By way of the WindyPundit, Mark Draughn raises a remarkable Georgia Court of Appeals decision in Dryer v. State.

By the officer’s own testimony, Dryer hadn’t broken any traffic laws, and the only reason he pulled Dryer over is because the officer thought it was suspicious that he had been in the lot after the club was closed. That wasn’t enough to constitute reasonable suspicion, and so Dryer’s lawyer tried to have the evidence thrown out. You see, when the police want to ask you a few questions, one of the key legal issues is whether or not they are detaining you at the time. If they are, then they are supposed to have reasonable suspicion that you’ve done something wrong. It’s not a high standard, but it’s not nothing.

The law is that police can walk up (or drive up, as the case may be) to a person and engage them in conversation, asking them questions, just like anyone else. This is described as a tier one Terry stop,* and requires no suspicion. The distinguishing hallmark of such activity is that the person is free not to engage with police and can walk away.

What makes this case remarkable, and is handled adeptly by Windy, is that Jonathon Dryer was stopped by a police officer who put on his cruiser’s blue lights, and yet the trial court held that this was a tier one stop, that Dryer was free to ignore the flashing blue lights and drive away. Don’t try this. It won’t end well. As Windy wrote:

Which means that in some lower trial court there was a judge — a fully-grown adult who I assume is mentally competent to do things like feeding himself without injury and using toilet facilities without soiling his clothes — who actually ruled at the suppression hearing that when a patrol officer flips on all those blue lights on the roof, a reasonable person would assume that he was completely free to just ignore the officer and drive away.

The trial judge relied on another Georgia case, Collier v. State, involving a cop who arrived with lights flashing to investigate a domestic violence case, and saw an unrelated car backing up illegally and parking in a driveway down the road. When the officer went to the car (and ignored the DV case) and questioned the driver, it was held to be consensual, as the approach with lights blazing was not directed at the car or driver. The Court of Appeals distinguished Collier from the Dryer case.

It appears that trial judge’s analysis was clouded by the rubric while ignoring the rationale. The lights in Collier didn’t preclude a tier one stop, so therefore the blue lights didn’t preclude the stop in Dryer from being a tier one stop as well. It’s nuts, but that’s how a rote-thinking, logic challenged judge reads precedent. Or more to the point, how a judge inclined to deny suppression takes comfort in anything remotely providing a justification to do so.

While the idea in Dryer that a person without a death wish is free to ignore the flashing lights atop a police cruiser because it’s only a friendly invitation to stop if you feel like it is ludicrous, it offers an extreme example of the lengths to which courts will go to sustain the fiction of a tier one Terry stop.

Why, it’s argued, should police be prohibited from engaging in the same conversation, discussion, questioning and banter that any other human being is permitted? As the Dryer court explains:

It is well established that in a first-tier encounter, police officers “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.” In fact, “[t]here is no threshold requirement and indeed the 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 and is not encompassed by the Fourth Amendment.” Essentially, as long as a reasonable person would feel free to disregard the police and go on about his business, “the encounter is consensual and no reasonable suspicion is required.”

That flashing blue lights on top of a police cruiser tend to create a definite impression is clear, but how many videos have we seen of people asking the police officer “am I free to go?” The fiction of a Terry stop is that you shouldn’t have to ask; that a reasonable person would know that he’s not being detained and is free to tell the cop that he’s not in the mood to chat, so he’s out of there. Once again, don’t try this at home.

A tier one Terry stop is a fallacy maintained by the courts to empower police to approach and question people in the absence of reasonable suspicion. It’s an excuse. The courts are well aware of “submission to the shield,” that people do not feel free to dispute or disagree, refuse to answer or walk away, from a cop. They fear, as any reasonable person should, that the police officer might not take kindly to such conduct, and pain will ensue.

From the cop’s perspective, failure to comply justifies whatever follows. While courts may call it consensual, police tend to have a very different understanding of the word, often confusing it with blind compliance. If a cop asks you a question, you answer or else. Not all cops, but they don’t have signs on their chests informing you of whether they’re the sort of cop to beat you for fun or let you walk away. Feeling lucky?

The problem could be resolved if courts required police to advise up front that they are not detaining a person and the person is free not to answer, not to engage in conversation and to walk away, thus obviating the fear that failure to comply will result in dire consequences. But then, the concern is nobody will voluntarily talk to cops and one of their most useful tools, fear, will be lost.

The alternative is to require police to announce up front that they are detaining you, whether by turning on the flashing blue lights or saying so in a stentorian voice, and if they don’t make that announcement, then folks can smile, wave and walk away. While a few will do exactly that, most will stay and respond to inappropriate questions anyway, because most people just can’t walk away and not comply or ignore police, flashing lights or not.

There was no need for “mission creep” as held by the trial court in Dryer. Had the cop merely opened his window and called to Dryer, “hey, bud, got a minute?” chances are pretty darned good that Dryer would have stopped and engaged with the cop anyway.

* In order to clear up any potential confusion as to terminology, while the Dryer court calls it a first tier Terry stop, most other courts wouldn’t describe it as a stop at all, and certainly not a Terry stop. After all, if it’s just a cop chatting up a person who is free to ignore the cop and walk away, then it wouldn’t constitute a stop at all under the fiction that reasonable people believe they can ignore cops if they so chose.

The premise for a Terry stop, on the other hand, is that when a person is stopped by a police officer, the cop must have reasonable articulable suspicion. In the Dryer opinion, this is described as a second tier Terry stop, though most other courts would describe it as simply a Terry stop.