SECOND DIVISION

MILLER, P. J.,

MERCIER and COOMER, 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.

https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS

COURT. ALL FILINGS MUST BE SUBMITTED WITHIN

THE TIMES SET BY OUR COURT RULES.

October 23, 2020

In the Court of Appeals of Georgia

A20A1212, A20A1213. THE STATE v. BIZZARD; and vice versa.

MERCIER, Judge.

Kasib Bizzard wasindicted on charges of possession of a controlled substance

with intent to distribute, possession of a firearm during the commission of a felony,

theft by receiving stolen property (the firearm), and possession of a firearm by a

convicted felon during the commission of a crime. He moved to suppress evidence

of drugs and a firearm found on or near him during his arrest, contending that officers

lacked reasonable, articulable suspicion to stop him and that they arrested him

without probable cause. The State countered that officers had reasonable suspicion

to temporarily detain Bizzard,such that his attempt to walk away and resist detention

gave them probable cause to arrest him for obstruction. 
The trial court granted the motion to suppress the drug evidence, but denied the

motion as to the gun evidence. In Case No. A20A1212, the State appeals the

suppression of the drug evidence.1 Bizzard cross-appeals in Case No. A20A1213,

challenging the trial court’s refusal to suppress the gun evidence. For reasons that

follow, we affirm the judgment in Case No. A20A1212, and we reverse the judgment

in Case No. A20A1213. 

“In reviewing a ruling on a motion to suppress, we review the trial court’s

factual findings for clear error and its legal conclusions de novo.” Kennebrew v.

State, 304 Ga. 406, 409 (819 SE2d 37) (2018); see also State v. Underwood, 283 Ga.

498, 500 (661 SE2d 529) (2008).

At a hearing on the motion to suppress, the State called only one witness, a

police officer (“agent”) with the Savannah Police Department. The agent was part of

a task force formed in response to a rise in violent crimes in the city. On December

29, 2018, he was working undercover, assigned to look for possible crimes near two

adjacent houses on Collins Street, where there had been multiple reported incidents

of narcotics and other criminal activity over the previous two years. The agent heard

1 See OCGA § 5-7-1 (a) (4), permitting the State to file a direct appeal from an

order suppressing evidence.

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over the radio that a crowd of people had gathered in front of the specified addresses,

and he was asked to drive by the area. 

When the agent approached in an unmarked vehicle, he noticed a man standing

in the middle of Collins Street, “looking up and down the street, which usually

indicates a countersurveillance[.]” The agent also saw about eight to ten people in a

crowd. One person was leaning over, “which is usually like they were rolling dice.”

The agent added that “[p]art of the crowd was around that area” and, based on his

training and experience, a group of people rolling dice against a curb is “usually a

sign of someone gambling . . . . [i]llegally.” About half of the group was standing in

the road. The agent reported his observations by radio to the task force, drove past the

group, and parked a short distance away. 

The agent heard over the radio that the plan was for officers driving marked

vehicles to approach the crowd, activate their vehicles’ blue lights, and detain the

people who were on the scene. The agent drove back to the area and, upon arriving,

saw multiple marked vehicles. He also observed Bizzard being “picked up” and

“assisted off the ground” by police officers, who then escortedBizzard to a police car.

The agent saw a firearm in “practically the same spot” where Bizzard “was taken off

the ground.” The agent “came up and detained [Bizzard] on his left” arm, while

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another officer “had him on one side.” The other officer searched Bizzard, finding a

pill bottle containing heroin in Bizzard’s pocket. The agent noted that while the

evidence was being recovered from Bizzard, he was “being disorderly.” 

Asked where Bizzard had been standing in the group when the agentfirst drove

through, he testified that he “couldn’t pick out an individual,” as “[i]t wasjust a group

of people down there.” He added that Bizzard was not the person he saw standing in

the middle of the street, and he did not identify Bizzard as the person he saw possibly

rolling dice. The agentfurther testified that he did not see Bizzard walking away from

police vehicles. The State introduced video footage from the body camera of another

officer who arrived on the scene. That footage did not show any persons fleeing, and

it depicted no events involving Bizzard prior to him being held down or lifted off the

ground. During this encounter, Bizzard asserted that he “didn’t do anything” and

“was just walking up the street.” 

The trial court issued two orders on the motion to suppress. In the first order,

it found, based on the totality of circumstances (namely, the history of the property,

the individual standing in the intersection, and the crowd gathered around an

individual who appeared to be rolling dice), that the officers had reasonable,

articulable suspicion of criminal activity that justified a brief second-tier stop of “the

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group.” The court added that the second-tier encounter had risen to a third-tier

encounter or full arrest by the time the agent witnessed officers picking Bizzard up

off the ground, after which they found the drugs and gun. The trial court did not

address whether probable cause authorized the arrest, instead asking the parties to

brief the matter. It found, however, that Bizzard lacked standing to contest the

admissibility of the firearm seized in the encounter because he had stated at the scene

that the gun was not his.

Through subsequent briefing, the State argued thatBizzard’s effort to flee from

the second tier stop and resist detention “constituted the offense of [o]bstruction

providing [p]robable [c]ause for a tier three arrest and a search incident to that arrest.”

The trial court rejected this claim in its second order, finding that “while probable

cause may have indeed existed for [Bizzard’s] arrest [for obstruction], the evidence

was not presented.” The court noted that the testifying agent did not arrive until

Bizzard was being held on the ground, and the agent offered no testimony regarding

Bizzard’s encounter with police prior to that time. Concluding that the State had not

demonstrated probable cause for the arrest, the trial court suppressed the drug

evidence seized from Bizzard’s pocket. 

