, Presiding Judge. In this appeal following the grant of an interlocutory application, Keith Shumate challenges the trial court’s denial of his motion to suppress. Specifically, Shumate argues the trial court erred by finding that law enforcement was authorized to (1) arrest him for giving a false name during a voluntary encounter and, alternatively, (2) detain him to conduct a K-9 free air drug sniff of his car. Because we agree with Shumate on the latter point, we reverse. When considering the denial of a motion to suppress, we view the evidence “in favor of the court’s ruling, and we review de novo the trial court’s application of the law to undisputed facts.”[1] So viewed, the record shows that—at approximately 2:30 a.m. on November 30, 2020—two Polk County Police Department officers were on routine patrol with their K-9 Unit when they decided to stop at a convenience store for a drink and make “consensual encounters” with patrons. When the officers arrived, they noticed a small passenger car in the parking lot with two occupants and fogged windows, which they found suspicious because it could indicate the car had been parked for a while. As a result, they decided to approach the vehicle.[2] The officers approached the driver and passenger sides of the car, respectively. No lights or sirens were activated on their patrol car at the time, and they did not draw their weapons. The officer who approached the driver’s side, Sergeant Smith, tapped on the window. Shumate opened the door and explained that he was working on the car’s broken door, the handle of which was in his hand. A conversation then ensued, during which Smith inquired as to Shumate and the passenger’s itinerary. Shumate claimed they were coming from the passenger’s mother’s home in Alabama right before Smith asked him for his driver’s license. Shumate produced a driver’s license and handed it to Smith, who believed the person pictured on the license was not Shumate. Even so, Smith confirmed the driver’s license was valid with no outstanding warrants before he continued speaking with Shumate. Although the encounter began as a voluntary one, Smith testified that once he recognized Shumate was not the person pictured in the driver’s license, Shumate was no longer free to leave or ignore his requests—though he did not say this to Shumate. Indeed, Smith testified that he “wanted [Shumate] to believe that it was still just a consensual encounter, so as not to raise any alarms.” But as Smith was checking the driver’s license, the other officer on the scene—Officer Mitchell—was standing by the passenger’s side of the vehicle. And just after Smith finished checking Shumate’s purported license (but before it could be returned), Mitchell noticed through the rear-passenger window that Shumate was holding a screwdriver, at which point Mitchell ordered Shumate to put the screwdriver down. Smith then ordered Shumate to exit the vehicle. After he did so, Shumate was placed in handcuffs for officer safety and led to the side of the convenience store. The officers then took separate statements from Shumate and the passenger before comparing the information they were given. According to Smith, this type of separate questioning is a tactic he and Mitchell use in criminal and drug interdiction; and if Shumate and the passenger gave the same story, Smith would have “just address[ed] the false name and date of birth.” But while Shumate again told Smith the pair were returning from the passenger’s mother’s house in Alabama, the passenger—Jacquline Washington—told Mitchell they were returning from her mother’s home in Fulton County. According to Mitchell, most of his questions to Washington came after she was removed from the vehicle because the front-passenger window had been covered with tape. The officers subsequently asked for consent to search the vehicle, and Shumate declined the request.[3] Without consent to search, Smith decided to conduct a K-9 free-air search due to the conflicting statements about the itinerary, the time of night, concern for officer safety, and the production of a driver’s license that did not depict Shumate. The K-9 alerted to the front passenger tire-well of the car, after which an interior search of the vehicle was conducted. That search produced a small amount of methamphetamine in the center console and THC cartridges in the glove box. A second K-9 alert to the passenger tire-well led Smith to believe there were more drugs in the vehicle; and so he removed the glove box, which led to the discovery of a plastic bag containing methamphetamine (located behind the passenger tire-well). Following these discoveries, Smith spoke with Shumate again, informing him of what the officers recovered and confronting him about the driver’s license. Shumate then provided his real name and date of birth before both he and Washington were arrested. Shumate was subsequently indicted on charges of trafficking methamphetamine, possessing methamphetamine with the intent to distribute, possession of methamphetamine, possession of tools for the commission of a crime, and giving false information to a law-enforcement officer. Shumate filed a motion to suppress those statements and evidence, but the trial court denied it after a hearing. This appeal by Shumate follows our grant of an application for interlocutory appeal.