                              FOURTH DIVISION
                               DILLARD, P. J.,
                           RICKMAN and BROWN, 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


                                                                      June 24, 2020




In the Court of Appeals of Georgia
 A20A0759. WOMACK v. THE STATE.

      RICKMAN, Judge.

      Following a stipulated bench trial, Christopher Womack was convicted of

possession of less than one ounce of marijuana. He appeals, contending that the trial

court erred by denying his motion to suppress evidence found during the search and

seizure that led to his arrest. For the reasons that follow, we reverse.

      “In reviewing a trial court’s ruling on a motion to suppress, this Court must

construe the record in the light most favorable to the factual findings and judgment

of the trial court and accept the trial court’s findings of disputed fact unless they are

clearly erroneous.” (Citations omitted.) State v. Turner, 304 Ga. 356, 356 (818 SE2d

589) (2018). Further, “[a]n appellate court also generally must limit its consideration

of the disputed facts to those expressly found by the trial court.” (Citations and
punctuation omitted.) Caffee v. State, 303 Ga. 557, 557 (814 SE2d 386) (2018).

“[T]he trial court’s application of the law to undisputed facts is subject to de novo

review.” (Citations and punctuation omitted.) State v. Clay, 339 Ga. App. 473, 473

(793 SE2d 636) (2016). Finally, the burden of proving the validity of a consensual

search is on the State. See Thompson v. State, 348 Ga. App. 609, 612 (1) (824 SE2d

62) (2019).

      The trial court found as a matter of fact that an officer observed Womack exit

a tobacco shop, “look[] around,” and, when he noticed the officers’s patrol car, begin

to “power walk” in the other direction. The officer believed that this behavior, which

occurred in a “high crime/high drug area,” may have constituted loitering. The officer

then approached Womack, asked if he could see Womack’s identification, and asked

for consent to search his person, which Womack gave.

      The court further found that when the officer attempted to take off Womack’s

backpack in order to perform the search, Womack pulled away, and the officer

grabbed his wrist. The court found that “simultaneously” Womack said, “wait, wait,

there is marijuana in my backpack.” Inside the backpack the officer found a Mason

jar that contained two clear packages of marijuana and a digital scale. The officer then

arrested Womack for possession of less than one ounce of marijuana.

                                           2
      The court concluded as a matter of law that the officer did not detain or seize

Womack when he first approached Womack and questioned him and that Womack

consented to a search. But the court also found that “[b]ased upon [Womack’s]

demeanor, his attempt to avoid the [o]fficer, [and] his presence with a backpack in a

high crime/high drug area, [the officer] had a particularized and objective basis for

suspecting that [Womack] was involved in criminal activity.” The court further found

that after the officer “touched the backpack for the legitimate purpose of conducting

the consent search of [Womack’s] person, [Womack’s] demeanor instantly changed

and he pulled away from the officer,” which justified the officer in believing that

there must be weapons or contraband in the backpack; the court continued, “but

before he could come to this justifiable conclusion, [Womack] made the spontaneous

statement that there was marijuana in the backpack.” The court found that this

statement was made prior to Womack being in custody and not in response to any

questions asked by the officer. Accordingly, the trial court denied Womack’s motion

to suppress.




                                         3
      On appeal, Womack contends the trial court erred by denying the motion to

suppress. He argues that the officer conducted a second-tier encounter1 without

reasonable articulable suspicion of criminal activity and thus his consent was invalid;

that even if the encounter was consensual, the officer did not have Womack’s consent

to search the backpack; and that Womack withdrew his consent to search when the

officer grabbed the backpack.

      1. We first hold that although the trial court did not err in finding that Womack

initially was not detained, the court clearly erred in findings of fact concerning the

precise timing of the events during the officer’s encounter with Womack. Critically,

the undisputed facts show that Womack confessed to marijuana in the backpack after

he had been detained.

