversed where suspect was observed entering
briefly and departing an apartment that was being surveilled as the location of
suspected drug sales; officers did not have a particularized suspicion that Williams
was engaged in wrongdoing at the time of the investigatory stop). In these cases,
although some additional observation of the suspects was warranted, the detentions
of the suspects were found to be unlawful, and, in all four cases, the orders of the trial
court finding otherwise were reversed.
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On the other hand, where a suspect was observed directly making a hand-to-
hand exchange with another individual, our Court has found sufficient justification
to warrant a second-tier detention. See Lambright v. State, 226 Ga. App. 424, 425-
427 (1) (487 SE2d 59) (1997) (noting that officer’s “became “articulable” the moment
he saw the hand-to-hand exchange” between suspect and third party). Further, where
suspects were observed making what an officer suspected were hand-to-hand drug
transactions, combined with some additional suspicious behavior from the suspect,
we have found investigatory detentions to be warranted. See State v. Preston, 348 Ga.
App. 662, 665 (824 SE2d 582) (2019) (second-tier detention was justified and trial
court’s order suppressing evidence was reversed where suspect was observed making
what an experienced officer believed to be multiple hand-to-hand drug transactions
with multiple individuals over a five-minute period; suspect also changed his
behavior after noticing police by moving his vehicle from where it was parked in
front of a gas station’s store to a gas pump to begin pumping gas); Thompson v. State,
230 Ga. App. 131, 132-133 (495 SE2d 607) (1998) (trial court’s denial of motion to
suppress affirmed where suspect was observed near another individual, engaged in
what an experienced officer suspected to be a drug transaction, and both the suspect
and the other individual left “skiddishly” after observing police; officer approached
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suspect in a first-tier encounter, where suspect gave suspicious answers to officer’s
questions before officer escalated the encounter to second-tier detention; this Court
specifically listed suspect’s suspicious behavior during first-tier encounter as part of
the basis for officer’s reasonable, articulable suspicion).
We conclude that the facts in Runnells’s case lie somewhere between the
Hughes/Adkinson line of cases and the Lambright/Preston line of cases. Although
Sergeant Llewellyn testified plainly that she did not observe any hand-to-hand
exchange between Runnells and the Hispanic male who later fled the scene, she
witnessed them engaged in some way, and she did suspect that some kind of
transaction had occurred. However, the record reflects that Llewellyn witnessed only
“some sort of contact” between the two men, and she did not specify whether she
observed any physical contact between them, versus observing mere communication.
Additionally, when pressed, Llewellyn could not specifically articulate her suspicion
about what she observed, explaining that she “figured there was some sort” of crime
taking place, either “an illegal drug transaction” or “possibly stolen property being
sold.”4
4
Llewellyn further equivocated about what type of criminal activity she
suspected had occurred, stating, “we have a lot of different crimes that could have
been occurring.”
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Based on the totality of the circumstances, we conclude that Sergeant
Llewellyn’s level of suspicion was more akin to the “pattern of behavior” level of
suspicion criticized in Hughes and Adkinson than the more specific and articulable
suspicion found in Lambright or Preston. As in Adkinson, Llewellyn inferred that
Runnells “fit a pattern of behavior” by being oddly parked in a high-crime area and
having a third party standing at his driver-side window who had some fear of the
police. 322 Ga. App. at 3. “In other words, the stop was not based upon a
particularized suspicion; rather, it was based upon [Runnells’s] conformity to a
general pattern of behavior.” Id. Accordingly, we conclude that, “[a]lthough
[Runnells’s] behavior might have justified closer observation, the officer lacked
sufficient information to believe that [Runnells], in particular, was engaged in illegal
activity so as to provide a reasonable, articulable suspicion to justify the stop.” Id.
Significant to our conclusion is also that Llewellyn made no allegation that she
saw Runnells commit a traffic violation or any other crime while observing him, she
was not patrolling the apartment complex as a part of any specific ongoing drug
investigation, and she was not looking for anyone matching Runnells’s or his
passenger’s description. See Adkinson, 322 Ga. App. at 3 (listing facts that could
potentially have provided officer with reasonable articulable suspicion). Further,
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although the Hispanic male seen interacting with Runnells at the vehicle ran when he
saw Llewellyn’s police car, Runnells himself “did not . . . attempt to avoid police
detection or act in any erratic manner.” Id.; Hughes, 269 Ga. at 260 (1) (noting that
suspicious behavior by suspect after observing police could be significant in
determining reasonable articulable suspicion).5 Thus, additional indicia of criminal
behavior that could have contributed to Llewellyn’s level of suspicion were not
present in this case.
For all of the reasons stated above, and based on a totality of the circumstances,
we conclude that Sergeant Llewellyn did not have sufficient justification for her
investigatory detention of Runnells. While Llewellyn’s suspicions turned out to be
warranted, when we look, as we must, at the basis of her suspicions prior to the
5
Llewellyn testified that, after the Hispanic male fled and she repositioned her
police car, she witnessed Runnells get out of the vehicle, look under the vehicle’s
hood, and retrieve something from inside the vehicle and place it in trunk. However,
she did not testify that she found this behavior suspicious or that it contributed to her
decision to approach Runnells’s vehicle. As noted above, this is one example of how
the focus of the motion to suppress hearing may have limited the record in this case.
Had Llewellyn been pressed more extensively on her reasons for detaining Runnells,
it is possible that she would have articulated additional reasons. However, we are
limited to the testimony as it was provided by Llewellyn. See Jorgensen v. State, 207
Ga. App. 545, 545-547 (428 SE2d 440) (1993) (considering the reasons articulated
by the officer to form basis for investigatory stop when reviewing denial of motion
to suppress)
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initiation of the detention, we find it insufficient to meet the “particularized and
objective” basis required. Rogers v. State, 206 Ga. App. at 659 (3) (that an officer’s
hunch that is later proved correct “is not sufficient to justify, ex post facto, a seizure
that was not objectively reasonable at its inception”) (citation and punctuation
omitted). Accordingly, the trial court erred in denying Runnells’s motion to suppress
the results of such detention and subsequent search, and we must reverse his
convictions on this basis.
2. Our holding in Division 1 renders it unnecessary to address Runnells’s
remaining enumerations of error.
Judgment reversed. Barnes, P. J., and Pipkin, J., concur.
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