[4] 1. First, Shumate argues the officers were not authorized to arrest him for the offense of giving a false name during a voluntary, first-tier encounter because they were not engaged in “official duties” at that time. We disagree with Shumate’s assertion that the officers were not engaged in “official duties” during the first-tier encounter.[5] The Supreme Court of the United States has construed the Fourth Amendment to the United States Constitution[6] as setting forth three tiers of policecitizen encounters: “(1) communication between police and citizens involving no coercion or detention, (2) brief seizures that must be supported by reasonable suspicion, and (3) fullscale arrests that must be supported by probable cause.”[7] During a first-tier encounter, an officer “may approach citizens, ask for identification, ask for consent to search, and otherwise freely question the citizen without any basis or belief of criminal activity so long as the police do not detain the citizen or convey the message that the citizen may not leave.”[8] And it is well settled that a citizen’s ability to “walk away from or otherwise avoid a police officer is the touchstone of a firsttier encounter.”[9] During a second-tier encounter, an officer 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,”[10] which means “more than a subjective, unparticularized suspicion or hunch.”[11] The officer’s actions during a second-tier encounter must be “justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion,”[12] and there must be “some basis from which the court can determine that the detention was neither arbitrary nor harassing.”[13] And relevant here, under OCGA § 16-10-25, “[a] person who gives a false name, address, or date of birth to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity or birthdate is guilty of a misdemeanor.”[14] This case, then, involves the analytical interplay between this statute and the applicable type of Fourth Amendment encounter. So, whether an officer is “acting in the lawful discharge of his official duties often turns on the type of encounter between the officer and a citizen.”[15] And importantly, during a second-tier encounter, “an officer is not within the lawful discharge of his official duties within the meaning of [the statute] when he approaches and questions an individual without specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.”[16] But here, Shumate incorrectly interprets our prior cases as suggesting a first-tier encounter never falls within an officer’s official duties. And in doing so, Shumate heavily relies on Holt v. State,[17] which involved a second-tier, investigatory detention of a vehicle’s passenger unsupported by reasonable, articulable facts giving rise to reasonable suspicion of criminal conduct, and thus was not a lawful discharge of official duties.[18] Even so, Shumate fixates on a single sentence in Holt, in which we noted that when “circumstances do not provide an officer with articulable suspicion (less than probable cause, but greater than mere caprice) that the law has been or is about to be violated, the officer’s act of detaining and questioning an individual is nothing more than a policecitizen encounter outside the scope [of] the officer’s ‘official’ police duties.”[19] But this sentence must be read and construed in the context of the entire opinion, which unquestionably holds that the relevant officer was engaged in an investigatory detention—i.e., a second-tier encounter—without reasonable, articulable suspicion of criminal activity.[20] Indeed, the sentence in question even uses the word “detaining,” indicating that the Holt Court was still referring to the unlawful execution of such an encounter. So, to the extent this isolated sentence in Holt—or any cases relying upon Holt—could possibly be read as suggesting that first-tier encounters never involve the discharge of official duties, such an interpretation is entirely unfounded, and we flatly reject it.[21] Our reading of Holt is also consistent with our subsequent decision in Galindo-Eriza v. State[22] (which Shumate also heavily relies on in his brief), in which we concluded that, although officers were engaged in official duties in effectuating a first-tier knock-and-talk encounter, the defendant’s permissible act of fleeing from the house during a first-tier encounter did not obstruct or hinder those duties.[23] Accordingly, the officers in Galindo-Eriza did not have probable cause to arrest the defendant for obstruction.[24] A correct reading and understanding of the foregoing caselaw, then, shows that an officer’s lawful official duties during a voluntary first-tier encounter include asking a person for identification.[25] But because a first-tier encounter is entirely voluntary, a person who is asked for identification is always free to ignore the officer’s request,[26] refuse the request,[27] or even run away from the officer.[28] That person may not, however, choose to respond to such a request by providing false information with the intent to deceive the officer.[29] Here, the officers who approached Shumate’s car testified that during their initial approach, and up until Mitchell spotted the screwdriver, Shumate and Washington were free to leave. In other words, it was a voluntary, first-tier encounter, and Shumate could have declined or even completely ignored Smith’s request to see his driver’s license.