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Case No. A20A1212

1. The State contends that the trial court erred by applying a standard of

“beyond a reasonable doubt,” rather than “probable cause,” in deciding whether

Bizzard’s arrest for obstruction was lawful. This contention is without merit. 

The Fourth Amendment protects a person’s right to be secure

against unreasonable searches and seizures. When a defendant raises a

Fourth Amendment claim, we must be mindful that there are 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. 

Lewis v. State, 307 Ga. App. 593, 594 (705 SE2d 693) (2011) (citations and

punctuation omitted). The State has the burden of proving the lawfulness of a search

and seizure. OCGA § 17-5-30 (b). 

In its order, the trial court did not state that it was applying a “beyond a

reasonable doubt” standard to the motion to suppress. Rather, it concluded that the

State failed to present evidence that probable cause existed to arrest Bizzard. The

proper standard was applied.

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Moreover, the record supports the trial court’s conclusion. The concept of

probable cause requires that police “possess knowledge of objective facts and

circumstances that would lead a reasonable officer to believe that the suspect has

committed or is committing a crime.” State v. Carr, 322 Ga. App. 132, 134-135 (744

SE2d 341) (2013). The State claims that probable cause existed because Bizzard

resisted officers who were detaining himduring the second tier stop. See OCGA § 16-

10-24 (a) (the crime of obstruction results when a person “knowingly and willfully

obstructs or hinders any law enforcement officer . . . in the lawful discharge of his or

her official duties[.]”). A key issue, however, is when Bizzard was arrested. In

analyzing the timing of an arrest, a court considers “whether the individual was

formally arrested or restrained to a degree associated with a formal arrest[.]” GalindoEriza v. State, 306 Ga. App. 19, 23-24 (1) (701 SE2d 516) (2010) (citation and

punctuation omitted). The question “is whether a reasonable person in the suspect’s

position would have thought the detention would not be temporary.” Id. at 24 (1)

(citation and punctuation omitted).

When the testifying agent arrived on the scene, Bizzard was being restrained

by officers and moved to a police car. The trial court determined that Bizzard was

already under arrest for obstruction at that point, and we find no error. A reasonable

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person in Bizzard’s position would have thought that the detention was not

temporary. See Galindo-Eriza, supra. The State, therefore, must demonstrate that

probable cause to arrest existed before the agent arrived. But other than Bizzard’s

statement that he was “just walking up the street,” the record is devoid of any facts

regarding Bizzard’s pre-arrest conduct or the officers’ interactions with him. The

video does not shed light on this inquiry, and no one other than the agent testified.

We simply do not know what occurred before the agent’s arrival. It is unclear what

Bizzard was doing when officersfirst entered the area, how Bizzard responded to the

officers, or whether those officers had reasonable groundsto believe thatBizzard was

engaging in obstruction. 

On appeal, the State notesthat the testifying agent observed Bizzard struggling

with officerss after the agent arrived. This post-arrest conduct, however, cannot

support a finding of obstruction where the initial arrest lacked probable cause. See

Bacon v. State, 347 Ga. App. 689, 690 (820 SE2d 503) (2018) (“A police officer is

not discharging his lawful duties when he is making an unlawful arrest, and a person

who resists an unlawful arrest does not hinder the officer in the lawful discharge of

his official duties.”). Accordingly, Bizzard’s effort to resist the initial arrest could not,

itself, give police officers probable cause to arrest him. See Ewumi v. State, 315 Ga.

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App. 656, 663 (1) (b) (727 SE2d 257) (2012) (officer lacked probable cause to arrest

defendant for battery allegedly committed when defendant resisted unlawful arrest;

“because that arrest was unlawful, [defendant] wasjustified in resisting the attempted

arrest”); State v. Dukes, 279 Ga. App. 247, 251 (630 SE2d 847) (2006) (officers

lacked probable cause to arrest defendant for obstruction based upon flight where

defendant had the right to flee from first tier encounter).

Given the record before us, we must conclude that the State failed to

demonstrate probable cause for Bizzard’s arrest. And because of thisfailure, we must

find that the search of Bizzard’s person following the arrest was unlawful. See Dukes,

supra. Accordingly, the trial court properly suppressed the evidence discovered

during the search. See Ewumi, supra at 664 (1) (b); Carr, supra at 136-137; Dukes,

supra. 

2. In a separate claim of error, the State contends that the evidence “satisfies

the higher [reasonable doubt]standard applied by” the trial court. As noted above, the

trial court did not apply a “beyond a reasonable doubtstandard”; it properly analyzed

whether probable cause existed for Bizzard’s arrest. And we agree with the trial

court’s conclusion that no probable cause existed here. The judgment in Case No.

A20A1212 is affirmed. 

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Case No. A20A1213

3. Bizzard contends that the trial court improperly denied his motion to

suppress evidence of the firearm based on standing. We agree.

“The indirect fruits of an illegal search or arrest should be suppressed when

they bear a significantly close relationship to the underlying illegality.” State v.

Gravitt, 289 Ga. App. 868, 871 (2) (b) (658 SE2d 424) (2008) (citation and

punctuation omitted). Even “assuming arguendo [Bizzard] had lacked standing to

contest the legality of the seizure, he nevertheless wassubjected to an unlawful arrest

which resulted in and tainted the seizure of the [firearm], and the sanction in such

circumstances. . . isthat of evidence suppression.” State v. Brown, 201 Ga. App. 771,

773 (3) (412 SE2d 583) (1991) (emphasis and punctuation omitted). The trial court

erred by not suppressing evidence of the firearm found during an arrest that,

according to the record before us, was not supported by probable cause. 

Judgment affirmed in Case No. A20A1212 and reversed in Case No.

A20A1213. Miller, P. J., and Coomer, J., concur.

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