Georgia court holds that "nervousness" is not enough to justify detention
The Court of Appeals of Georgia recently ruled that a suspect who walks away from police in a known drug area and appears nervous does not form enough of a particularized suspicion necessary to detain or seize the suspect.
In Walker v. State, the defendant, Walker, was convicted by a jury of possession of cocaine and two counts of misdemeanor obstruction of an officer. During the daylight hours of March 27, 2007, four Covington police officers were driving through a high-drug area in an unmarked car. The area received ongoing complaints about drug activity, but the police had not received any complaints on this particular day. They came upon four men, including Walker, standing in the street, and as the car came to a stop, the four men began walking out of the street and into a yard. An officer got out of the vehicle and told the men: “hey, hold on guys, come here, come here.” Walker complied. The officer noted that Walker was very nervous and patted Walker down for weapons but found none. The officer then asked if he could search Walker. Walker responded that the officer had already searched him. The officer explained that, “a search is where I go inside pockets. . . do you have a problem with me doing that.” Walker consented. In addition to checking every pocket, the officer pulled Walker’s pants out from his stomach and found a small bag in the crotch area. Walker attempted to pull away but was tackled and police ultimately used a taser gun on him. Cocaine was found in the small bag.
The appellate court determined that the stop made by the officers was a Terry stop. During a Terry stop, an officer may only detain a person briefly if he has a particularized and objective basis for suspecting that the suspect is involved in criminal activity. Yet, the officer here could not articulate a particularized basis for suspecting Walker of criminal activity, since nervousness and walking away are not enough to detain a suspect for purposes of a Terry stop. Thus, the detention was illegal. Furthermore, the search would have been invalid even if Walker had not been illegally detained, because a search in this case would only be legal if Walker had consented to it. However, he only consented to his pockets being searched and not his crotch area. Consequently, the search was illegal and the cocaine should have been suppressed. The court reversed Walker’s conviction as a result.
Pate & Brody is an accomplished Georgia law firm with offices in Atlanta, Macon and Madison. Our lawyers are dedicated to pursuing justice for people charged with serious crimes. We have successfully represented clients facing serious federal criminal charges and state criminal charges in courts across Georgia. Our lawyers have been recognized on the list of Georgia's "Super Lawyers", and included among Georgia's "Legal Elite" by Georgia Trend Magazine. Page Pate was recently the Chairman of the Criminal Law Section of the Atlanta Bar Association.
