Fritzius v. State

¶1dissenting.

¶2This case is governed by the principles applied in Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981).

¶3First, in connection with the facts, it is notable what is not in evidence. There was no testimony that a reason for the stop was to connect one of the car occupants to drugs, if found, for which the officers had a warrant to search. There was no explanation of what the officer intended to do if one of the occupants was Fallaw. There was no testimony about the information that provided the basis for the warrant. Neither the warrant nor the affidavit is in the record. There was no testimony that either the officer who asked Officer Beveridge to stop the car, or Beveridge himself, had any reason to suspect that there would be contraband in the car.

¶4The State points to Bales v. State, 216 Ga. App. 856 (456 SE2d 112) (1995), and Setser v. State, 209 Ga. App. 57 (432 SE2d 652) (1993), in support of its position that the stop was founded on articulable suspicion. In Balesthe nonresident defendant was detained when he arrived at a residence where a warrant search was taking *648place and had already produced narcotics. In Setserthe defendant arrived at the site of a roadside automobile search and was there detained. The presence of the defendant at the search scene in these cases, and in Summers, presented a potential risk of harm to the officers, which was a noted justification in Summers. The court in Setser, supra at 58 (1), specifically referred to the officers’ interest in self-protection. The Balescourt did not do so but did note that the officers performed a weapons frisk. Additionally, in Bales“the police clearly had an articulable reason to suspect defendant of criminal activity, since the residence at which defendant arrived contained illegal drugs, and since a passenger in his vehicle was just arrested for possession of a controlled substance.” Bales, supra at 857.

¶5Risk of harm was not present here as the car was stopped two miles from the residence. Further, a detention away from the search scene creates a public stigma at the location which, when a defendant is detained at his residence, is already present because of the connection produced by proximity. State v. Crank, 212 Ga. App. 246, 249 (441 SE2d 531) (1994).

¶6The State also cites Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321) (1991), in which the appellant drove up to premises where a search warrant was about to be executed, stopped close enough to speak to a person there, then drove away. The court ruled that this, coupled with the fact that a warrant had been issued on probable cause to believe that drug activity was conducted on the premises, was sufficient for the court to justify the officer’s suspicion that the defendant driver was engaged in the suspected illegal activity. Id. at 204-205.

¶7There is no behavior of either Fallaw or Fritzius connecting them to the suspected drug activity. There is only the warrant that specified the residence, not the car in which they left the curtilage and drove away. Even if it is inferable that a resident of a search premises is engaged in the suspected activity, the officers did not know either of the occupants of the car was a resident. Compare State v. Deshon, 194 Ga. App. 425 (390 SE2d 651) (1990), where the police knew the resident as he drove away.1 Finding out whether one of the car occupants was Fallaw was the only stated reason for the stop. None of the State’s cases shows the vehicle stop here to be justified by the criteria analyzed in Summersor otherwise.

¶8Crank, supra, is more analogous. He contended his person and car were illegally seized. Id. at 248. A warrant was to be executed on Crank’s home. Because of what the police knew of Crank’s penchant for weapons and fighting with police officers, the officers decided to *649stop and detain Crank outside his home for safety reasons and to have him facilitate the search, but Crank was “two or three miles” from the residence before the officers stopped him. Id. at 248. There, as here, “[n]o magistrate had authorized a search of Crank or the car at that location,” and the seizure did not fit the parameters established by Summers. Crank, supra at 249. Rather, the stop and detention were illegal despite the fact that the officers were serving two of the interests recognized in Summers-, reducing the risk of harm and facilitating the search.

¶9This case, like Crank, differs from Summersin the great distance from the search premises at which the detention occurred. Although “the connection of an occupant” to the search warrant premises in Summers, supra at 703, made it “constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search his home,” (footnote omitted; emphasis supplied) id. at 705, Summersdoes not stand for the proposition that a person with such a connection to a search premises may be detained wherever he may be found. If the seizure in this case is constitutionally permitted, a resident could be seized whenever found, because of his connection with the premises, when a search warrant for the person’s residence is being executed.

