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Jose Hernandez-Espinov.The State

CourtCourt of Appeals of Georgia
Docket No.A13A1434
DecidedNovember 19, 2013
JudgesCourt of Appeals of Georgia
Tags
CriminalCriminal ProcedureFourth AmendmentSearch and SeizureMotion to SuppressReasonable SuspicionWarrantless SearchStandard of ReviewReversalDissent
Case Summary

A uniformed officer approached Jose Hernandez-Espino at an apartment complex known for drug activity and asked whether he lived there. After Hernandez-Espino denied possessing drugs, the officer ordered him to “give me the drugs you just bought,” requested consent to search, and found crack cocaine in his pocket. The trial court denied Hernandez-Espino’s motion to suppress. The Georgia Court of Appeals reversed. It held that the officer’s imperative language transformed the initial consensual contact into a second-tier seizure because a reasonable person would not have felt free to ignore the command or terminate the encounter. The officer lacked reasonable, articulable suspicion: his belief that Hernandez-Espino was lying and his presence near a suspected drug location amounted only to an unparticularized hunch. The resulting detention was unlawful, and the consent that followed was tainted rather than an independent act of free will. Because the hearing evidence was uncontroverted and the trial court made no relevant credibility finding, the appellate court reviewed the legal question de novo. The majority reversed the denial of suppression. Presiding Judge Doyle, joined by Judges Boggs and Branch, dissented, reasoning that the encounter remained first-tier and that the trial court’s finding should have been respected. The dissent would have affirmed.

Opinion

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Jose Hernandez-Espino V. The State — The Atlanta Gleaner