                                 FIFTH DIVISION
                                  PHIPPS, P. J.,
                           DILLARD and PETERSON, JJ.

                     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


                                                                      October 4, 2016




In the Court of Appeals of Georgia
 A16A0788. GAITHER v. THE STATE.

       PHIPPS, Presiding Judge.

       Yolande Gaither was charged with two counts of driving under the influence

(“less safe” and unlawful alcohol concentration), an open container violation, and

driving with an expired license.1 She filed a motion to suppress evidence seized as a

result of a traffic stop, asserting, inter alia, that the arresting officer lacked articulable

suspicion to stop her. The trial court denied Gaither’s motion, and we granted her

application for interlocutory appeal. For the reasons that follow, we reverse.

       During Gaither’s suppression hearing, White County Deputy Sheriff Jared

Baker testified that, at approximately 1:38 a.m. on March 23, 2014, he saw Gaither’s

truck turn left from a turn lane on Highway 17 “into the side entrance to the Hardman

       1
           OCGA §§ 40-6-391, 40-6-253, 40-5-20 (a).
House,” a business establishment that was closed at the time. Without explaining

what type of establishment the Hardman House was, the officer testified that “[t]hat

area is generally closed to the public.” As he followed Gaither up a hill, she passed

a driveway about 50 feet “before the top where the gate is that says the road is

closed.”

      As soon as Gaither passed that driveway and reached the gate, the officer

activated his patrol vehicle’s blue lights. Gaither turned her truck around in front of

the patrol car and began to drive back toward Highway 17. As she passed the patrol

vehicle, the officer verbally instructed her to stop the car. Gaither proceeded “a few

more feet” before stopping her truck behind the patrol vehicle. With the blue lights

still flashing, the officer exited his vehicle and approached the driver’s side of

Gaither’s truck. During the traffic stop, the officer saw an open container of alcohol

in her vehicle, and he ultimately arrested Gaither for DUI.

      When asked why he had activated his vehicle’s blue lights, the officer

responded:

      A couple of the things we looked at is, one, that the area is closed and
      we do have – have some[ ]things going on of that nature around that
      time in the evening. Me being a traffic enforcement officer, I also
      believe that people who see that I’m behind them and turn and go to a

                                          2
      closed area like that may be trying to avoid detection for a traffic – you
      know a traffic offense that’s going on. . . . At the point where she passed
      that only driveway that I believe she could have went through lawfully,
      when she passed that I realized that she was more suspicious than to –
      she didn’t know where she was. She possibly was going up there . . . to
      commit a crime.


      During cross-examination, the officer testified that he did not observe Gaither

commit any traffic offenses before he activated his vehicle’s blue lights. Gaither had

turned off Highway 17 by using a turn lane on the highway, and there were no signs

indicating that the road onto which she had turned was closed to the public. The

officer did not know who owned a building located at the top of the hill, which he

believed to be abandoned, and the Hardman House was located “below” the road onto

which Gaither had turned. The officer emphasized that he activated his vehicle’s blue

lights “solely because it was a suspicious vehicle.”

      At the hearing, the State conceded that this was a second tier stop but argued

that it was sufficiently supported by reasonable suspicion. The trial court agreed and

denied Gaither’s motion to suppress. The court found that “the traffic stop began as

a ‘citizen’s assist’ or a ‘suspicious vehicle,’ and given the late hour and the closed

state-owned historical site, there was legitimate and articulable reasonable suspicion


                                          3
for Deputy Baker to conduct a traffic stop on [Gaither’s] vehicle in accordance with

his duty as a law enforcement officer.” The court noted further that Gaither had failed

to stop when the officer activated his blue lights, driving past his marked patrol

vehicle before the officer verbally requested her to stop.

      On appeal, Gaither argues that, when the officer turned on his vehicle’s blue

lights, their interaction became a second tier encounter requiring reasonable,

articulable suspicion. She contends that the State did not meet its burden of showing

that the officer had a particularized and objective basis for suspecting that she was,

or was about to be, engaged in criminal activity when he initiated the stop.

      “[O]n a motion to suppress, the State has the burden of proving that a search

was lawful.”2 In reviewing a trial court’s decision on a motion to suppress, this Court

accepts the trial court’s ruling on disputed facts unless clearly erroneous, but reviews

the application of the law to the facts de novo.3 This Court construes the evidence in

the light most favorable to the trial court’s ruling.4



      2
        State v. Hammond, 313 Ga. App. 882, 883-884 (723 SE2d 89) (2012)
(punctuation and footnote omitted).
      3
          Id. at 884.
      4
          State v. Richards, 327 Ga. App. 58 (755 SE2d 367) (2014).

                                           4
      “At least three types of police-citizen encounters exist: verbal communications

involving no coercion or detention; brief ‘stops’ or ‘seizures’ that require reasonable

suspicion; and ‘arrests,’ which can only be supported by probable cause.”5 “In a first-

tier encounter, an officer 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.”6 “[A] citizen’s ability to walk away from or otherwise

avoid a police officer is the touchstone of a first-tier encounter. Such conduct may not

provide the basis for elevating the encounter to a second-tier Terry7 stop.”8

      “In a second-tier encounter, . . . an officer may stop and detain a person briefly

when the officer has a particularized and objective basis for suspecting the person is

involved in criminal activity.”9 “[T]he officer must possess more than a subjective,


      5
       State v. Gauthier, 326 Ga. App. 473, 475 (1) (756 SE2d 705) (2014) (footnote
omitted).
      6
          Hammond, supra at 884.
      7
          Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LE2d 889) (1968).
      8
       See Groves v. State, 306 Ga. App. 779 (703 SE2d 371) (2010) (punctuation
and footnotes omitted).
      9
          Hammond, supra (punctuation and footnote omitted).

