11^th Circuit Court of Appeals

OFFICER HAD PROBABLE CAUSE TO SUSPECT A WINDOW TINT VIOLATION

On November 21, 2019, Corporal Hazime with the New Port Richey (Florida) Police Department was on duty. At about 12:50 A.M., while patrolling on U.S. Highway 19 (“Highway 19”), Cpl. Hazime “passed Collins’s car while it was stopped at a stop sign on Highway 19’s intersection with Green Key Road.” Hazime’s and Collins’s vehicles were the only two in the vicinity at that time.

Corporal Hazime expected that Collins would turn onto Highway 19, but this did not happen. Instead, Cpl. Hazime “watched Collins’s car for about one minute and it remained stopped at the stop sign.” The fact that Collins’s car had not moved, despite no impediments to doing so, “concerned [Hazime] for two reasons. First, a car staying stopped at a stop sign can indicate the driver has a medical issue. Second, it can indicate impaired driving.”

Based on these factors, Cpl. Hazime made a U- turn so that he could return to the intersection of Highway 19 and Green Key Road. At this time, “Collins finally turned into the right southbound lane of Highway 19.” Corporal Hazime followed behind Collins, at which time he noted that Collins’s vehicle “ha[d] dark tinted windows, which [he] believe[d] … [wa]s in violation of Florida state statute.” As Cpl. Hazime continued following behind Collins’s car, he “could not see the driver [and] could not see any portion through the window.” At this point, Cpl. Hazime pulled over Collin’s vehicle to conduct a traffic stop:

Collins was arrested for obstruction of justice, refusing to obey lawful commands, and driving under the influence after Corporal Hazime and other responding officers observed belligerent behavior and signs of impaired driving. Collins also received a citation for illegal window tinting after officers tested the car’s tint. An inventory search of Collins’s car revealed counterfeit bills, receipts indicating those bills were used, and forgery equipment.

 

Collins was indicted in federal court on charges of making, possessing, and passing counterfeit Federal Reserve notes. Subsequently Collins filed motions to suppress in the U. S. District Court for the Middle District of Florida (“District Court”). He argued that the evidence discovered in his vehicle should be suppressed, contending “that the initial traffic stop was unlawful because it wasn’t supported by reasonable suspicion or probable cause.” In contrast, the prosecution maintained “that Corporal Hazime had probable cause to suspect a window tint violation or, alternatively, at least a reasonable suspicion that Collins was driving under the influence.”

The magistrate judge who conducted the motion hearing “recommended that the district court conclude the stop was lawful[,]” and the district court adopted this recommendation. (Note: Federal district courts employ magistrate judges to assist with civil and criminal dockets. In criminal cases, their duties include, among others, issuing search and arrest warrants, setting bail, and handling pretrial motions and hearings.)

Collins then opted for a bench trial in District Court (a trial before the judge, without a jury), was found guilty, and was sentenced to imprisonment for thirty months. Following his conviction, Collins appealed the denial of his motions to suppress to the Eleventh Circuit Court of Appeals (“11^th Circuit” or “Court”): “He argues the district court erred by adopting the magistrate judge’s conclusion that there was probable cause to suspect a window tint violation. He also contends Corporal Hazime actually stopped him for being stationary at the stop sign but there wasn’t anything criminal about that.”

The 11^th Circuit was not persuaded by Collins’s arguments. Rather, the Court “agree[d] with the magistrate judge that probable cause existed to suspect Collins’s window tint violated Florida law.” The Court wrote:

An objectively reasonable officer could believe Collins violated that prohibition. Corporal Hazime testified that he saw Collins’s ‘dark tinted windows’ when passing Collins on the northbound side of Highway

19. Then he changed lanes on the southbound side to purposefully look into Collins’s windows, and he ‘could not see any portion [of Collins] through the window[s].’ His inability to see any part of Collins was, in his experience and as corroborated by the dash-camera footage, a ‘clear indication’ that the tint violated Florida law. These circumstances established probable cause.

Ironically, the only [United States] circuit court case Collins cited to support his argument that Cpl. Hazime’s testimony was somehow insufficient to establish probable cause was an 11^th Circuit decision (U.S. v. Weaver) with facts similar to those in Collins’s case. In Weaver, “[T]he officer saw the defendant’s tinted windows around 11 P.M. and ‘pulled alongside [the] car’ but ‘could not see the driver’s silhouette [or] the dashboard lights through the tinted windows’”.

For these reasons, the 11^th Circuit affirmed the District Court’s denial of Collins’s motions to suppress. U.S. v. Collins, No. 23-10322, 2024 WL 3949946 (11th Cir., Aug. 27, 2024).

Georgia Court of Appeals

OFFICER WAS NOT ENTITLED TO COMMAND DEFENDANT TO DROP BASEBALL BAT DURING

FIRST-TIER ENCOUNTER

Officer Fuller was on patrol in Rockmart, Georgia, on August 19, 2019, when a call came over his police radio at about 2:15 A.M. The call was from an officer with another agency, asking “whether officers were familiar with ‘a man and woman [who] walk[ ] around town carrying a baseball bat.’” The officer had seen three people “traveling on a sidewalk near a well-known business called ‘House of China.’” One female was on foot, as was one male, who held the baseball bat; the third person was a male on a bicycle.

Both Officer Fuller and another officer proceeded to attempt to locate the three individuals. He crossed paths with the group while he “drove south on the road on which the trio was traveling north.” In describing the group, Officer Fuller “explained that the trio remained on the sidewalk, that they were not on private property or near any vehicles, and that the trio were neither bothering nor threatening anyone.” Upon encountering the group, Officer Fuller and the other officer “pulled their respective cars alongside the curb with their passenger doors toward the sidewalk.”

