GA: Police directive to a man to show his hands was not a seizure

A police directive to a man coming from between two buildings to show his hands was not a seizure. Defendant immediately fled and abandoned items as he ran. State v. Walker, 2014 Ga. LEXIS 805 (October 20, 2014), rev’g 323 Ga. App. 558, 747 S.E.2d 51 (2013):

… The Court of Appeals then concluded that the facts of the encounter showed that “[w]hat the officer may have intended as a first-tier encounter … almost immediately escalated into a second-tier stop when the officer commanded Walker to remove his hands from his pockets; as such, the detention had to be supported by articulable suspicion. [Cit.]” Id. at 561.

In doing so, the Court of Appeals went astray; as it properly recognized in its citation to Terry, it is a seizure of a person that must be supported by articulable suspicion. And, it is clear from the facts of this case, that Walker was not seized within the meaning of the Fourth Amendment by Officer Adriance’s direction that he remove his hands from his pockets; a command from a law enforcement officer, alone, is not sufficient to constitute a seizure for purposes of the Fourth Amendment. Rather, under the Fourth Amendment, a seizure occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Terry, supra at 19 (n. 16). And, it is unquestioned that Officer Adriance did not apply any physical force to restrain Walker’s liberty until after Walker discarded the items he sought to suppress; he did not touch Walker or display a weapon, nor were other officers there such as might constitute a “threatening presence.” See United States v. Mendenhall, 446 U.S. 544, 554 (100 SCt 1870, 64 LE2d 497) (1980). Accordingly, whether Walker was seized before he abandoned the items depends upon whether he had been seized through a show of authority on Officer Adriance’s part; if he was not thus seized, his abandonment of the property was not the fruit of a seizure, and the motion to suppress the evidence was properly denied. California v. Hodari D., 499 U.S. 621, 629 (111 SCt 1547, 113 LE2d 690) (1991). See also Brown v. State, 239 Ga. App. 674, 676 (1) (522 SE2d 41) (1999) (“[D]efendant was not ‘seized’ when the cocaine was abandoned. He had not been touched by the officers; he did not submit to the officers’ “show of authority”—the flashing blue lights. Simply put, defendant was in a state of flight when the cocaine was discarded and it cannot be said that it was the fruit of an illegal arrest.”)

Walker contends that he was seized when Officer Adriance told him to remove his hands from his pockets, as this was an assertion of the officer’s authority. However, this ignores clear precedent from the United States Supreme Court that, absent physical force, for an encounter with a police officer to be considered a seizure under the Fourth Amendment, there must be “submission to the assertion of authority.” Id. at 626 (Emphasis in original.) See also Brendlin v. California, 551 U.S. 249, 254 (II) (A) (127 SCt 2400, 168 LE2d 132) (2007) (“A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned.”) (Emphasis added.) And, instead of submitting to Officer Adriance’s direction and removing his hands from his pockets, Walker ran. Although Walker describes the command to take his hands out of his pockets as a “second-tier” encounter, it was not; without his submission to the command, it was at most an attempted seizure, and “[a]ttempted seizures of a person are beyond the scope of the Fourth Amendment. [Cit.]” County of Sacramento v. Lewis, 523 U.S. 833, 845 (n. 7) (118 SCt 1708, 140 LE2d 1043) (1998).