      (a) The trial court did not clearly err in concluding that the officer did not

detain Womack initially.

      “The Fourth Amendment test for a valid consent to search is that the consent

be voluntary, and voluntariness is a question of fact to be determined from all the

      1
         “There are at least three types of police-citizen encounters: verbal
communications that involve no coercion or detention; brief stops or seizures that
must be accompanied by a reasonable suspicion; and arrests, which can be supported
only by probable cause.” (Citation and punctuation omitted.) Jones v. State, 291 Ga.
35, 37 (1) (727 SE2d 456) (2012).

                                          4
circumstances.” (Citation and punctuation omitted.) Ohio v. Robinette, 519 U.S. 33,

40 (117 SCt 417, 136 LE2d 347) (1996). “So long as a reasonable person would feel

free to ‘disregard the police and go about his business,’ the encounter is consensual

and no reasonable suspicion is required.” (Citation and punctuation omitted.) Florida

v. Bostick, 501 U.S. 429, 434 (II) (111 SCt 2382, 115 LE2d 389) (1991).

      Here, the officer testified that he exited his patrol car, approached Womack on

foot, and asked to see his identification; that he did not block Womack’s path to the

highway; that Womack could have walked away; and that Womack was cooperative

and was free to leave at the time that he consented to the search. The officer also

consistently testified that he was only conducting a first-tier encounter and that at all

times prior to grabbing Womack’s wrist, he was free to leave. Thus, the trial court’s

finding that the officer did not detain or restrain Womack before asking him for his

identification and consent to search is supported by the evidence and therefore not

clearly erroneous. See Grant v. State, 246 Ga. App. 376, 377 (2) (540 SE2d 634)

(2000).

      (b) The court clearly erred, however, when it found that Womack was not

detained when he confessed to the marijuana.



                                           5
      The court found that when the officer grabbed Womack’s wrist, Womack

“simultaneously” stated that there was marijuana in his backpack. On this topic, the

officer first testified generally that “at the time I grabbed his wrist and I was going to

detain him and he said wait, wait, wait, there is marijuana in my backpack.” Later,

after referring to the police report of the incident that he prepared, the officer

acknowledged that when he grabbed Womack’s wrist, Womack said that there was

“something” in the backpack that was not his. The officer then asked Womack what

the something was. Only then did Womack state that there was marijuana in the

backpack. Thus the correct order of the relevant events is this: the officer took hold

of the backpack; Womack pulled away; the officer grabbed Womack’s wrist;

Womack said that there was something in his backpack; the officer asked what it was;

Womack stated that it was marijuana.

      Next, the court found that the statement that there was marijuana in the

backpack “was made prior to [Womack’s] being in custody and was not made in

response to any questions asked by the officer.” The evidence on this topic was that,

in response to the court’s own question, the officer clearly admitted that once he

grabbed Womack’s wrist, Womack was not free to leave. And, as shown above, after



                                            6
grabbing Womack’s wrist, the officer asked Womack what was in the backpack. It

was then that Womack confessed to marijuana in the backpack.

       Accordingly, at the time that Womack confessed to the marijuana, he clearly

was being detained. “[A] seizure occurs only when the officer, by means of physical

force or show of authority, has in some way restrained the liberty of a citizen.”

(Citation and punctuation omitted.) State v. Walker, 295 Ga. 888, 890 (764 SE2d 804)

(2014); see also Jones v. State, 291 Ga. 35, 37 (1) (727 SE2d 456) (2012). It follows

that unless the officer was legally authorized at that point to detain Womack, the

confession was a product of an illegal detention.

       2. We next hold as a matter of law that none of the reasons articulated by the

trial court justified the officer in grabbing Womack’s wrist.

