In the Supreme Court of Georgia



                                                    Decided:       October 20, 2014


                       S13G1793. THE STATE v. WALKER.


       HINES, Presiding Justice.

       This Court granted a writ of certiorari to the Court of Appeals in Walker

v. State, 323 Ga. App. 558 (747 SE2d 51) (2013), to determine if that Court

erred in reversing the trial court’s denial of the motion to suppress evidence of

cocaine found as a result of an encounter between a police officer and Ernest

Walker, Sr. Finding that the Court of Appeals erred, we reverse that Court’s

judgment.

       According to the facts as found by the trial court after the hearing on

Walker’s motion to suppress,1 Officer David Adriance, of the Warner Robbins

Police Department, was patrolling an area near an elementary school at 12:12

a.m. on February 23, 2011; he had been advised to be on the lookout for a black


       1
          “On appellate review of a ruling on a motion to suppress, the trial court's findings on
disputed facts will be upheld unless clearly erroneous, and its application of the law to undisputed
facts is subject to de novo review.” Registe v. State, 292 Ga. 154, 155-156 (734 SE2d 19) (2012)
(Citations and punctuation omitted.)
male in dark clothing who was a suspect in the attempted theft of a motorcycle.

Officer Adriance saw Walker, who was wearing a hooded blue sweatshirt and

light-colored pants, on foot on the grounds of the school. Officer Adriance

approached Walker, telling him to remove his hands from his pockets; rather

than complying, Walker became verbally combative, yelled that he was “just

trying to get home,” and “took off running through back yards, tossing stuff as

he ran.” Officer Adriance gave chase and caught Walker; the items Walker

discarded included crack cocaine and a pipe for smoking crack cocaine, which

he sought to suppress. After a jury trial,2 Walker was convicted of possession

of cocaine with intent to distribute and obstruction of a law enforcement officer;

these convictions were reversed by the Court of Appeals. Further facts may be

found in the opinion of the Court of Appeals. Id.

       As the Court of Appeals characterized the case on appeal,

       Walker contends that he was subjected to an investigatory detention
       when an officer stopped him as he stepped off the premises of an
       elementary school and instructed him to remove his hands from his
       pockets. Walker contends that the officer lacked a particularized
       and objective basis for suspecting that he was involved in criminal

       2
         Walker petitioned for an interlocutory appeal from the denial of his pretrial motion to
suppress under the procedures of OCGA § 5-6-34 (b), and the petition was denied by the Court of
Appeals.

                                               2
      activity, as required for such a stop, and that, in the absence of any
      reasonable, articulable suspicion of criminal activity, he was
      entitled to refuse to comply with the officer's demands and to end
      the encounter by running away from the officer. Because the officer
      lacked a reasonable, articulable suspicion of criminal activity,
      Walker contends, the detention violated his Fourth Amendment
      right to be free from unlawful searches and seizures, and the trial
      court erred in denying his motion to suppress a quantity of cocaine
      and other drug-related items that were obtained as a result of the
      illegal detention.

Id. at 553 (1).

      The Court of Appeals determined that Officer Adriance lacked articulable

suspicion, and in doing so, set forth the following formulation:

      Fourth Amendment jurisprudence recognizes 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. In the first tier, 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. The second tier
      occurs when the officer actually conducts a brief investigative . . .
      stop of the citizen [under Terry v. Ohio, 392 U.S. 1 (88 SCt 1868,
      20 LE2d 889) (1968) ]. In this level, a police officer, even in the
      absence of probable cause, may stop persons and detain them
      briefly, when the officer has a particularized and objective basis for
      suspecting the persons are involved in criminal activity. . . . To
      make a second-tier stop, . . . a police officer must possess more than
      a subjective, unparticularized suspicion or hunch. The officer's

                                        3
      action must be justified by specific and articulable facts which,
      taken together with rational inferences from those facts, reasonably
      warrant intrusion. Further, the court must be able to determine that
      the detention was neither arbitrary nor harassing. . . . Moreover, in
      determining whether the stop was justified by reasonable suspicion,
      the totality of the circumstances—the whole picture—must be taken
      into account.

Id. at 559 (1) (Citation, punctuation, and parenthetical omitted.) The Court of

Appeals then concluded that the facts of the encounter showed that

      [w]hat the officer may have intended as a first-tier encounter . . .
      almost immediately escalated into a second-tier stop when the
      officer commanded Walker to remove his hands from his pockets;
      as such, the detention had to be supported by articulable suspicion.
      [Cit.]