Fuller testified that, upon exiting his patrol car, Terry, who was holding the bat, was somewhere between 30 feet and 45 feet away from him. At this point, Officer Fuller commanded Terry to drop the bat. Instead of doing so, Terry said, “[Expletive deleted] you,” and continued walking towards Fuller. As Terry walked in Fuller’s direction, Fuller’s patrol car was in between them. Fuller testified that Terry held the bat “in a downward direction by his side.” Fuller also described the bat as “swinging” down next to Terry’s right leg, similarly to how “one would swing your arms when you walk.”

In response to Terry’s cursing at him and continuing to walk in his direction, Officer Fuller pulled his service weapon out of its holster and held it “down by [his] side.” Fuller said that he drew his weapon since Terry kept walking towards him: “Well, the short distance as it is, he can close that distance and hit me with the bat prior to me being able to unholster.” Fuller testified further:

 

I’m holding it at my side. I don’t think he can even see it because there’s now a car in between us. He’s at the front end of my car by this point, and I’m moving to the back end of my car, again, giving him the verbal command to drop the bat. . .He makes it from there to the rear of my car. . . At this point, he’s made it to the back of my car and he’s turned parallel with me. There’s no barrier in between us anymore. At this point, he can — he can do some serious damage with that bat with the short distance that we are. I made the determination, I pointed my duty weapon at him and gave him another verbal command to drop the bat. At that time, he flipped the bat. He didn’t swing it at me. He didn’t overhand throw it like a baseball. He flipped it at me.

 

Officer Fuller testified that, after Terry flipped the bat towards him,

 

I’ve already made the determination that he’s under arrest for obstruction. I gave him four chances to drop the bat. I’m in a marked police unit. I’m in uniform. I’m a — that’s enough identification in my eyes to say the police gave you a lawful order. At that point, he’s — and he’s made me raise my duty weapon at him. He was going to jail for obstruction.

Fuller also testified “that there had been no radio traffic indicating a break in at the House of China or anywhere else in the vicinity[,]” and “that he was simply acting ‘with a hunch’ and that his sole focus during the stop was on [Terry] to the exclusion of the other two individuals.” The man on the bicycle “rode away during the incident because he was not asked to stop, and officers commanded the woman to leave the scene without any further investigation.”

Terry was convicted in Polk County Superior Court of obstruction of an officer, after the judge denied Terry’s motion for a directed verdict. In Georgia, a judge can direct a verdict “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict[.]” (O. C. G. A. § 9-11-50 (a)). Terry then appealed to the Georgia Court of Appeals (“Court of Appeals” or “Court”).

The Court of Appeals reversed Terry’s conviction, finding that “the State’s evidence was insufficient to warrant a conviction for misdemeanor obstruction of a police officer, and the trial court erred when it denied Appellant’s motion for a directed verdict.” To decide whether Terry’s actions had obstructed Officer Fuller, the Court first had to determine whether Fuller was “in the lawful discharge of his . . . official duties” and what right Terry had to “end the encounter.”

1. C. G. A. § 16-10-24 (a) states, in part: “[A] person who knowingly and willfully obstructs or hinders any law enforcement officer . . . in the lawful discharge of his or her official duties shall be guilty of a misdemeanor.” (Emphasis added.)
2. C. G. A. § 16-10-24 (b) reads, in part: “Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer . . . in the lawful discharge of his or her official duties by offering or doing violence to the person of such officer or legally authorized person shall be guilty of a felony[.]” (Emphasis added.)

 

The Court noted that “under either the greater or lesser offense, ‘the State must prove that the officer was in the lawful discharge of his official duties at the time of the obstruction.’” The Court “consider[ed] this question by applying the framework created by [the U.S. Supreme Court’s decision in] Terry v. Ohio[.]” Per this framework, “there are at least three types of police-citizen encounters: verbal communications that involve no coercion or detention; brief stops or seizures that must be accompanied by a reasonable suspicion; and arrests, which can be supported only by probable cause.”

In analyzing whether the encounter between Officer Fuller and Terry was a first-tier encounter — that, is, that Officer Fuller merely intended to question [Terry] about his presence in the area with a baseball bat – [Terry] would have been entitled to ignore the officer’s questions, disregard his commands, and walk away; [Terry’s] exercise of those rights does not amount to obstruction.

 

The Court of Appeals then considered whether the officer’s encounter with Terry was a second-tier encounter under the Terry framework, noting that a second-tier encounter is “better known as a ‘Terry’ stop.” The Court concluded that a second-tier stop would have been warranted only if Officer Fuller had developed a reasonable, articulable suspicion that [Terry] was committing or was about to commit a crime. Here, Officer Fuller merely testified that it was unusual to see someone walking in the area with a baseball bat at that time of day, that he did not know if [Terry] had ‘broken into’ the House of China, and that he had a ‘hunch’ about [Terry]. These circumstances are insufficient to create reasonable suspicion.

 

The State argued that, by cursing loudly at Officer Fuller and “continu[ing] to walk towards him while refusing to drop the bat. . . [Terry] committed the crimes of disorderly conduct and obstruction of an officer and was subject to arrest at that moment.” The Court of Appeals disagreed, reasoning that “Officer Fuller’s encounter remained a first-tier encounter, and this type of defensive behavior ‘would be consistent with [Terry’s] right to decline any contact from the police at that point in the encounter.’”

Therefore, the Court reversed Terry’s judgment of conviction. Terry v. State, No. A24A0107, 904 S.E.2d 104 (Ga. Ct. App., July 1, 2024).