                                           5
unparticularized suspicion or hunch[.]”10 Rather, an investigative stop “must be

justified by specific and articulable facts which, taken together with rational

inferences from those facts,” give rise to reasonable suspicion of criminal activity.11

“[T]he question presented to the trial court [is] whether the investigative stop was

proper in that it was justified by some objective manifestation that the person stopped

is, or is about to be, engaged in criminal activity.”12 “[A]bsent some particularized

suspicion of wrongdoing, merely acting in a way that fits a known ‘pattern’ of

criminal activity—does not justify an investigatory stop.”13 Thus, a set of generally

suspicious facts may warrant close observation by law enforcement, and yet not

justify a second-tier encounter.14

      10
        Id. (punctuation omitted). See also Dryer v. State, 323 Ga. App. 734, 739 (2)
(747 SE2d 895) (2013) (“[A]n officer’s subjective feeling that a person is acting in
a suspicious way does not amount to a particularized and objective basis for
suspecting him of criminal activity.”) (punctuation and footnote omitted)).
      11
          Williams v. State, 327 Ga. App. 239, 241-242 (758 SE2d 141) (2014)
(citation omitted).
      12
           Id. at 242 (citation omitted).
      13
           Id. at 244 (emphasis in original; citations and punctuation omitted).
      14
         See State v. Winnie, 242 Ga. App. 228, 230 (529 SE2d 215) (2000) (holding
that reasonable suspicion was lacking where an officer saw a truck turn into the
parking lot of a closed Salvation Army facility at 4:00 a.m., and then begin to drive
away when the officer approached).

                                            6
      In its ruling, the trial court noted Gaither’s failure to stop immediately when

the officer activated his blue lights. The State contends on appeal that Gaither “was

not actually detained until she stopped her car after15 driving past [the officer] and his

flashing blue lights” and that her “act of fleeing” gave the officer reasonable

suspicion to detain her.

      1. Viewing the evidence in favor of the ruling, the trial court clearly erred in

finding that Gaither failed to stop when the officer activated his blue lights. The

officer testified that he activated his blue lights because he suspected Gaither was

“going up there to . . . commit a crime.” A reasonable person would not have felt free

to leave upon seeing the patrol vehicle’s blue lights and hearing the uniformed

officer’s instruction to stop a few seconds later.16

      Gaither’s limited maneuvering in those intervening few seconds is

distinguishable from the conduct at issue in cases such as State v. Stilley, in which we

held that a suspect’s failure to pull over when an officer activated his blue lights and



      15
           (Emphasis in original.)
      16
         See Dryer, supra at 735, 737 (1) (holding that a second-tier encounter
occurred where an officer in a patrol car approached a car in the parking lot of a
country club that had been closed for at least two hours, the car began to exit the lot,
and the officer activated his patrol lights).

                                            7
siren was sufficient to purge the taint of an otherwise illegal stop.17 In Stilley, we

reversed the grant of a motion to suppress where the defendant violated OCGA § 40-

6-395 (a) by driving two to three miles after an officer activated his lights and siren

before a second officer helped force the defendant to stop.18 Here, Gaither merely

turned her truck around and stopped a few feet past the officer’s vehicle.

      2. The trial court erred in finding that the officer articulated “specific and

articulable facts” sufficient to give rise to “a particularized and objective basis” for

suspecting Gaither of criminal activity so as to authorize the traffic stop.19 First, the

officer did not see Gaither commit a traffic violation. Second, there was no evidence

that he had received any report of criminal activity in the vicinity. Even if the officer

had testified “that thefts are common at this time of night,” as the trial court found,

such a statement would have been no more than an unparticularized suspicion or




      17
         261 Ga. App. 868, 870-871 (584 SE2d 9) (2003). See also Prather v. State,
279 Ga. App. 873, 876-877 (633 SE2d 46) (2006) (where the defendant fled by
vehicle and then on foot after an officer approached the defendant’s vehicle in a
parking lot, activated his blue lights, and instructed him to put his hands on the
steering wheel).
      18
           Id.
      19
           See Williams, supra at 241-242.

                                             8
hunch, which is insufficient to justify an investigative stop.20 Third, the deputy

testified that there was no indication that the road on which he stopped Gaither was

closed to the public before the gate at the top of the road.21 To the contrary, Highway

17 contained a turn lane leading to the road, which, the officer testified, led to at least

one driveway. Similarly, although the trial court found that the location was a “closed

state-owned historical site,” the record does not support this finding. Accordingly, the

trial court erred in denying Gaither’s motion to suppress.

       Judgment reversed. Dillard and Peterson, JJ., concur.




       20
         See Smith v. State, 245 Ga. App. 613, 615 (538 SE2d 517) (2000) (stop was
not justified where suspect was merely parked after midnight in a general area of
reported burglaries and pulled away quickly as an officer drove toward his car).
       21
         See Dryer, supra at 739 (2) (“[T]here is no evidence in the record indicating
that the officer specifically believed that Dryer was trespassing, but only generally
that he did not think there was any reason for Dryer to be there.”).

                                            9