Id. at 561.

      In doing so, the Court of Appeals went astray; as it properly recognized

in its citation to Terry, it is a seizure of a person that must be supported by

articulable suspicion. And, it is clear from the facts of this case, that Walker

was not seized within the meaning of the Fourth Amendment by Officer

Adriance’s direction that he remove his hands from his pockets; a command

from a law enforcement officer, alone, is not sufficient to constitute a seizure for

purposes of the Fourth Amendment. Rather, under the Fourth Amendment, a

seizure occurs “[o]nly when the officer, by means of physical force or show of

                                         4
authority, has in some way restrained the liberty of a citizen.” Terry, supra at

19 (n. 16). And, it is unquestioned that Officer Adriance did not apply any

physical force to restrain Walker’s liberty until after Walker discarded the items

he sought to suppress; he did not touch Walker or display a weapon, nor were

other officers there such as might constitute a “threatening presence.” See

United States v. Mendenhall, 446 U.S. 544, 554 (100 SCt 1870, 64 LE2d 497)

(1980). Accordingly, whether Walker was seized before he abandoned the items

depends upon whether he had been seized through a show of authority on

Officer Adriance’s part; if he was not thus seized, his abandonment of the

property was not the fruit of a seizure, and the motion to suppress the evidence

was properly denied. California v. Hodari D., 499 U.S. 621, 629 (111 SCt

1547, 113 LE2d 690) (1991). See also Brown v. State, 239 Ga. App. 674, 676

(1) (522 SE2d 41) (1999) (“[D]efendant was not ‘seized’ when the cocaine was

abandoned. He had not been touched by the officers; he did not submit to the

officers' “show of authority”—the flashing blue lights. Simply put, defendant

was in a state of flight when the cocaine was discarded and it cannot be said that

it was the fruit of an illegal arrest.”)

      Walker contends that he was seized when Officer Adriance told him to

                                           5
remove his hands from his pockets, as this was an assertion of the officer’s

authority. However, this ignores clear precedent from the United States

Supreme Court that, absent physical force, for an encounter with a police officer

to be considered a seizure under the Fourth Amendment, there must be

“submission to the assertion of authority.” Id. at 626 (Emphasis in original.)

See also Brendlin v. California, 551 U.S. 249, 254 (II) (A) (127 SCt 2400, 168

LE2d 132) (2007) (“A police officer may make a seizure by a show of authority

and without the use of physical force, but there is no seizure without actual

submission; otherwise, there is at most an attempted seizure, so far as the Fourth

Amendment is concerned.”) (Emphasis added.) And, instead of submitting to

Officer Adriance’s direction and removing his hands from his pockets, Walker

ran. Although Walker describes the command to take his hands out of his

pockets as a “second-tier” encounter, it was not; without his submission to the

command, it was at most an attempted seizure, and “[a]ttempted seizures of a

person are beyond the scope of the Fourth Amendment. [Cit.]” County of

Sacramento v. Lewis, 523 U.S. 833, 845 (n. 7) (118 SCt 1708, 140 LE2d 1043)




                                        6
(1998).3

       Citing Mendenhall, supra, Walker nonetheless argues that he was seized

when Officer Adriance issued the command to remove his hands from his

pockets, because “a person has been ‘seized’ within the meaning of the Fourth

Amendment only if, in view of all the circumstances surrounding the incident,

a reasonable person would have believed that he was not free to leave,” id. at

554, and a reasonable person would so regard Officer Adriance’s direction.

However, as Hodari D., supra, made clear, the existence of such a reasonable

belief would not end the matter. Rather, Hodari D. specifically notes that

Mendenhall

       says that a person has been seized “only if,” not that he has been
       seized “whenever”; it states a necessary, but not a sufficient,
       condition for seizure—or, more precisely, for seizure effected

       3
          In this opinion, we address only the question of whether Walker’s rights under the Fourth
Amendment to the United States Constitution were violated; no question is posed regarding a
violation under the corresponding provision of the Georgia Constitution. See Art. I, Sec. I, Par. XIII
of the Ga. Const. of 1983. Although Walker cited the Georgia Constitution in his motion to
suppress, “the [trial] court ruled only on the Fourth Amendment basis, and there is no state
constitutional ruling for us to review. It is appellant’s obligation to pursue the grounds he raises and
obtain a ruling on them in the trial court, if he wishes to obtain appellate review. [Cits.]” Thomas v.
State, 203 Ga. App. 529, 530-531 (1) (417 SE2d 529) (1992). Thus, properly, the Court of Appeals
did not address any such claim, and, in any event, it has been noted that our Constitution protects
against “unreasonable” searches and seizures just as the Fourth Amendment does. Salermon v. State,
280 Ga. 735, 738 (1) (632 SE2d 645) (2006). Further, when this Court granted the application for
certiorari, the question posed referred only to the Fourth Amendment, and did not embrace any issue
under the Georgia Constitution. See id.