¶10Most of the operable Summersfactors are not present. At the time of the stop, none of the officers even knew that one of the car occupants was a resident of the mobile home. The roadside stop was certainly more intrusive than the search as it pertained to passenger Fritzius. The stop produced a public stigma separate from any associated with the mobile home search. There was no evidence the police feared Fallaw or Fritzius would flee, nor is any inferable from the testimony; there is no suggestion that the men were aware of any police activity at the trailer before Officer Beveridge stopped their car. The distance dissipated any danger to officers conducting the search. Compare Allen v. Commonwealth of Virginia, 353 SE2d 162 (Va. Ct. App. 1987) (departing van stopped when met leaving residence on long driveway, but close enough to building for there to be concern of crossfire between van and residence). Nor is there any evidence that would allow the inference Fritzius and Fallaw were detained to facilitate the search; Officer Beveridge did not serve the warrant upon Fallaw, and the mobile home was actually entered while Officer Beveridge was trying to find the vehicle in which Fallaw and Fritzius were driving. Compare United States v. Cochran, 939 F2d 337 (6th Cir. 1991) (defendant’s car stopped “a short distance” after leaving residence so defendant could help officers gain peaceful entry and avoid guard dog).

¶11The only justification given for the stop was that the police wanted to know if Fallaw was in the car. That alone does not justify *650such a governmental intrusion into a person’s freedom of movement. In fact, the officer did not end the detention when the information he gained was that neither man was the named resident. The only apparent relationship the men had to the trailer was their departure from it. They took no actions suggestive of participation in drug trade or possession. Neither the warrant itself, nor whatever was the probable cause on which it was based, alone provided an articulable suspicion to justify the stop.

¶12The stipulation announced at trial adds nothing to the evidence concerning what information was available to the police prior to the stop. The stipulation was only that Officer Beveridge “received information that the defendant and the co-defendant who were driving in this defendant’s car were leaving a location for which they had a search warrant for drugs.” This merely identified the persons who were then known at trial to be William Fritzius and Henry Fallaw.

¶13The reason the court gave for denying the motion to suppress was that the police believed one of the persons in the car was Fallaw, “an occupant of the residence they had a warrant to search.” Even if that reason is supported by the evidence, it does not follow that the interception was therefore valid. The State did not explain what was to occur if the officer learned that one of the men was Henry Fallaw. “ ‘[Reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop.’ . . . [Cits.]” Jones v. State, 187 Ga. App. 421, 423 (370 SE2d 784) (1988). The State has not advanced any line of questioning that would advance a State interest which would validate the distant stop. The officer did not stop the car to find out if Fallaw was inside so the officer could inform him of the search in order to allow him to return and facilitate it if he chose to; not only was such an interest not articulated on the record or acted on at the scene, but the searching officers entered the trailer before Fallaw was stopped.

¶14If the police halted the car to identify Fallaw with the intention of detaining him until they had completed their search, again, a purpose the State did not articulate, that would not be a valid purpose but would amount to an arrest without probable cause. There was no warrant for his arrest. A propér analysis of the stop and detention in this case in accordance with the rationale of Michigan v. Summers, supra, compels the conclusion that the trial court erred.

¶16dissenting.

¶17I separately dissent because the majority creates new law from whole cloth with no legal or factual justification for so doing. Controlling legal authority permits police to detain a person found on the premises during the execution of a search warrant, but does not *651authorize police to stop and seize individuals not found on the premises. Michigan v. Summers, 452 U. S. 692 (101 SC 2587, 69 LE2d 340) (1981).

¶18Although the majority opinion purports to cloak itself in Summers, a careful reading of that case strips bare the majority’s legal predicate. By quoting only a snippet of Summers, the majority misconstrues Summersto hold that a search warrant for a place carries implicit or explicit authority to stop and seize a person not at the place specified by the search warrant. Compare Summers, 452 U. S. 692. What the Supreme Court actually determined was that the officers’ detention of Summers on his property was not violative of the Fourth Amendment because “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” (Footnotes omitted.) Id. at 705. The Supreme Court noted, “this argument could not justify the initial detention of respondent outside the premises described in the warrant.” (Emphasis supplied.) Id. at 694.

¶19The majority’s out-of-context quote from Summersis misleading and heads this Court down a slippery slope. Nowhere in Summersdid the Supreme Court hold that government officials are authorized to stop and search an individual located miles away from the premises being searched. By erroneously extending Summersto authorize an off-premises detention, the majority misses the essence of Summers, which analyzes the reasonableness of compelling an individual to remain on his property while a lawful search is conducted. Inasmuch as the Supreme Court’s opinion was narrowly tailored to permit the police to intercept and detain a resident on his premises, the majority’s expansion of the rule of Summersis unjustified.

