Dillard, Presiding Judge. Andrew Joe Farmer appeals from the trial court’s denial of his motion to suppress evidence, contending it erred in doing so when (1) his avoidance of law-enforcement officers did not support a reasonable, articulable suspicion that he was engaged in criminal activity; (2) his mere presence in an area near a suspected crime did not support a lawful detention and arrest; and (3) evidence did not support the court’s finding that officers observed him in possession of a bag prior to his detention. For the following reasons, we reverse. Viewed in the light most favorable to the trial court’s findings and judgment,[1] the record shows that on May 23, 2022, at approximately 4:15 a.m., Waynesboro law enforcement received a computer notification about a triggered alarm at a Dollar General store and immediately suspected that it was a burglary “because of prior incidences of burglaries at that particular location.” As a result, an officer put out a be-on-the-lookout (BOLO) for “anybody suspicious walking around with anything” or “anybody suspicious walking or running or anything like that” in the vicinity of the Dollar General. In short order, deputies with the Burke County Sheriff’s Department heard a dispatch regarding the alarm sounding at the Dollar General, and—because of recent burglaries at other Dollar General stores—responded to assist the city officers. A responding deputy first circled the relevant area and observed a man—later identified as Farmer—emerge from the bushes and trees in a direction headed away from the Dollar General. Farmer looked directly at the deputy, made “a loud noise,” and then proceeded to run between nearby houses. The deputy immediately radioed out a description of Farmer; and another deputy spotted him, gave chase, and tackled him as he attempted to scale a six-foot-tall iron fence. Farmer was then taken into custody, and the deputies searched a red lunch bag he had been carrying, which was found to contain 35 unopened packages of Newport cigarettes and a hammer.[2] Farmer was subsequently indicted on charges of burglary in the second degree and possession of tools for the commission of a crime. He later moved to suppress the State’s evidence on the basis that he was subjected to an unlawful search and seizure.[3] Following a hearing on the matter, the trial court denied Farmer’s motion. We granted Farmer’s application for an interlocutory appeal of the trial court’s order, and this appeal follows. We will consider each of Farmer’s related enumerations of errors together, keeping in mind that when a criminal defendant moves to suppress evidence on the basis it was obtained unlawfully, “the burden of proving that the search and seizure were lawful shall be on the state.”[4] Specifically, Farmer contends his avoidance of law-enforcement officers did not support a reasonable, articulable suspicion that he was engaged in criminal activity. He argues separately that his mere presence in an area near a suspected crime did not support a lawful detention and arrest. We conclude that although officers had a reasonable, articulable suspicion to detain Farmer for further investigation, they did not have reasonable, articulable suspicion to search the bag in his possession. As we have previously explained, there are at least three types of policecitizen encounters: verbal communications involving no coercion or detention; brief stops or seizures that must be accompanied by a reasonable suspicion; and arrests, which can be supported only by probable cause.[5] During a so-called first-tier encounter, law enforcement may not use force because an “officer in such an encounter has no authority to detain or restrict the liberty of a citizen, and the citizen has the right to withdraw from the encounter or resist any such use of force with a proportionate use of force.”[6] So, we have repeatedly held citizens are free to walk or even run away from a first-tier encounter with law enforcement.[7] Here, the deputy who initially spotted Farmer never engaged in a first-tier encounter because before the deputy could even attempt verbal communication or contact, Farmer fled between houses after seeing the deputy. To be sure, law enforcement lacked reasonable, articulable suspicion to justify a second-tier encounter—i.e., a brief stop or seizure based upon a reasonable suspicion—solely on the basis that Farmer was walking in the vicinity of a crime at 4:15 a.m., particularly when the dispatched BOLO was only to look for “anybody suspicious” in the area without any identifiable characteristics of a suspect.[8] But when Farmer fled without provocation prior to the deputy making any form of contact, this—combined with the other factors—was sufficient to provide officers with reasonable, articulable suspicion to warrant further investigation.[9] And based on this reasoning, the trial court concluded that a second-tier detention properly occurred, leading to Farmer’s arrest after deputies searched the red bag. But contrary to the trial court’s conclusion, the search of Farmer’s bag was not supported by reasonable, articulable suspicion. While Farmer was properly detained for purposes of a second-tier investigation,[10] officers immediately engaged in a search of the bag in his possession without reasonable, articulable suspicion to do so. Indeed, the testimony by the deputy who initially spotted Farmer was as follows: I was pulling down the street when I saw Sergeant Hodge running towards the fence with the defendant in front of him and the defendant was trying to hop the big [ ]six-foot-tall iron fence[,] trying to get over it. Whenever Sergeant Hodge got him off the fence, he — we had — he had had a bag. Sergeant Hodge took him into custody. We checked the bag, and it had a bunch of Newport pack cigarettes in it, which was what was missing from the store.[[11]] Sergeant Hodge did not testify at the hearing, and there is no evidence Farmer was questioned, searched, or subjected to further investigation prior to the search of his bag.[12] The hearing testimony supports Farmer’s argument that the trial court erroneously concluded officers saw the bag prior to his apprehension, and the record lacks any testimony to explain how or why the bag came to be searched during a second-tier encounter (e.g., for officer safety, by consent).[13] Indeed, no officer testified to observing a bag or potential weapon in Farmer’s possession when he was first spotted or while he was being pursued. Instead, the bag is only mentioned in testimony regarding what occurred after Farmer was taken into custody, at which point it was searched without any mention of consent or a concern for officer safety.[14] The officers needed—and lacked—a justification to search Farmer’s bag, and so the trial court erred in denying his motion to suppress.[15] For all these reasons, we reverse the trial court’s denial of Farmer’s motion to suppress. Judgment reversed. Rickman and Pipkin, JJ., concur.