[30] But again, it is not permissible to respond to such an encounter by providing a false name, address, or date of birth with the intent of misleading an officer who is lawfully engaged in the discharge of his official duties—e.g., asking for identification during a voluntary, first-tier encounter.[31] So, when Smith recognized the person in the driver’s license photograph was not Shumate, Smith then had an objective, particularized basis for further investigating why Shumate handed him what appeared to be another person’s driver’s license.[32] Accordingly, Shumate’s assertion that the trial court erred in finding that the officers were engaged in “official duties” during the first-tier encounter lacks merit. 2. Next, Shumate argues the officers unlawfully detained him to conduct a drug investigation, asserting that they lacked reasonable, articulable suspicion to warrant such a detention. In the alternative, he argues the officers unlawfully prolonged the detention. We agree with Shumate that the officers unlawfully prolonged his detention without reasonable, articulable suspicion of criminal activity when they immediately abandoned the investigation into the driver’s license issue. As detailed supra, there are three tiers of police-citizen encounters, and Shumate maintains the officers unlawfully engaged in a second-tier encounter by removing him from his vehicle, handcuffing him, detaining him, and using a K-9 to conduct a free-air search of his vehicle. There are, of course, several factors to consider in determining whether (and when) an officer’s words or conduct amount to a second-tier seizure, including the following: “(1) whether there were several officers present, creating a threatening atmosphere; (2) whether any weapon was displayed; (3) whether any physical touching occurred; or (4) whether any language or tone of voice indicated that the defendant was compelled to comply with the officer’s request.”[33] In this case, Smith ordered Shumate to exit the vehicle after Mitchell saw a screwdriver in his hand and told Shumate to put it down—which he immediately did. As a result, Shumate was subjected to a second-tier encounter at that point, after which he was handcuffed and moved to the side of the building.[34] The question, then, is whether the officers had reasonable, articulable suspicion of criminal activity so as to warrant the detention. The trial court concluded they did based on (1) the vehicle occupants’ conflicting statements, (2) the time of night, (3) concern for officer safety, and (4) the production of a driver’s license that did not belong to Shumate. And based on our holding in Division 1, supra, we agree the officers had reasonable, articulable suspicion to detain Shumate for further investigation into his act of handing Smith a driver’s license that appeared to belong to someone else;[35] but that is not what the officers proceeded to investigate after removing Shumate from the car. According to Smith, at the time Shumate and Washington were detained, he and Mitchell were “investigating [Shumate] for false name and date of birth” but also believed there was “more going on” aside from the provision of a different person’s identification. Smith testified that he believed Shumate and Washington were trafficking narcotics based on his “knowledge, training and experience” in light of the following: providing a false identification; traveling in a vehicle from another county at 2:30 a.m.; Shumate and Washington’s conflicting stories; and some of Washington’s body language. But it is undisputed that Smith never investigated the false-name incident until after the K-9 drug sniff. The record shows Smith never asked Shumate for his name, date of birth, or social-security number prior to asking for consent to search the vehicle during the detention. He also did not ask Washington to identify Shumate or inquire as to why Shumate provided the wrong identification. Instead, at the point Washington was removed from the vehicle and handcuffed, the investigation had already turned into a drug investigation. Indeed, Smith testified that, contrary to his earlier statement, he was no longer investigating the false-identification issue at the time Shumate was removed from the vehicle, because he grabbed the screwdriver and “no reasonable person is going to try to harm a police officer over a fake ID or giving . . . the wrong ID.” So, the question is whether there was reasonable, articulable suspicion to detain and question Shumate for a reason other than the provision of another person’s license. Smith testified as follows about Shumate’s removal from the vehicle: Smith: . . . I’m more concerned at that point about what else is going on besides him handing me an ID that’s not his. Is the female [(Washington)] in the front seat, is she potentially kidnapped? Is she being trafficked? We don’t know. Counsel: Well, she was speaking to Officer Mitchell, wasn’t she? Smith: Yeah. But there are numerous cases throughout America of people who have been trafficked and they cooperate with law enforcement, and don’t say nothing [sic] about somebody taking them. Counsel: Yes, that’s true. And did Officer Mitchell convey to you any concern that Ms. Washington was being trafficked? Smith: I didn’t speak to Officer Mitchell until your client was already detained. Counsel: There you go. So is there any indication that you had that Ms. Washington was being trafficked? Smith: No, but there was also no — I have no indication that there was drugs in the car either. I said there were indicators to me that there was something more serious going on than just a fake ID.