       (a) The court made multiple somewhat conflicting conclusions of law that

relate to the question of whether the officer was authorized to detain Womack. The

court first held that at the time the officer made contact with Womack, he had

sufficient information to conduct a tier-two stop as follows: The court held as a matter

of fact that

       [The officer] believed that the behavior of the defendant in an area that
       he described as a high crime/high drug area may have risen to the level


                                           7
      of a violation of OCGA 16-11-36[,] the statute which prohibits loitering.



This finding of fact as to what the officer believed is supported by the officer’s

testimony. But the court then held as a matter of law that

      Based upon [Womack’s] demeanor, his attempt to avoid the [o]fficer,
      [and] his presence with a backpack in a high crime/high drug area, [the
      officer] had a particularized and objective basis for suspecting that
      [Womack] was involved in criminal activity.”


In this conclusion, the trial court erred. “At best, the officer’s stated reasons raised a

subjective, unparticularized suspicion or hunch.” Walker v. State, 299 Ga. App. 788,

791 (1) (683 SE2d 867) (2009).

      The officer testified that when he first saw Womack walk out of the store, “[h]e

seemed like a regular person. He just walked out the store.” But because Womack

then “looked around, noticed us and started to power walk off,” the officer developed

a suspicion that “something might be up,” or that Womack was “committing some

kind of crime.” When asked, “What were you suspicious of at that point?,” the officer

replied, “I was just suspicious of a possible crime.” When asked what made him

speak with Womack, the officer replied, “His demeanor.” But the officer was not

certain that Womack even noticed the patrol car before his power walk. He added that

                                            8
he had “located drugs in backpacks in high crime areas late at night,” but he never

testified that seeing Womack wearing a backpack added to his suspicions. The officer

also testified that based on Womack “power walk[ing] away,” he “believed it was

borderline loitering.” The officer referred to unspecified law that (in his own words)

provided that “if somebody notices my vehicle and takes flight, which power walking

would be borderline, that is loitering.” Yet the officer also testified that at the time

that he made contact with Womack, “no crime ha[d] been committed.” Finally, the

officer himself never testified that he had sufficient information to conduct a tier-two

stop.

        Setting aside the suspected loitering for the moment, the remainder of the

officer’s testimony was nothing more than a hunch that “something was up” or that

Womack was “committing some kind of crime.” This is not an objective basis for

conducting a tier-two stop. See Walker, 299 Ga. App. at 791 (1). For example, in

Williams v. State, 327 Ga. App. 239 (758 SE2d 141) (2014), narcotics officers

surveilling apartments where previous arrests had been made became aware of a

strong odor of marijuana coming from one apartment where they had observed heavy

foot traffic coming and going. Id. at 240. Williams arrived carrying a backpack; he

walked into the apartment, stayed less than five minutes, exited with the same

                                           9
backpack, and drove away. Id. at 241. This Court held that evidence from a

subsequent traffic stop of Williams was inadmissible because, even though

Williams’s conduct appeared to fit a pattern of behavior of individuals going in and

out of a suspected drug house, “absent some particularized suspicion of wrongdoing,

merely acting in a way that fits a known ‘pattern’ of criminal activity—does not

justify an investigatory stop.” (Citation and punctuation omitted.) Id. at 244.

Accordingly, the investigatory stop “was not based on a particularized and objective

suspicion that Williams was engaged in criminal activity.” Id. The facts are even

weaker here, where the officer only had a subjective unparticularized suspicion of

wrongdoing.

      With regard to the suggestion that Womack was loitering, the officer appears

to have been referring to OCGA § 16-11-36.2 But the officer failed to remember that


      2
       OCGA § 16-11-36 provides as follows:
      (a) A person commits the offense of loitering or prowling when he is in
      a place at a time or in a manner not usual for law-abiding individuals
      under circumstances that warrant a justifiable and reasonable alarm or
      immediate concern for the safety of persons or property in the vicinity.


      (b) Among the circumstances which may be considered in determining
      whether alarm is warranted is the fact that the person takes flight upon

                                        10
loitering requires a person to be “in a place at a time or in a manner not usual for

law-abiding individuals.” Id. And there is no such testimony here. Indeed, Womack

was leaving a store that was open when the officer saw him.

