An encounter that begins as a consensual encounter may escalate into an investigatory stop, also called an investigatory detention, covered by the Fourth Amendment. Rush v. State, A23A0637 (July 24, 2023); State v. Taylor, 226 Ga. App. 690 (1997). Examples of circumstances that might indicate an investigatory stop include the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the citizen, whether police isolated suspects, or the use of language or tone of voice indicating compliance with the officer's request might be required. State v. Woods, 311 Ga. App. 577 (2011); Cutter v. State, 274 Ga. App. 589 (2005); State v. McMichael, 276 Ga. 735 (2005).
Reasonable Articulable Suspicion
An investigatory stop must be based upon a reasonable suspicion that the person detained is engaged or about to engage in criminal activity. State v. Hopper, 293 Ga. App. 220 (2008); Norton v. State, 283 Ga. App. 790 (2007). The determination of whether articuable suspicion exists depends upon all the circumstances gathered from the objective observations of the police and the modes or patterns of operation of certain kinds of lawbreakers. Hilbun v. State, 313 Ga. App. 457 (2011). In reaching conclusions, police officers are permitted to make common sense conclusions about human behavior. The evidence must be viewed from the perspective of what action a reasonable police officer would take. Baggett v. State, A23A0263 (June 5, 2023); State v. Causey, 246 Ga. App. 829 (2000). While a mere hunch is not enough for an investigatory detention, the police may rely upon their own experiences and training in assessing the circumstances. In re. J.B., 314 Ga. App. 678 (2012). A reasonable suspicion can exist even though there may also be an innocent explanation for the conduct observed. Johnson v. State, 313 Ga. App. 137 (2011). Whether there is reasonable articulable suspicion is a legal question. Harkleroad v. State, 317 Ga. App. 509 (2012).
The lawfulness of a seizure is determined not by the officer's beliefs but by an objective determination of the totality of the circumstances. Walker v. State,314 Ga. App. 67 (2012). “This totality of the circumstances test consists of two elements: (1) The determination must be based upon all the circumstances gathered from objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. The trained police officer makes a determination from these data- this determination can be based upon inferences and deductions that might well elude an untrained person. In reaching such deductions, police officers are authorized to make common sense conclusions about human behavior. Additionally, the evidence must be viewed from the perspective of what action a reasonable police officer would take; (2) The second element which must be present before a stop is permissible requires that during the process of analyzing the facts as described in the first element, a suspicion must arise that the particular individual being stopped is engaged in wrongdoing.” Jones v. State, 314 Ga. App. 107 (2012).
Merely being present in an area known to the police for drug activity, without more, is not enough to support a reasonable suspicion that the person is engaged or about to engage in criminal activity. Bly v. State, A23A0153 (May 11, 2023). Also, nervousness alone cannot provide reasonable suspicion of criminal activity. Dominguez v. State, 310 Ga. App. 370 (2011); Gonzales v. State, 255 Ga. App. 149 (2002); Becoats v. State, 301 Ga. App. 768 (2009). An anonymous tip alone is not sufficient. Chapman v. State, A23A0234 (June 27, 2023). The fact that the person stopped resembles the description of a suspect may be reasonable suspicion. Avery v. State, 313 Ga. App. 259 (2011); Smith v. State, 165 Ga. App. 333 (1983).
An officer who has reasonable suspicion to do so may detain a person at gunpoint during an investigatory stop. The fact that an officer is armed does not make the interaction an arrest because “it is often necessary for the police to approach a person with a drawn weapon in order to protect the physical well-being of both the police officers and the public.” Christy v. State, 315 Ga. App. 647 (2012); State v. Burks, 240 Ga. App. 425 (1999); Lewis v. State, 294 Ga. App. 607 (2008); Holsey v. State, 271 Ga. 856 (1999). An officer may even handcuff a suspect during an investigatory stop when such action is either reasonable under the circumstances to protect the officer or the public, or to maintain the status quo. Christy v. State, 315 Ga. App. 647 (2012); Stringer v. State,285 Ga. 842 (2009).
During an investigatory stop where he has reason to believe that he is dealing with an armed and dangerous individual, an officer may conduct a reasonable pat-down for weapons for the protection of the police officer. Lewis v. State, 307 Ga. App. 593 (2011). The officer may conduct a pat-down regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed. The officer must, however, have actually concluded that the suspect may be armed or a threat to personal safety and must be able to articulate a basis for his conclusion so that a protective pat-down would not be unreasonable in the given set of circumstances. Richardson v. State, A14A0409; Parnell v. State, 280 Ga. App. 665 (2006). There must be specific facts that would cause someone to believe that the officer's safety may be in danger. For example, if the officer asks whether a person is armed and the person does have a knife, then there is a reasonable basis for the officer to believe the person might be armed with another weapon. State v. Kipple, 294 Ga. App. 420 (2008).
A pat-down, unlike a full search, is conducted for the purpose of ensuring the safety of the officer and of others nearby, not to obtain evidence for use at trial. It is a minimal intrusion reasonably designed to discover guns, knives, clubs, or other weapons that could prove dangerous to a police officer. “Before an officer places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so.” Molina v. State, 304 Ga. App. 93 (2010). If an officer conducts a pat-down for weapons without sufficient justification, any evidence discovered is not admissible against the person. Terry v. Ohio, 392 U.S. 1 (1968). In conducting a pat-down, an officer is authorized to pat-down a person's outer clothing. He may go beneath the surface of the clothing in only two instances: (1) if he comes upon something that feels like a weapon, or (2) if he feels an object whose shape or weight makes its identity as contraband immediately apparent. This is called the “plain feel” doctrine. Jones v. State, 314 Ga. App. 247 (2012).