¶20In this case, Fallaw, whose premises were being searched, was driving Fritzius’ vehicle. Neither Fritzius’ vehicle nor Fritzius was named in the search warrant for Fallaw’s trailer. The evidence Fritzius sought to suppress was obtained during a search of his vehicle. The State offered no valid grounds for stopping Fritzius’ vehicle, miles away from the trailer, asserting only that the police wanted to ascertain whether Fallaw was inside the car. Yet the State’s conduct far exceeded that asserted purpose. Summersand its progeny do not authorize the stop and search at issue here.

¶21Nor can the majority show the application of any exception to the warrant requirement. Under extremely rare circumstances under nonbinding federal law, a person may be detained as he leaves the premises subject to the search warrant where his presence is essential to the execution of the warrant. See United States v. Cochran, 939 F2d 337, 339 (6th Cir. 1991) (police could lawfully stop vehicle immediately after it exited the residence where defendant’s presence *652was crucial due to dangerous and menacing guard dog on premises). In this case, the presence of Fritzius, a nonresident of the trailer, was not essential for the safe execution of the warrant. Nor did the State claim that Fallaw’s presence was needed, inasmuch as agents were already in the process of conducting the search when Fallaw and Fritzius were detained.

¶22Notwithstanding the claim to the contrary, this case is controlled by State v. Crank, 212 Ga. App. 246 (441 SE2d 531) (1994), where we upheld the suppression of evidence found in Crank’s vehicle. In Crank, police had a warrant for Crank’s person, premises, and vehicles located on his premises. Id. at 247. Due to concern for police safety, because Crank was known to be armed at all times and had a known proclivity for fighting with police, police set up surveillance to intercept him a safe distance from his home. After Crank was stopped and detained two or three miles from his home, his vehicle, which had been specified in the search warrant, was impounded and searched. We affirmed the trial court’s grant of Crank’s motion to suppress because the seizure was not authorized by Summers, probable cause, or exigent circumstances.

¶23The facts in this case are even more compelling because here, unlike in Crank, the police had no search warrant for Fritzius or his vehicle. Because the State failed to show probable cause, exigent circumstances or any application of an exception to the Fourth Amendment, Fritzius’ motion to suppress the search of his vehicle should have been granted.

¶24In a circuitous effort to distinguish Crank, the majority mischaracterizes the record by stating that Fritzius challenged only the legality of the stop. Fritzius’ motion to suppress expressly provided, “The search and seizure complained of was a violation of the Fourth Amendment.” Fritzius’ motion demanded the suppression of evidence “obtained by virtue of the illegal search.” Fritzius’ appellate brief echoes this argument.

¶25Bales v. State, 216 Ga. App. 856 (456 SE2d 112) (1995) provides no support for the majority’s position. In that case, while the police were conducting a lawful search, Bales suddenly arrived in a vehicle at the premises being searched. Having discovered narcotics and being on the lookout for the occupant of the house, police had reasonable articulable suspicion to authorize a brief investigative stop of Bales to determine whether he was that person. Id. at 856-857.

¶26Here, the State cannot show the requisite justification for a brief investigatory stop. Burdette v. State, 210 Ga. App. 471, 472-473 (436 SE2d 502) (1993); see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979) (specific and articulable facts which taken together with rational inferences are needed to justify government’s intrusion). Ascertaining whether Fallaw was inside Fritzius’ vehicle, *653without more, cannot support the invasion of Fritzius’ rights. Such conduct was plainly an unlawful intrusion violative of the Fourth Amendment. Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994).

¶27Even if Summersdid apply to the facts in this case, the stop was improper. As the dissent correctly concludes, none of the Summersfactors justified the stop. Because this stop was outside the premises described in the search warrant, and the State could not show that Fallaw’s presence was essential to effectuate their search, it could not be justified by the warrant. See United States v. Cochran, 939 F2d at 339. Nor was there any evidence that the officers were at risk of harm from Fallaw or that the officers were preventing Fallaw’s flight. Summers, 462 U. S. at 702-703.

¶28Under the holding of the majority, law enforcement officials may now temporarily detain vehicles containing persons who recently departed premises subject to the execution of a search warrant. Outside of misapplying Summers, the majority cites absolutely no authority for expanding the scope of police power while constricting the safeguards of the Fourth Amendment. Defining the parameters of this new rule authorizing the “fresh pursuit” of a person who has left premises subject to a search warrant will doubtlessly generate endless controversy and countless motion hearings.