                                                   7
      through a ‘show of authority.’

Hodari D., supra at 628.       And, as Hodari D. also made clear, without

submission to that show of authority, there was not a seizure. Walker did not

submit to Officer Adriance’s command, and thus he was not seized until Officer

Adriance physically seized him. That Officer Adriance pursued Walker when

he ran does not alter matters as “being chased is not tantamount to being ‘seized’

in violation of the Fourth Amendment. [Cits.]” Smith v. State, 217 Ga. App. 680

(1) (458 SE2d 704) (1995) (Emphasis in original.) See also Sims v. State, 258

Ga. App. 662, 663 (574 SE2d 879) (2002) (“[B]ecause Sims threw away the bag

containing the cocaine when Officer Jones was chasing him, the trial court was

authorized to find that the cocaine was not seized as the result of a search but

was instead abandoned before Sims submitted to the officer's request to stop.”)

(Punctuation omitted.)

      Hodari D.’s holding that there must be submission to an officer’s show

of authority in order for there to be a seizure thereby has certainly been

recognized in the appellate decisions of this State. See, e.g., Gray v. State, 254

Ga. App. 487, 488 (1) (562 SE2d 712) (2002) (“Although Gray's vehicle was

signaled to stop in a police show of authority, Gray immediately fled the car[;

                                        8
he] had not submitted to authority, nor was he in physical custody, when his car

was stopped or when he discarded the paper bag containing the illegal drugs.”);

Brown, supra; Walker v. State, 228 Ga. App. 509, 510 (1) (493 SE2d 193)

(1997) (Suspect “was not ‘seized’ when he first got back in the car at [the

officer’s] command. [Cit.]      He was not ‘seized’ until he was finally

[captured.]”); Hunt v. State, 205 Ga. App. 490 (423 SE2d 24) (1992) (Suspects

attempted to drive away when officers activated blue lights, one throwing an

object from the vehicle as they fled.)

      Nonetheless, Walker notes several opinions of the appellate courts of this

State that he contends demonstrate that a seizure occurs at the time of the

officer’s assertion of authority, without regard to any issue of the suspect’s

submission to that authority. However, his reliance on these opinions is

misplaced. Although the Court of Appeals in Hernandez-Espino v. State, 324

Ga. App. 849, 850-852 (1) (752 SE2d 10) (2013), determined that a seizure

occurred when the officer “told” the suspect to “just give me the drugs you just

bought,” it did so without any examination of the effect of the suspect’s failure

to comply with the direction, or the precedents of the United States Supreme



                                         9
Court regarding the matter.4

       We have repeatedly cautioned that our decisions stand only for the
       points raised by the parties and decided by the court. See, e.g., State
       v. Outen, 289 Ga. 579 (714 SE2d 581) (2011); Palmer v. State, 282
       Ga. 466, 651 S.E.2d 86 (2007). “Questions which merely lurk in the
       record, neither brought to the attention of the court nor ruled upon,
       are not to be considered as having been so decided as to constitute
       precedents.” Id. at 468, 651 S.E.2d 86 (citation and punctuation
       omitted).

Holton v. Physician Oncology Services, LP, 292 Ga, 864, 869-870 (2) (72 SE2d

702) (2013).

       Further, examination of other opinions Walker cites for this proposition

shows that he has a misunderstanding of the facts involved. For instance, in

State v. Banks, 223 Ga. App. 838 (479 SE2d 168) (1996), although submission

to the police officer’s direction is not specifically mentioned in the recitation of

the facts, from what is reported, it appears that the suspect complied with the

direction that he “take his hand out of his pocket,” id. at 839, and thus, the Court

of Appeals correctly determined that a seizure had occurred at that point, even

though the Court characterized the point of seizure as the officer’s act of



       4
         The opinion recites that the suspect “denied having any drugs. The officer then asked for
consent to search, and [the suspect] agreed. The officer found crack cocaine in [the suspect’s]
pocket.”

