☢ test - Í
halt on the side of the road. ” “When the actions of the police do not show an unambiguous intent to restrain or when an individual’s submission to a show of governmental authority takes the form of passive acquiescence, there needs to be some test for telling when a seizure occurs in response to authority, and when it does not. The test was devised by Justice Stewart in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), who wrote that a seizure occurs if ‘in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave,’ id ., at 554, 100 S.Ct. 1870 (principal opinion).” California Supreme Court found no seizure of a passenger, as an officer’s blue lights are generally directed at the driver, not the passenger, and a reasonable passenger would not believe he was being detained. U.S. Supreme Court disagrees: “A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver, diverting both from the stream of traffic to the side of the road, and the police activity that normally amounts to intrusion on ‘privacy and personal security’ does not normally (and did not here) distinguish between passenger and driver. United States v. Martinez-Fuerte, 428 U.S. 543, 554, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). An officer who orders one particular car to pull over acts with an implicit claim of right based on fault of some sort, and a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing. If the likely wrongdoing is not the driving, the passenger will reasonably feel subject to suspicion owing to close association; but even when the wrongdoing is only bad driving, the passenger will expect to be subject to some scrutiny, and his attempt to leave the scene would be so obviously likely to prompt an objection from the officer that no passenger would feel free to leave in the first place.” Accord, State v. Menezes , 286 Ga.App. 280, 648 S.E.2d 741 (July 3, 2007) (passenger had standing to contest stop of vehicle, citing Brendlin ). Distinguished as to bus passesngers, Solano-Rodriguez v. State , 295 Ga.App. 896, 673 S.E.2d 351 (February 10, 2009) ( quoting Brendlin, “the relationship between driver and passenger is not the same in a common carrier as it is in a private vehicle, and the expectations of police officers and passengers differ accordingly.”). Medvar v. State, 286 Ga.App. 177, 648 S.E.2d 406 (May 25, 2007). During traffic stop, deputy had “a reasonable suspicion of criminal activity warranting the additional questions asked and the continuance of the detention. [fn] The deputy testified that both Medvar and his brother were extremely nervous, particularly Medvar’s brother who reached into the glove compartment of the vehicle for its bill of sale and registration with shaking hands while breathing heavily. Medvar and his brother also gave directly conflicting stories as to their destination. [Cits.]” United States v. Street, 472 F.3d 1298 (11th Cir., December 20, 2006). Trial court properly characterized officers’ detention of defendant as a Terry stop, not an arrest, although defendant was detained for approximately 60 minutes before officers formally arrested defendant for bank robbery. “In United States v. Hardy, 855 F.2d 753 (11th Cir., 1988), we set out four, nonexclusive factors to aid us in differentiating between a Terry stop and an arrest: (1) the law enforcement purpose served by the detention; (2) the diligence with which the officers pursued the investigation; (3) the scope and intrusiveness of the investigation; and (4) the duration of the detention. Id. at 759. In balancing these factors, we are to focus on ‘whether the police diligently pursued a means of investigation likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.’ United States v. Acosta, 363 F.3d 1141, 1147 (11th Cir., 2004) (citing United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575, 84 L.Ed.2d 605 (1985)).” First three of these factors weigh in favor of trial court’s finding: obvious law enforcement purpose in investigating bank robbery suspect; diligent pursuit of that purpose; and fact that investigation was conducted, by defendant’s choice, at defendant’s home, where he was not restrained and where his parents were present. “The fact that the duration of the stop was sixty minutes does not override the other three factors weighing in favor of its validity in these circumstances. See United States v. Gil, 204 F.3d 1347, 1350-51 (11th Cir., 2000) (upholding detention under Terry where defendant was handcuffed in the back of a police car for seventy-five minutes); Hardy, 855 F.2d at 761 (under the circumstances detention for fifty minutes was not too long for Terry purposes).” Distinguishing “ United States v. Codd, 956 F.2d 1109 (11th Cir., 1992), and United States v. Perez-Esparza, 609 F.2d 1284 (9th Cir.1980)” “In both cases the defendants were held in police-controlled locations and were not allowed to move. Here, on the other hand, Street was offered a choice about where he would be questioned; he was questioned in the comfort of his own home; and he was not handcuffed or restrained in any way. He was free to move about and did so. Unlike the suspects in Codd and Perez, Street was not detained for longer than sixty minutes without the existence of probable cause.” Smith v. State, 281 Ga. 185, 640 S.E.2d 1 (December 11, 2006). Fact that defendant was handcuffed for transport to give police statement does not require finding that he was under arrest. “The evidence is unclear whether, after Smith freely consented to further questioning, he was handcuffed, as a safety precaution, by Officer Harris for transport to the precinct. However, even if he was, that would not necessarily demand a finding that he was under formal arrest or vitiate the consent to further questioning that he had given previously to Detective Walker. Officers may handcuff a suspect during an investigatory stop when such action is either reasonable under the circumstances to protect themselves
Made with FlippingBook Ebook Creator