PETERS v. THE STATE, 242 Ga. App. 816

Barnes, Judge. Carlos Peters appeals from his conviction of possessing cocaine with the intent to distribute it. In this appeal, Peters argues (1) the trial court erred by denying his motion to suppress; (2) insufficient evidence supports his conviction; and (3) the trial court erred when it recharged the jury without notifying him or his counsel. For reasons that follow, we reverse.

The evidence presented during the motion to suppress hearing, and at trial,* showed that two armed and uniformed DeKalb County police officers prevented Peters from getting into his car and leaving an apartment complex because they “observed a black male, the defendant, come out of a breezeway in a hurried fashion.” The officers testified that the breezeway from which Peters exited was known for heavy drug sales. When Peters saw the officers, he became very nervous and continued to hurry out of the complex toward his car.

After stopping Peters and asking him for identification, Officer West reached into Peters’ pants and removed a “three to four-inch cookie-sized chunk” of crack cocaine and two bags of marijuana. 1.

In his first enumeration of error, Peters asserts the trial court should have granted his motion to suppress because the officers did not have the articulable suspicion necessary to detain him. [United States] Supreme Court holdings sculpt out, at least theoretically, 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. (Citations and punctuation omitted.) McAdoo v.

State, 164 Ga. App. 23, 26 (1) (295 SE2d 114) (1982). In the first [tier], 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. The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen.

In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity. (Citations and punctuation omitted.) McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997). In order to address Peters’ first enumeration of error, we must first determine whether the initial contact between the officers and Peters should be categorized as a first- or a second-tier-encounter.

Because the officers verbally commanded Peters to stop and prevented him from entering his automobile, we find that it was a second-tier encounter for which a reasonable, articulable suspicion of criminal activity was required. See State v. Blair, 239 Ga. App. 340 (521 SE2d 380) (1999). In this case, the officers lacked the requisite suspicion. Peters did not flee from a high drug sale area at the sight of the officers. Compare Illinois v. Wardlow, 528 U. S. 119 (120 SC 673, 145 LE2d 570, 575) (2000) (defendant “looked in the direction of the officers and fled”); Harris v. State, 205 Ga.

App. 813, 814 (1) (423 SE2d 723) (1992) (when defendant and others “saw the patrol car, they began running”). Instead, Peters continued hurrying toward his car, just as he was before he spotted the officers. See State v. Winnie, 242 Ga. App. 228 (529 SE2d 215) (2000). Appearing nervous in the presence of police officers also falls short of the reasonable, articulable suspicion required by Terry. See Holt v. State, 227 Ga. App. 46, 50 (487 SE2d 629) (1997).

Since the officers stopped Peters without a reasonable, articulable suspicion that he was engaged or about to engage in criminal activity, the trial court erred when it denied his motion to suppress evidence seized as a result of this unlawful stop and seizure of his person. 2. Based on our holding in Division 1, Peters’ remaining enumerations of error are moot. Judgment reversed. Blackburn, P. J, and Eldridge, J., concur fully and specially. When reviewing a trial court’s ruling on a motion to suppress, we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing.

Sanders v. State, 235 Ga. 425, 431-432 (2) (219 SE2d 768) (1975).