Traylor v. The State., 127 Ga. App. 409, 193 S.E.2d 876 (1972)
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Judgment reversed. Bell, C. J., Deen, Quillian and Clark, JJ., concur. Hall, P. J., Eberhardt, P. J., Pannell and Stolz, JJ., dissent.
Summary
Judgment reversed. Bell, C. J., Deen, Quillian and Clark, JJ., concur. Hall, P. J., Eberhardt, P. J., Pannell and Stolz, JJ., dissent.
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Lewis R. Slaton, District Attorney, Joel M. Feldman, Carter Goode, for appellee.Glenn Zell, for appellant.
The defendant was indicted, tried and convicted of the possession of heroin. Motion for new trial was duly filed and amended and thereafter overruled. The appeal is from this final judgment. Held:
1. The main contention of the defendant involves the denial of his motion to suppress the evidence because it was an illegal search and seizure, there being no probable cause therefor, and the same was in violation of the 4th and 14th Amendments of the United States Constitution. An Atlanta police officer testified that he and two other police officers were aware that there had been burglaries of a small grocery store in a small shopping center; that it had been reported to him by informants that narcotics and drugs were being used in the parking lot of the shopping center and that crap games go on there quite frequently; that he and the two other police officers drove up to this parking lot at 2:15 a.m. on August 11, 1971, "to try to break up the crap game." There were approximately 15 males in the area. One of the officers announced over a public address system that they were all under arrest. A crap game was going on in one corner, and the occupants began to run in all directions. This defendant, who had been leaning against an automobile, got into a Cadillac automobile and fled the scene. The officer stopped him on the street, again advised him he was under arrest for "prowling," and ordered him out of the automobile, at which time they noticed him taking white paper like "plastic" out of his pockets and placing it under the arm rest of the car. Later, packages of heroin were found under the arm rest.
Whether or not there was sufficient evidence to convict the accused of prowling or gambling (Code Ann. 27-313; Ga. L. 1966, pp. 567, 571) requires that in any hearing of a motion to suppress the evidence of an illegal search and seizure, the burden of proving that the same was lawful shall be on the State. On three separate occasions the officer advised defendant he was under arrest for "prowling," and defendant chose to ignore or defy the arrest, and left the parking area. He was forcibly stopped on the street, and taken into custody for "prowling." The defendant had the right to leave, and to ignore or defy the arrest, if said arrest was illegal. Griffin v. State,
But none of these conflict with the proposition here laid down, and as held in the Federal authorities previously cited, that once an illegal arrest is made, all evidence resulting from searches and seizures during or following the illegal arrest must be repelled and not allowed in evidence.
2. All other enumerations of error are based on the general grounds of the motion for new trial and are not argued here; hence they are deemed abandoned.
STOLZ, Judge, dissenting.
The majority opinion is predicated on the theory that the search of the defendant's car was based solely on his arrest for "prowling." As pointed out in the majority opinion, the defendant's arrest took place at approximately 2:15 a.m. at a small shopping center in which a burglary had recently been attempted, where illegal gambling was in progress when the officers arrived and where narcotics were suspected of being used. The record shows that all stores in the shopping center were closed and that some 10 to 15 persons were there when the officers arrived and announced over their public address system that everyone was under arrest. The defendant attempted to leave the area and, in so doing, almost ran over an officer with his (defendant's) automobile. The majority contends that the defendant had the right to leave and to ignore and defy the arrest, that it was incumbent upon the State to show that the defendant was legally arrested for violating the Atlanta City Ordinance prohibiting "prowling." I disagree. The issue before the court is whether the officer had probable cause for his search of the defendant's automobile and the seizure of the heroin therein. I believe that he did for several reasons.
(1) The officer made no attempt to use force in attempting to arrest the defendant. Yet, the defendant almost ran over the officer in his automobile attempting to escape and thus committed an assault on the officer. Code Ann. 26-1301 (b).
"Where an arrest is not lawful, the person sought to be so arrested . . . has the right to resist, and in doing so 'has a right to resist force with force proportionate to that being used in unlawfully detaining him.' But, even here, the mere fact of unlawful arrest, in the absence of unlawful force amounting to or reasonably appearing to amount to a felony, will not authorize the killing of the officer." Mullis v. State,
Flight of the accused, in connection with other circumstances, has likewise been held sufficient to constitute probable cause for an arrest without a warrant and search. Richardson v. State,
(2) The officers also had probable cause to arrest the defendant for gambling or as a material witness to its commission. For an excellent discussion of a history of the law on this latter point, see the opinion by Judge Powell in Crosby v. Potts,
The officers observed the suspected heroin in plain view as the defendant was attempting to conceal it. What they observed served as a basis for probable cause for the subsequent search and seizure of the heroin.
