Blue Light Special

By way of the WindyPundit, Mark Draughn raises a remarkable Georgia Court of Appeals decision in Dryer v. State.

By the officer’s own testimony, Dryer hadn’t broken any traffic laws, and the only reason he pulled Dryer over is because the officer thought it was suspicious that he had been in the lot after the club was closed. That wasn’t enough to constitute reasonable suspicion, and so Dryer’s lawyer tried to have the evidence thrown out.

You see, when the police want to ask you a few questions, one of the key legal issues is whether or not they are detaining you at the time. If they are, then they are supposed to have reasonable suspicion that you’ve done something wrong. It’s not a high standard, but it’s not nothing.

The law is that police can walk up (or drive up, as the case may be) to a person and engage them in conversation, asking them questions, just like anyone else. This is described as a tier one Terry stop,* and requires no suspicion. The distinguishing hallmark of such activity is that the person is free not to engage with police and can walk away.

What makes this case remarkable, and is handled adeptly by Windy, is that Jonathon Dryer was stopped by a police officer who put on his cruiser’s blue lights, and yet the trial court held that this was a tier one stop, that Dryer was free to ignore the flashing blue lights and drive away.  Don’t try this. It won’t end well.  As Windy wrote:

Which means that in some lower trial court there was a judge — a fully-grown adult who I assume is mentally competent to do things like feeding himself without injury and using toilet facilities without soiling his clothes — who actually ruled at the suppression hearing that when a patrol officer flips on all those blue lights on the roof, a reasonable person would assume that he was completely free to just ignore the officer and drive away.

The trial judge relied on another Georgia case, Collier v. State, involving a cop who arrived with lights flashing to investigate a domestic violence case, and saw an unrelated car backing up illegally and parking in a driveway down the road.  When the officer went to the car (and ignored the DV case) and questioned the driver, it was held to be consensual, as the approach with lights blazing was not directed at the car or driver.  The Court of Appeals distinguished Collier from the Dryer case.

It appears that trial judge’s analysis was clouded by the rubric while ignoring the rationale. The lights in Collier didn’t preclude a tier one stop, so therefore the blue lights didn’t preclude the stop in Dryer from being a tier one stop as well.  It’s nuts, but that’s how a rote-thinking, logic challenged judge reads precedent.  Or more to the point, how a judge inclined to deny suppression takes comfort in anything remotely providing a justification to do so.

While the idea in Dryer that a person without a death wish is free to ignore the flashing lights atop a police cruiser because it’s only a friendly invitation to stop if you feel like it is ludicrous, it offers an extreme example of the lengths to which courts will go to sustain the fiction of a tier one Terry stop.

Why, it’s argued, should police be prohibited from engaging in the same conversation, discussion, questioning and banter that any other human being is permitted?  As the Dryer court explains:

It is well established that in a first-tier encounter, police officers “may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.” In fact, “[t]here is no threshold requirement and indeed the individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint and is not encompassed by the Fourth Amendment.” Essentially, as long as a reasonable person would feel free to disregard the police and go on about his business, “the encounter is consensual and no reasonable suspicion is required.”

That flashing blue lights on top of a police cruiser tend to create a definite impression is clear, but how many videos have we seen of people asking the police officer “am I free to go?”  The fiction of a Terry stop is that you shouldn’t have to ask; that a reasonable person would know that he’s not being detained and is free to tell the cop that he’s not in the mood to chat, so he’s out of there.  Once again, don’t try this at home.

A tier one Terry stop is a fallacy maintained by the courts to empower police to approach and question people in the absence of reasonable suspicion.  It’s an excuse. The courts are well aware of “submission to the shield,” that people do not feel free to dispute or disagree, refuse to answer or walk away, from a cop. They fear, as any reasonable person should, that the police officer might not take kindly to such conduct, and pain will ensue.

From the cop’s perspective, failure to comply justifies whatever follows. While courts may call it consensual, police tend to have a very different understanding of the word, often confusing it with blind compliance. If a cop asks you a question, you answer or else. Not all cops, but they don’t have signs on their chests informing you of whether they’re the sort of cop to beat you for fun or let you walk away.  Feeling lucky?

The problem could be resolved if courts required police to advise up front that they are not detaining a person and the person is free not to answer, not to engage in conversation and to walk away, thus obviating the fear that failure to comply will result in dire consequences. But then, the concern is nobody will voluntarily talk to cops and one of their most useful tools, fear, will be lost.

