GA: Statement to defendant “give me the drugs you just bought” was a command, not a request

Officer’s statement to defendant “give me the drugs you just bought” was a command, not a request. Hernandez-Espino v. State, 324 Ga. App. 849, 752 S.E.2d 10 (2013):

The officer in this case, who was uniformed and carrying a weapon, approached Hernandez-Espino and, after a brief conversation, ordered him to take a particular action: “give me the drugs you just bought.” The officer used those exact words. The evidence that he did so is uncontroverted. He put them in quotation marks in his police report. At the hearing he testified three times that those were his words. And the officer’s testimony went on to dispel any doubt that those words were an order. Asked on direct examination if he had, “testified that you asked him if he had just bought some drugs,” the officer interjected a correction: “No I didn’t ask him if he bought drugs. I told him to give me the drugs he just bought.” On cross he agreed to defense counsel’s characterization of those words as a demand. Defense counsel asked: “[T]hat’s when you make the demand, [‘]give me the drugs you just bought[‘]; correct?” The officer responded: “Correct.”

We therefore conclude that the officer’s words were not a request that Hernandez-Espino was free to ignore. The officer’s conduct and statement “would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Cutter, 274 Ga. App. at 592 (1) (citation omitted). Compare Owens v. State, 192 Ga. App. 671, 673-674 (1) (385 SE2d 761) (1989) (circumstances showed first-tier encounter where plain-clothed officers who were not displaying guns walked up beside airline passenger in airport and asked for, rather than demanded, his ticket and identification).