                                               10
“demanding that he remove his hand from his pocket.” Id. at 840. See also

Durden v. State, 320 Ga. App. 218, 220 (739 SE2d 676) (2013) (The suspect

removed his hands from his pockets when directed, and “even if the officer’s

initial interaction with [the suspect] could be characterized as a first-tier

encounter, it escalated into a second-tier stop when the officer ordered Durden

to remove his hands from his pockets”); Brown v. State, 301 Ga. App. 82, 84

(686 SE2d 793) (2009) (“What began as a first-tier encounter escalated into a

second-tier stop when the officer told him to remove his hands from his

pockets,” and the suspect removed one hand.); Peters v. State, 242 Ga. App.

816, 818 (531 SE2d 386) (2000) (The suspect “obeyed [the officers’] command”

to stop.) (Eldridge, J., concurring specially.)

       Walker also contends that Sams v. State, 265 Ga. 534 (459 SE2d 551)

(1995), appears to be decided on the theory that a command from a law

enforcement officer with which a suspect does not comply, by itself, constitutes

a seizure under the Fourth Amendment.5 The majority in Sams did not address

the holding in Hodari D., supra, and certainly did not reach the conclusion


       5
         Although the majority opinion in Sams does not mention any constitutional provision, its
reliance on Terry, supra, reveals that it was decided under the Fourth Amendment.

                                               11
Walker urges. See Holton, supra. Rather, the Sams opinion merely proceeds

from the State’s position “that the officer had sufficient grounds to detain Sams

for questioning and to arrest Sams and that the search of Sams following the

arrest gave probable cause to believe the truck contained drugs,” Sams, supra at

535 (1), and rejects that contention, determining instead that “[t]he officer's

decision to order Sams to stop was based only on Sams apparent race and the

fact that Sams walked away upon seeing the officer.” Id. at 535 (1,2).

However, to the extent that Sams, or any other decision of the appellate Courts

of this State, can be read as standing for the proposition that an officer’s

uncomplied-with command alone constitutes a seizure without regard to the

holding of Hodari D., those cases are hereby overruled.

       Finally, Walker argues that, even if he did not comply with Officer

Adriance’s command to remove his hands from his pockets, he nonetheless

stopped walking, a show of submission to the officer’s authority.6 But, it must

be remembered, “there is no seizure without actual submission” to the show of

authority, Brendlin, supra (emphasis supplied), and Walker certainly did not


       6
        We note that the trial court’s order did not find that Walker stopped in response to Officer
Adriance’s command to remove his hands from his pockets. See Registe v. State, supra.

                                                12
submit to the actual direction. Even assuming that Walker stopped in response

to Officer Adriance’s command, “to comply with an order to stop—and thus to

become seized—a suspect must do more than halt temporarily; he must submit

to police authority . . . .” United States v. Baldwin, 496 F.3d 215, 218 (II) (2nd

Cir., 2007). If Walker stopped in response to Officer Adriance’s command, it

was only a temporary halting, and not an actual submission to the asserted

authority. See United States v. Salazar, 609 F.3d 1059, 1066 (II) (C) (10th Cir.,

2010) (“Mr. Salazar did not submit to [the show of] authority until he complied

with Trooper Berner’s command to get out of the pickup.”)7 As Walker did not

submit to Officer Adriance’s show of authority before abandoning the items at

issue, the Court of Appeals erred in reversing the trial court’s denial of Walker’s

motion to suppress.

       Judgment reversed. All the Justices concur, except Benham, J., who

dissents.




       7
          As we find that the Court of Appeals erred in determining that Walker had been seized
when Officer Adriance commanded him to remove his hands from his pockets, we need not address
its conclusion that Officer Adriance did not at that time have “an objective, articulable suspicion of
criminal activity.” Walker, 323 Ga. App. at 563 (1) (Punctuation omitted.)

                                                 13
                   S13G1793. THE STATE v. WALKER.


      BENHAM, Justice, dissenting.

      I write because I respectfully dissent. I believe the Court of Appeals’s

opinion was well-reasoned and reached the right result when it concluded that

the trial court erred by failing to grant Walker’s motion to suppress. See Walker

v. State, 323 Ga. App. 558 (747 SE2d 51) (2013). Accordingly, I cannot join

in this Court’s majority opinion.