The alternative is to require police to announce up front that they are detaining you, whether by turning on the flashing blue lights or saying so in a stentorian voice, and if they don’t make that announcement, then folks can smile, wave and walk away.  While a few will do exactly that, most will stay and respond to inappropriate questions anyway, because most people just can’t walk away and not comply or ignore police, flashing lights or not.

There was no need for “mission creep” as held by the trial court in Dryer. Had the cop merely opened his window and called to Dryer, “hey, bud, got a minute?” chances are pretty darned good that Dryer would have stopped and engaged with the cop anyway.

*  In order to clear up any potential confusion as to terminology, while the Dryer court calls it a first tier Terry stop, most other courts wouldn’t describe it as a stop at all, and certainly not a Terry stop. After all, if it’s just a cop chatting up a person who is free to ignore the cop and walk away, then it wouldn’t constitute a stop at all under the fiction that reasonable people believe they can ignore cops if they so chose.

The premise for a Terry stop, on the other hand, is that when a person is stopped by a police officer, the cop must have reasonable articulable suspicion. In the Dryer opinion, this is described as a second tier Terry stop, though most other courts would describe it as simply a Terry stop.

 

 

22 comments on “Blue Light Special

  1. Andrew Fleischman

    This is a rare bout of common sense. A couple of years ago, the Court of Appeals held that when a police officer blocks someone into a parking lot, with his lights on, and testifies that the person IS NOT ALLOWED TO LEAVE, that is a tier one encounter. The SCOG, rightfully, smacked them down, but it took an unusually incompetent appeals presentation by Coweta County to seal the deal. The prosecutor argued, to the judge’s disbelief, that they should ignore the testimony of the officer and findings of the trial court that the defendant could not leave because photographs, taken six months after the stop, revealed there might have been a second exit he could have slipped through.

    http://scholar.google.com/scholar_case?case=2314628784670344495&q=roadblock+state+v.+jones+parking+lot&hl=en&as_sdt=4,11

    [Ed. Note: Link allowed despite rules.]

      1. REvers

        From what I can tell, it’s a pervasive problem nearly everywhere.

        We call them “voluntary contacts” around these parts. And the judges just eat it up.

            1. SHG Post author

              Ah, anything to excuse a baseless stop. Unbelievable.

              I really didn’t know the problem was that pervasive. You can’t see me, but I’m sitting here laughing, which beats the alternative.

  2. Anon A. Mouse

    This author is confused. There is no such thing as a “tier one Terry Stop”, which he claims does not require reasonable suspicion, and to which he refers three times. A Terry Stop requires reasonable suspicion by definition.

    There are three tiers of police encounters. The first is voluntary, the second is detainment (a Terry Stop requiring reasonable suspicion), the third is an arrest (requiring probable cause).

    1. SHG Post author

      The use of the “tier one Terry stop” comes from the Georgia Court of Appeals decision. You’re right, it is somewhat confusing, because Terry doesn’t call it that, and most states don’t include a consensual encounter within the framework of a Terry stop or whatever name is used in the jurisdiction.

      But the concept is the same, and since that was the language used by the Georgia court, that’s the language used here.

      1. Anon A. Mouse

        Thank you for your response. Wasn’t expecting you to publish my comment, no need to publish this one either.

        The GA Court of Appeals doesn’t use the language “tier one Terry Stop.” Nor anything close. In fact they clearly distinguish tier two Terry Stops from tier one consensual encounters. My concern is that as a respected commentator, you are misinforming your readers when you suggest that some Terry Stops do not require reasonable suspicion. I’ll shut up now.

        1. SHG Post author

          Why wouldn’t I post your comment? Well, you’re right in the sense that they court called it a first-tier rather than tier one, by my count about 13 times in the decision. Your issue is that the first tier isn’t a Terry stop at all, but that’s not how the court used the word:

          The Supreme Court of the United States has set forth—most notably in Terry v. Ohio—three tiers of police-citizen encounters: “(1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.”

          While I appreciate your point, and post your comment because your point is well-taken, I can’t change what the court called it. Well, at least not beyond first tier to tier one. That was my doing, but I don’t think it’s enough of a change to matter.

