Anderson v. State, 45778

• Decision Date: 02 December 1970
• Docket Number: No. 3,No. 45778,45778,3
• Parties: Lucious L. ANDERSON v. The STATE
• Court: Georgia Court of Appeals

Page 286

179 S.E.2d 286

123 Ga.App. 57

Lucious L. ANDERSON v. The STATE.

No. 45778.

Court of Appeals of Georgia, Division No. 3.

Dec. 2, 1970.

Syllabus by the Court

1. Where in connection with other suspicious circumstances a police officer looking into an automobile saw in plain view a large quantity of loose money and other paraphernalia which might reasonably have been used as burglary tools, he was justified in arresting the operator and searching the vehicle without a warrant, the totality of circumstances constituting probable cause for the belief that what the officer saw was in fact stolen property.

2. In connection with the police power of the State there is a limited right to speak to and even momentarily detain a citizen for a routine check of driver's lecense or identification which does not amount to an arrest or search and seizure. Such an act is in itself an invasion of the citizen's right of privacy and is permissible only to the extent that it is necessary to the proper safeguard of the public welfare.

The motion to suppress, the denial of which is enumerated as error, is based on an arrest and search without a warrant under the following circumstances: A police officer on patrol at approximately 2 a.m. noticed an automobile emerging from a mall known as Atlanta Trade Center adjacent to Fulton Industrial Boulevard, an area which it was his duty to patrol. He knew that nothing was open in the mall at that hour of the morning, and testified that he knew 90% of the people up there, knew when they were there and when they were not, that he had checked the area on a previous round and found all the businesses closed up. The mall itself is a horseshoe-shaped complex occupied only by wholesale business establishments and Horne's Restaurant which closes prior to 10:30 p.m. He followed the car until it prepared to turn into a freeway entrance, at which time he signaled it to pull over and stop. This the driver did. The officer asked to see the operator's identification and driver's license, and, noticing that the suspect was moving one foot in an apparent attempt to conceal something, looked into the car and saw on the back floorboard a quantity of money, screwdriver, flashlight and gloves. He then placed the driver under arrest, searched the car, and found a money bag, change wrappers, vouchers and personal checks some of which bore identification showing them to be the property of Horne's Restaurant.

The witness thereupon put in a call to have Horne's Restaurant checked, and it was found to have been broken into and the safe refled. A screwdriver tip wedged in the safe matched the screwdriver found in the defendant's car, the tip of which had been broken off. The checks, vouchers and money were identified as coming from the safe, and a Polaroid camera in defendant's possession was identified by the manager of Horne's as his personal property. The defendant was convicted on indictments for burglary and possession of burglary tools.

Neil L. Heimanson, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Stephen A. Land, Tony H. Hight, Atlanta, for appellee.

DEEN, Judge.

1. A police officer has a right to arrest without a warrant when he has probable cause to believe a crime is being committed in his presence. Code § 27-207. And while a warrantless search of a vehicle may result in the suppression of the evidence of the fruits of the illegal search where it is based upon an arrest not reasonable as without probable cause (Collins v. United States, 5 Cir., 289 F.2d 129), it is also true under some circumstances that the 'right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.' Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.ed. 543. Therefore, if probable cause exists, a search of an automobile will be upheld under circumstances which would not justify a warrantless search of a home or office; the same probable cause which justifies the arrest may justify the search, and, given probable cause, no Fourth Amendment distinction exists between making an immediate search without a warrant or impounding the vehicle until a warrant may be obtained. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. This is always dependent on the exigencies of the immediate situation. The officer here testified that he looked into the automobile and saw burglary tools, but whether a screwdriver, gloves, chisel and so forth are buglary tools, or a legitimate part of an automobile repair kit, or household tools being transported for the convenience of the owner is itself a thing impossible to decide without other circumstances. The officer's conclusion that he was looking at burglary tools was obviously colored by his suspicions aroused when the vehicle was seen...