                               SECOND DIVISION
                                ANDREWS, P. J.,
                          MILLER, P. J., and BRANCH, J.

                     NOTICE: Motions for reconsideration must be
                     physically received in our clerk’s office within ten
                     days of the date of decision to be deemed timely filed.
                                 http://www.gaappeals.us/rules


                                                                     February 9, 2016




In the Court of Appeals of Georgia
 A15A1836. SIMS v. THE STATE.

      ANDREWS, Presiding Judge.

      Benjamin Sims appeals from the trial court’s denial of his pre-trial motion to

suppress evidence supporting the State’s accusation charging him with misdemeanor

possession of marijuana and misdemeanor obstruction of law enforcement officers.1

For the following reasons, we affirm the denial of the motion.

      Sims claims that, in violation of the Fourth Amendment to the United States

Constitution, police officers: (a) illegally stopped and detained him for questioning

without reasonable suspicion of criminal activity; (b) illegally arrested him for

obstruction when he walked away from and resisted the unlawful detention; and (c)

found marijuana on his person during an illegal search incident to the unlawful arrest.

      1
          We granted Sims’s application for an interlocutory appeal.
In its order denying the motion to suppress, the trial court found that the officers

lawfully attempted to detain Sims for questioning based on reasonable suspicion, and

lawfully arrested him for obstruction when he resisted the detention. The sworn

evidence at the motion hearing supports the trial court’s order.

      The State introduced the following testimony at the hearing on the motion:

Officer Cook, who was employed as a police officer with the Athens-Clarke County

Police Department, testified that he also worked off-duty providing security for the

University Oaks Apartments. The Apartments were located in a high crime area

plagued by burglaries, robberies, and illegal drug sales, and the Apartments hired

Cook and other police officers to provide off-duty security against these criminal

activities. The off-duty officers worked for the Apartments in full police uniform and

used their police patrol vehicles. The Apartments specifically asked the off-duty

officers to look for non-residents on the Apartments property engaging in criminal

activity. Officer Cook first encountered Sims on the Apartments property a few days

prior to the present incident. While providing off-duty security, Cook investigated the

smell of burning marijuana coming from one of the apartments. After the apartment

resident admitted that marijuana was being smoked inside the apartment, Cook

elected not to make arrests, but warned the resident and the other individuals in the

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apartment (including Sims who did not live there) that smoking marijuana was an

illegal activity not allowed on the property. A few days later, while Cook was again

providing off-duty security for the Apartments property, he repeatedly saw Sims and

another person he did not recognize coming out from behind different buildings on

the Apartments property over a period of time. At that point Officer Cook knew that

Sims was not a resident of the Apartments; could not confirm that the other person

was a resident; knew that Sims had recently been using marijuana on the property;

knew of the problem with non-residents coming on the property to engage in criminal

activity; and knew of recent burglaries and recent narcotics sales on the property.

Given these facts, along with the unusual movement by Sims and the other person

from behind building to building on the property, Cook suspected that Sims and the

other person may be non-residents engaged in criminal activity on the property. To

investigate this suspicion, Cook drove up to Sims and the other person in his patrol

vehicle. Without exiting the vehicle, Cook rolled down the window, said to Sims, “I

know you’re not a resident,” and asked the other person, “[D]o you live here, sir?” In

response to this question, Sims told the other person not to answer, cursed at the

officer, and both men walked away. Cook parked his patrol car, got out, followed

behind the two men as they walked away, identified himself as a police officer hired

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by the Apartments, and attempted to stop the men . But the men refused to stop,

continued to curse at the officer, and continued to walk away. At that point, Officer

Cook called for backup, and a second police officer arrived, Officer Herring, who was

patrolling on-duty in the area. When Herring arrived, he saw the two men walking

away from Cook. Cook explained his suspicion to Herring and asked Herring to “see

if you can talk some sense into them.” Herring walked ahead of the two men and tried

to get them to stop and answer questions about what they were doing at the

Apartments property, but neither man would stop or answer questions. The men

continued to walk away and act in a belligerent fashion toward the officers. Officer

Herring eventually said he “pretty much had enough,” reached for his handcuffs, and

moved toward Sims. Sims said “You’re not going to put those on me,” and either ran

or walked away at a fast pace to avoid the officer. At that point, Officer Herring

caught and handcuffed Sims, who continued to physically resist the officers.

      Sims claims that he lawfully exercised his right as a citizen to simply walk

away from the officers because they had no basis under the Fourth Amendment to




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stop and question him to investigate any suspicion of criminal activity, and no basis

to arrest him when he refused to stop and answer their questions.2

      [E]ncounters between police officers and citizens come in three
      varieties, at least as far as the Fourth Amendment is concerned: [tier
      one] encounters involving no coercion or detention, which are outside
      the purview of the Fourth Amendment altogether; [tier two] brief
      seizures, which require an officer to have a reasonable suspicion of
      criminal wrongdoing; and [tier three] custodial arrests, which require
      probable cause.

