Robert Kenner Jr. (Photo: John Disney/ALM)

The Georgia Court of Appeals upheld a Wheeler County Juvenile Court judge's ruling that a teenager who was arrested for obstruction and possession of marijuana should never have been detained or charged because the sheriff who stopped him had no training to back up his contention that he smelled pot.

Defense lawyer Robert Kenner Jr., a solo attorney based in Stone Mountain, said the district attorney did not filed a notice of appeal within the 10-day deadline, which means the charges against client Cameron Brockington cannot be pursued.

Kenner said now that the threat of prosecution no longer looms, Brockington plans to file a lawsuit over the injuries he suffered during the 2018 arrest.

"The officers physically beat my client who was just 16 years old at the time," Kenner said. Brockington required stitches and staples in his head "and his left eye was completely closed." 

Kenner said Brockington's injuries left him with a "lazy eye" that always "kind of droops."

Kenner said Brockington, a former high school football star with no record of run-ins with the law, moved to another county after the incident and gave up playing sports. 

Oconee Circuit District Attorney Timothy Vaughn confirmed he has no plans to appeal.

"I see nothing to gain from it," said Vaughn, although he said he found the court's handling of the case "troubling." 

"I've found that sometimes, in dealing with judges with no trial experience, they tend to kind of miss some of common sense in their rulings," Vaughn said. "To me, they took a simple case and made it complicated."

The case and appeal were handled by Assistant DA Nicolas Parkerson. There were no oral arguments, Vaughn said. 

According to the lawyers and court filings, Brockington was walking along the road in Glenwood in March 2018 at about 10 p.m. when Wheeler County Sheriff Randy Rigdon saw him.

There had been three reported car break-ins within the previous two weeks in the "general area," and Rigdon thought Brockington, who was wearing a backpack, seemed suspicious. He hit his blue lights and got out to ask the young man's name. 

Brockington refused to give it to him and Rigdon, who said he smelled alcohol and marijuana, told Brockington to stand by the sheriff's truck while he radioed for backup.

Brockington instead started walking down the road "briskly."

The sheriff followed and pulled in front of him, and tried to put him in handcuffs but Brockington, described by Vaughn as standing 6 feet tall and weighing 200 pounds, resisted.

Three other officers then arrived, and along with Rigdon "grabbed my client, and threw him on the ground, slammed his head and face on the pavement, and arrested him," Kenner said. "My client maintains that he was not resisting arrest before the physical assault."

A search of his backpack revealed a small quantity of marijuana in a grinder and a bottle of alcohol. Brockington was charged with four counts of obstruction, possession of less than an ounce of marijuana and possession of a drug-related object. 

He was taken to the juvenile facility in Eastman, but "rejected by personnel due to his injuries," Kenner said. "The personnel called EMS so my client could be taken to the hospital but EMS would not take him."

The officer instead took Brockington to his grandmother's house, where he was living, and she took him to the hospital, Kenner said. 

Kenner filed a motion to suppress the evidence based on the officers' lack of probable cause to stop, search and arrest Brockington. 

Wheeler County Juvenile Court Judge Stephanie Burton granted the motion last March, writing that while Rigdon had been perfectly justified in stopping and asking Brockington's name, his actions in pursuing and detaining him were not.

Burton's order cited the three tiers of police-citizen encounters laid out in the U.S. Supreme Court's 1968 decision in Terry v. Ohio: First, a conversation without coercion or detention; second, brief seizures or detentions that "must be supported by reasonable suspicion"; and third, "full-scale arrests that must be supported by probable cause." 

Citizens are not required to identify themselves and are free to walk away from an officer if they have not been detained, she wrote.  

And there was no indication that Brockington was unsteady or glassy-eyed, she said. Rigdon also did not know Brockington was a juvenile, so Brockington was not under suspicion for public drunkenness or underage drinking. 

"The state primarily argues that the smell of marijuana and alcohol provided the sheriff with reasonable suspicion," Burton wrote, but provided no testimony regarding his "training or  experience in the detection of marijuana."

"This court may not infer that everyone who works as a law enforcement officer or holds the position of sheriff can accurately identify the odor of marijuana," the judge wrote, citing to the Georgia Court of Appeals in 2018's Wingate v. State, 347 Ga. App. 341.

Thus, she said, there was no reasonable suspicion on which to base Brockington's tier-two detention and arrest.

In upholding Burton's order, Court of Appeals Judge Anne Elizabeth Barnes wrote that while the court has held that "an officer's detection of the odor of marijuana may establish reasonable suspicion," in such cases "lack of evidence of the officer's training and experience was not raised as an issue on appeal."

"Here, however, the question is squarely before us: must an officer testify as to his training and experience in marijuana odor detection for his observance of the smell of marijuana to constitute reasonable suspicion?" wrote Barnes, with the concurrence of Judges Amanda Mercier and E. Trenton Brown III. 

"We agree with the trial court that the lack of evidence of the officer's training and experience is fatal," Barnes wrote.

Barnes added that the state's other arguments failed to provide that reasonable suspicion. 

"None of [Brockington's] described activities—walking on the side of the road at night, being present in a high-crime area, wearing a backpack, and smelling of alcohol—are … a crime in and of themselves," she said. 

And the "mere refusal to identify oneself to an officer in a tier one encounter is not a crime and cannot establish reasonable suspicion of crime."