(4) The majority contends that the defendant can not be convicted of possession of narcotics since the municipal ordinance on "prowling" was not introduced into evidence. Again, I must disagree. In Klingler v. United States, 409 F2d 299, cert. den. 396 U. S. 859 (90 SC 127, 24 LE2d 110), the defendant was convicted of violating the section of the Federal Firearms Act which prohibits a former convict, as was defendant, of transporting a firearm in interstate commerce. The facts revealed that at approximately 4:00 a.m., on May 17, 1967, an officer of the Sioux Falls, South Dakota police department was advised by radio that a bandit, wearing sunglasses and a green jacket, and needing a shave, had robbed a Sioux Falls service station earlier that morning and was in a brown and white 1955 or 1956 Pontiac automobile with Minnesota license plates. Two metal construction helmets were said to be visible through the rear window. At about 5:00 a.m., the officer, while driving a patrol car on routine duty, observed two men in an automobile parked in a private parking lot. As the patrol car passed, the other automobile began to move. The officer turned the patrol car around and stopped the suspects. Their car, a 1957 white and salmon/coral Pontiac with South Dakota license plates, had two metal construction helmets visible through the rear window. The officer had the two men get out of the car and produce identification. Their drivers' licenses indicated they were from Huron, South Dakota. They said they were in Sioux Falls looking for work. Their clothes were in disarray. The defendant was wearing an olive colored waistcoat and had about two days' growth of beard. There were sunglasses on the dashboard.
The officer called for assistance. Upon the arrival of other officers, the two suspects were arrested for vagrancy pursuant to a Sioux Falls city ordinance. No attempt was made by the officers to determine whether either suspect had money, although suitcases, personal belongings, and a box of food were in the car. One of the officers commenced to search the car and discovered a .22 calibre pistol under a ventilated cushion on the front seat, which formed the basis for the charge and conviction. The defendant was not prosecuted for vagrancy or for the aforesaid robbery. In upholding the defendant's conviction, the court stated (p. 304): "We agree that vagrancy was an unsuitable ground for the arrest. We note, however, that the record in this case fails to show bad faith on the part of the officers in making the arrest for vagrancy. The testimony suggests that [an officer] made what appears to be an honest mistake in specifying the reason for arrest . . . Objectively, the facts known to [the officer] prior to the arrest and search met the standard of probable cause. Notwithstanding the officer's mistaken statement of grounds, the existence of probable cause for a robbery arrest prevents the vagrancy arrest from being considered pretextual." (Emphasis supplied.) Later in its opinion (p. 305), the court dealt specifically with the question, Does an officer's statement of an unsuitable ground for arrest void the arrest and search incident thereto, and answered the same in the negative. In so doing, the court noted: "The validity of the arrest hinges on yet another question: Was the arrest invalid because the arresting officer notified Klingler that he was under arrest for vagrancy rather than for armed robbery? . . .
"Cases in this court . . . on corresponding factual circumstances have held that an officer's statement of an unsuitable ground for arrest neither voids the arrest nor a search incidental thereto. For example, in McNeely v. United States, 353 F2d 913 (8th Cir. 1965), the driver of an automobile was arrested for 'littering' by an officer, who had not, in fact, seen the suspect throw anything from the vehicle. Judge Gibson, speaking for this court, upheld the validity of the arrest. He observed: 'The law cannot expect a patrolman, unschooled in the technicalities of criminal and constitutional law, following the heat of a chase, to always be able to immediately state with particularity the exact grounds on which he is exercising his authority. We believe that if the officer had probable cause to arrest and otherwise validly performed the arrest, he is not under the circumstances of this case required to immediately recognize and accurately broadcast the exact grounds for this action or suffer the arrest to come under constitutional criticism. Therefore, since [the officer] had probable cause to believe the occupants of the car were engaged in felonious activity, the arrest of McNeely was valid regardless of the initially stated grounds for arrest.' "
For the foregoing reasons, I would affirm the conviction and must respectfully dissent.
1972
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