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In re A. P.

Court of Appeals of Georgia, Fifth Division

February 15, 2019

IN THE INTEREST OF A. P., a child.

          MCFADDEN, P. J., RICKMAN and MARKLE, JJ.

          McFadden, Presiding Judge.

         A. P. was adjudicated delinquent for violating OCGA § 16-11-132, which prohibits any person under the age of 18 from possessing or having under his control a handgun. A. P. appeals the adjudication of delinquency. A. P. argues that the juvenile court erred by denying his motion to suppress, but we find that the arresting officer had reasonable suspicion to detain him and probable cause to arrest him. He argues that the state failed to prove that he possessed a "handgun" as that term is defined in the Georgia Code, but we find that the evidence was sufficient to permit the juvenile court to find that A. P. possessed a handgun in DeKalb County. So we affirm.

         1. Motion to suppress.

         "On appeal from a motion to suppress, the evidence is viewed in a light most favorable to upholding the trial court's judgment. The credibility of witnesses and the weight accorded their testimony rest with the trier of fact. Thus, the trial court's findings on disputed facts and credibility must be accepted unless clearly erroneous." Groves v. State, 306 Ga.App. 779, 779 (703 S.E.2d 371) (2010) (citation omitted). "[T]he reviewing court may also consider facts that definitively can be ascertained exclusively by reference to evidence that is uncontradicted and presents no questions of credibility, such as facts indisputably discernible from a videotape." State v. Allen, 298 Ga. 1, 2 (1) (a) (779 S.E.2d 248) (2015) (citation omitted). "Where the evidence is uncontroverted and there is no issue as to witness credibility, however, we review de novo the trial court's application of the law to the undisputed facts." Groves v. State, 306 Ga.App. at 779 (citation and punctuation omitted).

         Viewed in this way, the evidence at the suppression hearing, which consisted of the testimony of the arresting officer, footage from body cameras, and an audio recording of a dispatch to police, shows the following. Officer T. G. Jones with the DeKalb County Police Department was one of several police officers who responded to a dispatch about a crime in progress at an apartment complex. The dispatcher, who was communicating with the complainant all the while, informed the officers that the complainant was reporting that a group of 14- to 15-year-old juveniles were in the process of stealing a vehicle outside of Building 13 of the Arbor Crossing Apartments at 10 Arbor Crossing Drive. The dispatcher stated that she had been advised by the complainant that the juveniles had stolen a blue Dodge Journey; that they then were stealing a black Ford sedan with license plate "Delta Zulu Uniform 5301" and a silver Taurus; and that they were getting into the silver Taurus.

         The dispatcher stated that there were five males and one female. The dispatcher continued to update the officers and stated that the complainant was now advising her that the group consisted of about 10 juveniles; that police had arrived at the scene; and that the juveniles had run off, although in what direction was not clear.

         Officer Jones was the first officer at the scene. He was familiar with the apartment complex and immediately went to building 13. Officer Jones stopped A. P., who he believed to be 15 or 16 years old, and another male because they were walking away from the area where the complainant said the cars were being stolen. Officer Jones had another officer stand with the two boys while he walked around the building looking for more juveniles and the cars. He returned, then walked A. P. and the other boy to building 9, where officers were standing with other juveniles. Officer Jones had A. P. put his hands on his head as they walked.

         As they were walking toward building 9, Officer Jones saw a "hard, heavy" object in A. P.'s front, right pocket. He asked A. P. to identify the object, and A. P. said it was a cell phone. Once they reached the other officers, Officer Jones patted down A. P. for officer safety and felt the chamber of a revolver. Officer Jones arrested A. P. and confiscated a small-caliber revolver.

         The juvenile court orally denied A. P.'s motion to suppress, ruling that "because of the reasonable suspicion [the officer] had the right to at that time stop the child."

         A. P. argues that the juvenile court erred by denying his motion to suppress because Officer Jones lacked reasonable suspicion to briefly seize him and lacked probable cause to arrest him. We disagree.

         The United States Supreme Court has established "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." State v. Allen, 330 Ga.App. 752, 755 (769 S.E.2d 165) (2015) (citations and punctuation omitted). A. P. and the state agree that Officer Jones' encounter with A. P. was initially a second-tier encounter that required reasonable suspicion.

         To establish the required reasonable suspicion,

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. Although an investigative stop cannot be based on an officer's mere hunch that criminal activity is afoot, this process allows officers to draw on their own experience and specialized training to make ...

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