POLICE ENCOUNTERS IN A NUTSHELL
The ordinary citizen’s contact with the criminal justice system begins with a police encounter, or “the stop” of the person. There are three types of stops that are conducted by law enforcement officers. Understanding the difference between these stops could be the difference between a dismissal
First Tier Encounter:A first tier encounter occurs when a citizen and an officer come into contact with each other voluntarily. The voluntariness of this encounter is the key element. Officers, like anyone else are permitted to approach people on the street, in a store, or anywhere else permitted by law and strike up a conversation. When this occurs it is a first tier encounter. What makes it a first tier encounter is the voluntariness of the encounter in that there is no requirement to talk to the officer any more than there is a requirement to talk to anyone else on the street or in a store, etc. Although the officer has on a uniform with a badge and a gun, he or she has no more authority in that moment than anyone else on the street. The problem that occurs during a first tier is when citizens voluntarily engage the officer in conversation or displayed conduct that causes the officer to reasonably suspect that a crime is afoot. Unfortunately, if that occurs, then nothing the citizen says or does is protected by the Fifth or Sixth Amendments. Meaning, if a citizen makes an incriminating statement during a first tier encounter, then it will be considered "voluntary" and can be used during the prosecution of any criminal case that arises out of those statements. The same is true for incriminating conduct that occurs during a first tier encounter.
Second Tier EncounterA second tier encounter is called a "Terry stop". These encounters are named for the 1968 United States Supreme Court decision in Terry v. Ohio. This occurs when a law enforcement officer conducts a brief "brief investigatory stop" of a person. This is more serious than a first tier encounter because the person is generally not free to leave during this brief investigation. However, unlike a first tier encounter, a law enforcement officer is not permitted to perform a Terry stop at will. They must first have what is called "reasonable and articulable suspicion" that a crime has occurred or is in progress. Reasonable and articulable suspicion in more than a hunch, meaning an officer cannot just "think" a crime is afoot but must have some other evidence to support the stop. When this occurs, the officer is permitted to "briefly" detain the citizen and conduct an investigation.
Third Tier Encounter:A third tier encounter is an arrest. According to rulings by the Georgia Supreme Court, an "arrest" occurs when a person's liberty to come and go as they see fit as they see fit is "restrained," even in the slightest manner. An arrest occurs when a reasonable person under the same or similar circumstances believes they are "restrained." An officer cannot arrest a citizen unless they have "probable cause" to make the arrest. Probable cause is more than the reasonable, articulable suspicion needed for a Second Tier, Terry Stop. The third tier encounter or arrest, must be supported by probable cause, which is commonly defined as a reasonable amount of suspicion, supported by sufficient facts that are strong enough to support a prudent and cautious person's belief that certain facts are true. Accordingly, probable cause to make an arrest must be supported by one of two methods prior to the arrest. First, if an officer arrives at a scene and determines first hand sufficient facts support the probability that a crime has occurred or is in progress. When this occurs, the officer is permitted to make an arrest on the scene and follow-up the arrest by procuring a warrant in support of that arrest. The second method permissible to cause an arrest is to apply for an arrest warrant through the legal Magistrate Court in the county where the offense occurred. The application is actually an affidavit, or sworn statement, that is reviewed by the Magistrate Judge to determine if a violation of the Georgia Criminal Code occurred. The Judge can elect to either immediately issue an arrest warrant or set the matter for a hearing whereby both sides will be permitted to present evidence and a final determination made to either dismiss the application or issue the warrant. Once the warrant is issued, the defendant is remanded to the Custody of local law enforcement, where the defendant shall remain until a bond is set and posted by the defendant.