Vaughn v. State , 247 Ga. App. 368 ( 2000 )

Phipps, Judge,

concurring in part and dissenting in part.

I fully concur with the holding in Division 2, because the record does not demonstrate bias sufficient to require recusal of the trial judge. I respectfully dissent to the holding in Division 1, because I would find that the stop effected upon Vaughn was illegal.

The facts of this case do not give rise to the reasonable, articulable suspicion of criminal conduct which is necessary to justify a Terry stop.^{1 2}Webster’s description of Vaughn’s conduct before the stop was that he walked to the car, leaned against it, put his arm on the windowsill, placed his right hand inside the car, and, upon seeing the police car, immediately stood up, put his hand in his pocket, and walked away.

These facts are no more compelling than those this court and the Supreme Court of Georgia found insufficient in Chinnis v. State² and Hughes v. State,³ respectively. In Chinnis, at 2:00 a.m. in a high crime area of an African-American neighborhood, a police officer observed an African-American man leaning into the passenger’s window of a pickup truck that was occupied by two white men. When the officer’s car approached, the man stepped away from the truck and walked toward an apartment building. Subsequently, the officer stopped the truck and saw cocaine lying on the front seat. This court held that the stop was illegal because the officer lacked an objective basis for stopping the truck.⁴ The court noted that the officer “did not actually see a drug transaction take place.”⁵

In Hughes, an officer testified that at around 3:00 a.m. in a high crime, high drug activity area of an African-American neighborhood, he saw a white man drive slowly, pick up an African-American man at a corner where drug transactions were known to occur, drive circuitously through the neighborhood, and return to the area where the passenger had been picked up. The officer testified that this was a common method for drug transactions in the area and that, in his experience, most Caucasians who came into the area were looking for drugs or prostitutes. The officer stopped the vehicle. Noting that the officer had observed no hand-to-hand contact or attempted exchange of items between the men, the Supreme Court held that the officer lacked reasonable, articulable suspicion for the stop.⁶

As in Chinnis and Hughes, there is no testimony here that the officers saw any hand-to-hand contact or any appearance of an exchange between Vaughn and the person inside the vehicle. In the absence of that, there was nothing about Vaughn’s behavior that indicated that criminal activity was afoot. Webster had not seen Vaughn do anything which authorized him to stop Vaughn or require him to explain his behavior.

At the most, Vaughn’s behavior justified the officers in continuing to observe him closely or in attempting to initiate a noncoercive encounter with him.⁷ But the record clearly indicates that this stop did not occur in such a manner that “a reasonable person would [have felt] free to disregard [Webster] and go about his business.”⁸

The majority relies on Jackson v. State⁹ and Foster v. State.¹⁰ Foster is distinguishable. Though the court stated in Foster that an officer’s stop of Foster was justified under the Terry standard, it does not appear that a Terry stop occurred in that case. The officer merely pulled his vehicle alongside Foster, who was rapidly walking down the street, and asked to speak to him. Foster said he had not done anything, dropped a bag containing drugs, and ran. “Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual... as long as [they] do not convey a message that compliance with their requests is required.” ¹¹

In Jackson, police “ ‘had received a tremendous number of calls . . . about drug violations that were taking place’ ” on the specific street where Jackson was found seated in his truck conversing with a pedestrian. The officer testified that when he approached, “[Jackson] immediately pulled his hands down and reached toward the floorboard as if to hide something.”¹² Jackson’s actions appear to have been more remarkable than Vaughn’s. Moreover, to the extent that Jackson can be read as authority for the proposition that conduct such as Vaughn’s authorized the police to stop him, it should be disapproved. That reading allows for encroachment upon the basic freedoms of those who live in high crime areas. Therefore, I disagree with the majority’s reliance upon Jackson as authority for the proposition that Vaughn’s conduct authorized the police to stop him.

Decided December 1, 2000 Reconsideration denied December 15, 2000. Lynn Wilson, for appellant. Richard G. Milam, District Attorney, Paul E. Hemmann, Assistant District Attorney, for appellee.

This case is particularly disturbing because it is clear that Vaughn would not have been stopped had he been in a different part of town. At the suppression hearing, Webster testified that Vaughn’s conduct was suspicious because it occurred in the Tenth Street area, but that “[i]f we had been in the Giant Mart parking lot, no, I probably wouldn’t have thought that.” By affirming this case, what is this court saying about the freedom of persons who live in “high crime” areas?

Most of our cities and towns have “high crime, high drug activity” areas. Most of the people who live in these areas are as law-abiding as those who live far away. Is it particularly suspicious for them to be out at night, approach cars, lean on them, put their arms on the windowsills, place their hands in the cars, and walk away with their hands in their pockets when the police approach? It is not. They ought to be free to move about their neighborhood without having to explain their legal behavior. In America, common, everyday, legal conduct should never be used to justify a criminal investigation — not even a Terry stop — in any community. Often we are blinded to Fourth Amendment violations by the fruits of the search. In our zeal to solve the drug problem, however, if we forsake the protections of the Fourth Amendment, we will lose more than we gain.

The noble goal of curtailing the drug problem cannot justify law enforcement means which run afoul of the constitutionally protected right to be free from unreasonable searches and seizures.¹³ Even in a high crime, high drug activity area, persons have a right to walk to a car at 3:00 a.m., lean on it, talk to people inside it, and walk away with their hands in their pockets when they see a police car, without being suspected of criminal activity and subjected to an “investigatory stop.”

I would reverse the denial of the motion to suppress.

1 See Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968).

2 240 Ga. App. 518-519 (1) (523 SE2d 924) (1999).

3 269 Ga. 258-259 (497 SE2d 790) (1998).

4 240 Ga. App. at 519-520.

5 Id. at 519.

6 269 Ga. at 260-261.

7 See id. at 261.

8 (Punctuation omitted.) Florida v. Bostick, 501 U. S. 429, 434 (111 SC 2382, 115 LE2d 389) (1991) (quoting California v. Hodari D., 499 U. S. 621, 628 (111 SC 1547, 113 LE2d 690) (1991)); see also United States v. Mendenhall, 446 U. S. 544, 554 (100 SC 1870, 64 LE2d 497) (1980).

9 191 Ga. App. 439, 440 (1) (382 SE2d 177) (1989).

10 208 Ga. App. 699 (1) (431 SE2d 400) (1993).

11 (Punctuation omitted.) Pace v. State, 219 Ga. App. 583, 586 (466 SE2d 254) (1995) (quoting Florida v. Bostick, supra, 501 U. S. at 434-435).

12 191 Ga. App. at 440.

13 See City of Indianapolis v. Edmond, 531 U. S. 32 (121 SC 447, 148 LE2d 333) (2000).