      In sum, to the extent the trial court concluded that the officer had sufficient

information when he approached Womack to detain him for a second tier

investigation, the trial court erred. See Williams, 327 at 244.

      (b) The court’s other conclusion was that as the officer touched the backpack

as a part of conducting the consensual search, Womack’s “demeanor instantly

changed and he pulled away from the officer.” The court held that, accordingly, “[t]he

officer would have been justified in believing that there must be weapons or

contraband in the backpack.” That the officer at this point thought, in general, that

there could be a weapon in the backpack is supported by the evidence.

      But the officer never testified that he grabbed Womack’s wrist in an effort to

protect himself, or in the name of officer safety, or because he feared that Womack

was about to grab a weapon. “[T]he narrow purpose of a Terry pat-down is to ensure

the safety of the officer and others at the scene, . . . not to obtain evidence of crimes




      the appearance of a law enforcement officer . . . .

                                           11
for use at trial.” Williams v. State, 318 Ga. App. 715, 717 (734 SE2d 535) (2012).3

“Any search which exceeds this constitutionally permissible purpose, therefore, is

deemed ‘constitutionally unreasonable,’ and any evidence resulting from such a

search must be excluded.” (Citation and punctuation omitted.) Id. In Williams, this

Court found that a Terry search exceeded its authorized scope in part because the

officer testified that “Williams presented no danger to him, and he offered no

testimony indicating that he had a reasonable basis for believing that Williams might

be armed with any kind of weapon.” Id. at 718.

      Here, Womack consented to a search of his person, and a search of the

backpack would exceed the scope of the search. See Walker, 299 Ga. App. at 791 (2)

(“The intrusiveness of a consensual search—including the type, duration, and

physical zone of the intrusion—is limited by the permission granted, and only that

which is reasonably understood from the consent may be undertaken.”) (footnote

omitted.) Indeed, the officer admitted that he grabbed the backpack in order to search

Womack’s outer clothing. Furthermore, because the officer and Womack were



      3
        “[W]hen a defendant consents to a pat-down search, such consent extends to
that authorized by the parameters of a search under Terry.” State v. Andrews, 320 Ga.
App. 792, 795 (740 SE2d 748) (2013).

                                         12
engaged in a consensual encounter, Womack was at all times free to terminate the

search or walk away:

      [A] citizen’s ability to walk away from or otherwise avoid a police
      officer is the touchstone of a first-tier encounter. Indeed, even running
      from police during a first-tier encounter is wholly permissible. And an
      individual may refuse to answer or ignore the request and go on his way
      if he chooses, for this does not amount to any type of restraint.


(Citation and punctuation omitted.) Brown v. GeorgiaCarry.org, 331 Ga. App. 890,

896 (770 SE2d 56) (2015). It follows that it was reasonable for Womack to pull away

when he noticed the officer had grabbed his backpack. See Ware v. State, 309 Ga.

App. 426, 428 (710 SE2d 627) (2011) (voluntary consent may be revoked or

withdrawn). Accordingly, the trial court erred by concluding that the officer had

authority to grab Womack’s wrist and detain him merely because Womack pulled

away when the officer took hold of Womack’s backpack.

      In sum, because the officer was not legally authorized to detain Womack when

he grabbed his wrist, the subsequent confession that there was marijuana in the

backpack was a product of an illegal detention.4

      4
        The State has not argued that Womack’s statement was “sufficiently
attenuated or distinguishable from the illegality to be purged of any taint.” (Citation
and punctuation omitted.) Corey v. State, 320 Ga. App. 350, 357 (1) (c) (739 SE2d

                                          13
      For the above reasons, we reverse the denial of Womack’s motion to suppress.

      Judgment reversed. Dillard, P. J., and Brown, J., concur.




790) (2013).

                                       14
