MILLER, P. J., BROWN and GOSS, JJ.
MILLER, PRESIDING JUDGE.
Roshaud Preston was charged with numerous drug-related
offenses, possession of a firearm during commission of a
felony, obstructing a police officer, and loitering after
police found drugs, drug-related paraphernalia, and a weapon
during a search of his car. The trial court granted
Preston's motion to suppress the evidence from the
search, and the State now appeals. After a thorough review of
the record, we conclude that the trial court erred in
granting the motion to suppress because the police officer
had reasonable suspicion of criminal activity when he
approached Preston. The search of the car was permissible
under the automobile exception because the police observed
the firearm in plain sight while obtaining Preston's
identification. Accordingly, we reverse the trial court's
order suppressing the evidence.
There are three fundamental principles which must be followed
when conducting an appellate review of a trial court's
ruling on a motion to suppress. First, when a motion to
suppress is heard by the trial judge, that judge sits as the
trier of facts. The trial judge hears the evidence, and his
findings based upon conflicting evidence are analogous to the
verdict of a jury and should not be disturbed by a reviewing
court if there is any evidence to support them. Second, the
trial court's decision with regard to questions of fact
and credibility must be accepted unless clearly erroneous.
Third, the reviewing court must construe the evidence most
favorably to the upholding of the trial court's findings
and judgment. These principles apply equally whether the
trial court ruled in favor of the State or the defendant.
(Citations, punctuation, and emphasis omitted.) Phillips
v. State, 338 Ga.App. 231 (789 S.E.2d 421) (2016); see
also Hughes v. State, 296 Ga. 744, 746 (1) (770
S.E.2d 636) (2015).
viewed, the evidence showed that a Clayton County police
sergeant was at a gas station when he observed Preston make
contact with multiple people in a five minute period. The
sergeant had been trained to recognize hand-to-hand drug
transactions when he was an undercover detective in the
narcotics division and had made approximately 200 arrests for
hand-to-hand drug transactions. Based on this training, the
sergeant believed that Preston had engaged in hand-to-hand
drug sales. The sergeant contacted two nearby police
officers, relayed what he had observed, and asked them to
investigate. The officers drove into the gas station parking
lot, and shortly thereafter, Preston got into his car and
pulled up to an available gas pump. As Preston exited his car
and walked toward the store, one of the officers approached
him and requested identification. The officer instructed
Preston to sit on the cement near the pump. When Preston gave
the officer his name, the officer asked him to produce his
identification. As Preston opened the car door to get his
identification, and sat in the car, the officer peered inside
the car from his position by the driver's side door. From
that vantage point, the officer observed a firearm in the
car, and he believed that Preston was reaching for the
weapon. Preston admitted that he had a gun in the car.
officer removed Preston from the car, and the two struggled.
Eventually, police were able to handcuff Preston. Police then
tased him, while he was handcuffed, and searched him. During
the search, police found over $1, 000 in cash, in multiple
denominations. In the car, police found numerous Xanax and
oxycodone pills, powder cocaine, crack cocaine, "Flex,
" baggies, and a scale.
trial court suppressed all the evidence, finding that the
police officer who interacted with Preston had observed no
criminal conduct and thus had no reasonable suspicion to
conduct a second-tier stop. The trial court further concluded
that Preston was seized under the Fourth Amendment when he
was instructed to sit on the concrete near the pumps and that
the officer then conducted an unlawful search, requiring the
evidence be suppressed. The State now appeals.
appeal, the State argues that the trial court erred in
concluding that there was no reasonable suspicion because the
collective knowledge of the officers provided a reasonable
suspicion that drug transactions occurred. The State further
contends that the officer detected the odor of marijuana,
which gave him probable cause to search the
We agree that the police conducted a valid search.
the Fourth Amendment, there are three tiers of police-citizen
a first-tier encounter involves only voluntary communications
between police and citizens without any coercion or detention
by law enforcement; a second-tier encounter involves a brief
detention of a citizen by police to investigate the
possibility that a crime has been or is being committed; and
a third-tier encounter is an arrest and must be supported by
(Citations omitted.) Johnson v. State, 343 Ga.App.
310, 312 n. 4 (807 S.E.2d 101) (2017).
It is well-established that "a seizure does not occur
simply because a police officer approaches an individual and
asks a few questions. Rather, an encounter escalates from a
first-tier consensual interaction to a second-tier
investigatory detention only when the individual is
"seized" by the officer, i.e., only when the
officer, by means of physical force or show of authority, has
in some way restrained the liberty of the individual.
(Citations and punctuation marks omitted.) Dougherty v.
State, 341 Ga.App. 120, 124-125 (799 S.E.2d 257) (2017).
Here, the officer initially approached Preston asking for
identification, an interaction that was clearly a first-tier
encounter. Id. When the officer instructed Preston
to sit on the cement near the gas pump, however, that
encounter rose to the level of a second tier. Walker v.
State, 299 Ga.App. 788, 790 (1) (683 S.E.2d 867) (2009)
(encounter became second-tier investigatory detention when
suspect sat on pavement at the ...