  3. Michael Kelly

    Jeeze, I wish the judiciary would make up its collective mind. First they condemn “profiling” and then they come up with “reasonable suspicion”. In my days as a cop, “profiling” was an essential tool for maintainng public order and safety and enforcing the law. Honestly, is there a difference between “profiling” and “reasonable suspicion”? I already know the possible “blowback” I’ll get from asking this question, that “profiling” is purely racial and indeed there are some “bad and dirty cops” that go too far. So maybe SCOTUS needs to render a set of standards which make which clearly define what the elements of “reasonable suspicion” are. That DA judge’s opinion about the “Blue Flashing Lights” is…..(^$%#)*@#(!@…..Is there really anyone, anywhere in the USA, or even the world, that believes that when those lights are on behind or near you that it is just a friendly request to stop and chat? Every incident that I recall when those “Blue Christmas Tree Lights” went on and the person refused to stop it was immediately and automatically considered a “fleeing suspect” and appropriate arrest and apprehension, force, methods and techniques were employed.

    1. SHG Post author

      Since Terry in 1968, the rule for a stop has been a reasonable and articulable suspicion that a person has committed, is committing, or is about to commit a crime. The rule was never profiling (though some of the same folks who think driving while black is terrible don’t seem too upset about flying while Arab, but I digress).

      But yeah, try ignoring the blue lights and see how well a cop takes it.

  4. Michael Kelly

    Yes, it was after the Judiciary collected and collated the date and saw that an inordinate number of police stops stops or interventions using “reasonable suspicion” were non-whites and thusly concluded that there was something funny going on, so they came up with “racial profiling”. Most of us can agree that there are among us “devout racists” and that includes among the police. Given that are there some cops that “racial profile”? You can bet there is! However, in my experience I never heard of or seen much of what one could call pure “racial profiling”. “Reasonable Suspicion” would almost always be the case. In fact it seemed to me that the black and Latino cops could be more often accused improper “racial profiling” more often than white cops. I cannot remember the number of times that I commented to non-white cops “why are you picking on your own kind?” and the answer was always “you don’t know them like I do!”.

    1. SHG Post author

      Self-loathing is a curious thing. Of the black and Hispanic cops I know, many prefer to identify themselves more with blue than whatever color they were before.

      1. Michael Kelly

        BTW, SHG, I have a lot of black ancestry in my genetic code so I have a great deal of ID with and deep feelings for black folks. To be more specific all of my paternal grand mothers back to great-great-great grandma were all African Blue-Blacks and my paternal grand fathers were at least bi-racial. My comments thus far were strickly observations and things learned from a purely good cop perspective. Police work is a tough job and even tougher when it is done by the book. The Judiciary makes it even harder with case law rendered like the DA judge above. But then again being a waste collector is surely hard work itself, so I have few complaints except for “Dirty Cops” as this website is dedicated to registering.

          1. Michael Kelly

            Agreed! Just wanted you to understand that my remarks and/or opinions are not racially biased and the “Good Cops” understand this, while the “Dirty Cops” understand nothing due to the small size of their brains and the large size of their mouths together with a questionable moral character.

  5. Daniel

    Well, if I’m not banned for being “stupid,” I will point out that it is a crime to refuse to stop for a police officer when “told” to do so by the officer’s turning on the revolving lights of the police vehicle. I can even argue that it is a misdemeanor to refuse to stop in California under the “resisting arrest” statute that prohibits “resisting, obstructing, or *delaying* a police officer in the performance of his duties.” Vehicle codes also require the driver to stop for the revolving lights under penalty of a ticket or physical arrest, so I can only see a corrupt or extremely ignorant judge ruling it is a “consensual encounter.” It is probably called “fleeing or attempting to flee” from a police officer, which can even be a felony under certain circumstances.

    1. SHG Post author

      My head. It hurts. And not the least reason being the case was in Georgia, not California, which even non-lawyers recognize to be spelled entirely differently. If you’re going to just make legalish stuff up, at least make it humorous. Even if I didn’t ban you for being stupid, I may still ban you for having no sense of humor.

      1. Daniel

        I apologize for using California as an example because I’m most familiar with California law. As a former pigg, I can assure you I know the law on “eluding” well. I usually do have a sense of humor, thank you very much, but I don’t see much humor in the Georgia court’s opinion. I have never heard of a state that allows a driver to “just take off” after the police car lights come on without some consequences, such as a traffic ticket for a “fine-only offense” or an arrest for a crime. I’d be shocked if Georgia’s “eluding or attempting to elude” law is not similar to California’s eluding law. Thank you.

        1. SHG Post author

          Of course there is no state that allows a driver to take off when a cop puts on the turret lights, except when a court like this needs to find that there wasn’t a stop so that the subsequent seizure of evidence wasn’t initiated by a suspicionless, and therefore unlawful, stop. Unless there is some bizarre quirk under Georgia law (say, red and blue lights mean stop, blue alone means warning, for example), the basic concept is pretty much universal in this country. Except when a judge needs it to be otherwise. That’s the point of the story.

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