Culpepper v. State, 312 Ga. App. 115, 118 (717 SE2d 698) (2011) (Citation and

punctuation omitted). In a tier one encounter involving no coercion or detention,

“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.” Id. (Citation and punctuation omitted). The touchstone of this kind

of encounter is the right of the citizen not to answer the officer’s questions and to

walk or even run away. Ewumi v. State, 315 Ga. App. 656, 658 (727 SE2d 257)


      2
        Even though Officer Cook was providing off-duty security for the Apartments
during the events at issue, he was still at all times acting in the discharge of his
official duties as a police officer. “[A]ll law enforcement officers have the general
duty to enforce the law and maintain the peace. They carry this duty twenty-four
hours a day, on and off duty.” Stryker v. State, 297 Ga. App. 493, 494 (677 SE2d 680)
(2009) (Citation and punctuation omitted).

                                           5
(2012). We agree with the trial court that the facts show this was not a tier one

police–citizen encounter, and that Sims was not entitled to resist and walk away.

Rather, this was an attempted tier two encounter in which the police officers tried to

stop and detain Sims based on reasonable suspicion of criminal wrongdoing.

      The Fourth Amendment allows a police officer to stop persons . . . to
      investigate the officer’s reasonable suspicion “that the person stopped
      is, or is about to be, engaged in criminal activity.” United States v.
      Cortez, 449 U. S. 411, 417 (101 SC[ t] 90, 66 LE2d 621) (1981); Terry
      v. Ohio, 392 U. S. 1, 9 (88 SC[t] 1868, 20 LE2d 889) (1968); Vansant
      v. State, 264 Ga. 319, 320 (443 SE2d 474) (1994). To establish the
      necessary reasonable suspicion to make an investigative stop, the totality
      of the circumstances must show that the officer had “specific and
      articulable facts which, taken together with rational inferences from
      those facts, . . . [provided] a particularized and objective basis for
      suspecting the particular person stopped of criminal activity.”
      (Punctuation omitted.) Vansant, supra at 320. Although an investigative
      stop cannot be based on an officer’s mere hunch that criminal activity
      is afoot, “[t]his process allows officers to draw on their own experience
      and specialized training to make inferences from and deductions about
      the cumulative information available to them that might well elude an
      untrained person.” (Citations and punctuation omitted.) United States v.
      Arvizu, 534 U. S. 266, 273 (122 SC[t] 744, 151 LE2d 740) (2002). In
      considering the totality of the circumstances in each case, a court must
      avoid evaluating the facts in isolation. Even where each in a series of
      acts may be susceptible to an innocent explanation, taken together they
      may collectively amount to reasonable suspicion justifying an officer’s
      investigative stop. Id. at 274-275. Moreover, “[a] determination that
      reasonable suspicion exists . . . need not rule out the possibility of
      innocent conduct.” Id. at 277.

Rolfe v. State, 278 Ga. App. 605, 606-607 (630 SE2d 438) (2006).

                                          6
      Applying these standards, we find under the totality of the circumstances that

Officers Cook and Herring had a reasonable suspicion that Sims was, or was about

to be, engaged in criminal activity on the Apartments property. Officer Cook saw

Sims, who he knew was not a resident, and another person he could not identify as

a resident, moving about in unusual ways behind various buildings on the Apartments

property. Although it was certainly possible that the two men were engaged in

innocent conduct, the officer also knew of Sims’s recent involvement with marijuana

on the Apartments property, knew of continuing problems with non-residents

engaged in criminal activity on the property, and knew of recent burglaries and illegal

drug sales on the property. All of this knowledge, along with the officer’s

observations, supported reasonable inferences that led him to suspect that Sims and

the person with him were engaged in criminal activity on the property. Moreover,

when Cook approached Sims and the other person and attempted to determine if the

other person was a resident of the Apartments property, Sims told the other person not

to answer the officer. This conduct was additional suspicious behavior. Taken

together, the circumstances were sufficient to give the officers a particularized and

objective basis for reasonable suspicion to stop Sims and the other person to

investigate.

                                          7
      Accordingly, the facts show that Officers Cook and Herring had lawful

authority under the Fourth Amendment to detain and question Sims in a tier two

encounter, and that the officers attempted repeatedly to exercise that authority.

Because the facts show that Sims refused to submit to the assertion of that authority,

Sims was not seized in a tier two encounter. State v. Walker, 295 Ga. 888, 890-895

(764 SE2d 804) (2014). Rather, Sims’s continued resistance to the officers’ lawful

authority to conduct a tier two encounter provided the officers with probable cause

to arrest Sims for obstruction. McClary v. State, 292 Ga. App. 184, 187 (663 SE2d

809) (2008); Spence v. State, 295 Ga. App. 583, 586 (672 SE2d 538) (2009); State

v. Quarterman, 333 Ga. App. 803 (777 SE2d 489) (2015). It follows that the trial

court did not err in denying Sims’s motion to suppress.

      Judgment affirmed. Miller, P. J., and Branch, J., concur.




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