[36] Counsel: Something else is going on and you’re not really sure what? Smith: Correct. As for Mitchell, he testified that he believed something “suspicious” was going on with Shumate and Washington based on “where they were located, the time of night they were there, conflicting statements, [and] the screwdriver incident.” And similar to Smith, regarding the point at which Shumate was detained, Mitchell testified as follows regarding the purpose of the detention: Mitchell: For reasonable articulable suspicion. Counsel: Okay. And what did you suspect they had done? Mitchell: Criminal activity. Counsel: Any criminal activity? Mitchell: Any possible criminal activity. Counsel: So in your mind, you were there to see if they had committed any crime that’s in the books? Mitchell: No ma’am. So the time of night that it was. Two people sitting in a high crime area, and there is a screwdriver that he begins to tuck underneath his leg while the other officer is there gives us obviously some concern for criminal activity. That’s not normal behavior for someone to go get a drink at SmartMart. Turning now to the remaining factors the trial court found as the officers’ bases for reasonable, articulable suspicion of criminal activity, the conflicting statements that were given by Shumate and Washington do not support the detention that began when Shumate was removed from the vehicle because Smith did not learn about the conflicting statements until after Shumate was detained. Indeed, Shumate was removed from the car, handcuffed, and then taken to the side of the convenience store, after which Smith assisted Mitchell in getting Washington out of the vehicle and detained. It was only then that Smith learned about the conflicting stories. As a result, the trial court’s finding that Shumate was detained because of the conflicting statements is not supported by the record because his detention began before those statements were compared.[37] Next, in terms of concern for officer safety, the record shows that Smith could not see the screwdriver at any point in which Shumate had it in his hand because it is undisputed that Shumate did not raise the screwdriver in a threatening manner. Mitchell testified that nothing unusual drew his attention to the screwdriver, just that he noticed that it was “tucked beside [Shumate's] right leg, with the handle in his hand, and the tip pointed down like it would be in an icepick-stabbing-type motion, but he had it at his right leg.”[38] At the time he saw the screwdriver, Mitchell was not aware that Shumate had told Smith he was parked at the convenience store to work on the broken driver’s side door handle, but he believed Shumate was trying to tuck the screwdriver under his leg to hide it from Smith. Mitchell only told Smith about its positioning after the fact, when Shumate was already out of the car and detained. So, the trial court’s finding that Shumate was detained for officer safety is supported by facts, however slight they may be. The only other factor the trial court found to support the detention was the time of night that Shumate and Washington were in the parking lot—2:30 a.m.[39] Thus, while the officers were warranted in removing Shumate from the car out of concerns for officer safety (despite that he was holding a screwdriver after telling Smith he was stopped to fix his broken door handle), they were not justified in detaining him to investigate anything other than the provision of another person’s identification. There were no reasonable, articulable facts, as found by the trial court, to support an expansion of the investigation beyond the driver’s license—which was abandoned before it ever began.[40] Although the dissent suggests we should apply the “right for any reason” doctrine to affirm the trial court’s denial of the motion to suppress on the basis that the officers had probable cause to arrest Shumate after he gave Smith another person’s driver’s license, this ground was not argued below—as the dissent acknowledges. The State, of course, has “the burden of proving that the search and seizure were lawful.”[41] But because it was not raised by the State below, Shumate had no opportunity to respond to this argument, the argument was not placed before the trial court, and it was not briefed on appeal. It is well established that we cannot affirm as “right for any reason” on the basis of a reason that was not raised below.[42] Suffice it to say, it is not our responsibility as an appellate court to make arguments for the State that the State never asserted in the trial court.[43] Accordingly, because the officers lacked reasonable, articulable suspicion of a crime other than the provision of a false identification (which they did not investigate), the trial court abused its discretion by denying Shumate’s motion to suppress the evidence collected as a result of his detention. For all these reasons, we reverse. Judgment reversed. Brown, J., concurs. Padgett, J., dissents. A24A0862. Shumate v. The State.
