Brisbane v. State

• Decision Date: 03 December 1974
• Docket Number: No. 29313,29313
• Parties: Larry BRISBANE et al. v. The STATE.
• Court: Georgia Supreme Court

Page 294

211 S.E.2d 294

233 Ga. 339

Larry BRISBANE et al. v. The STATE.

No. 29313.

Supreme Court of Georgia.

Dec. 3, 1974.

Friedman, Haslam & Weiner, Ronald E. Ginsberg, Savannah, for appellants.

Andrew J. Ryan, Jr., Dist. Atty., Michael K. Gardner, Andrew J. Ryan, III, Asst. Dist. Attys., Savannah, Arthur K. Bolton, Atty. Gen., John W. Dunsmore J., Deputy Asst. Atty. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

INGRAM, Justice.

Appellants, Larry Brisbane and Marvin Jackson, were convicted after a jury trial in the Superior Court of Chatham County on two counts of armed robbery for which each of them received a sentence of 20 years imprisonment. This appeal, from the overruling by the trial court of their amended motion for new trial, presents only two questions for decision by this court. The initial question is whether appellants were subjected to an illegal arrest when a police officer stopped the automobile in which appellants were riding and then detained them. The other question, corollary to the first, is whether the subsequent search of the vehicle was permissible under the Constitutions of the United States (Code § 1-804, U.S.Const. Amend. 4) and the State of Georgia (Code Ann. § 2-116, Const. art. 1, § 1, par. 16).

The pertinent facts of the case bearing upon the issues involved in this appeal are as follows: In the early morning hours of September 11, 1972, Logan's Gulf Station in Savannah was robbed at gunpoint by three men. Later that morning, at approximately 3:45 a.m., Officer G. T. Hill, of the Chatham County Police Department, was on routine patrol on U.S. Highway 17 south, parked in his patrol car near a Thorni's service station which was known to him to have been the scene of numerous armed robberies. Officer Hill testified that while parked in his patrol car he noticed an automobile twice drive by the Thorni's service station. When the automobile drove by the second time and again slowed down in front of the service station, Officer Hill decided to stop the vehicle. After stopping the automobile, Officer Hill requested the driver to produce his driver's license and car registration. The driver, however, was unable to produce either a driver's license or a vehicle registration but did produce a Navy I.D. card. At that point, Officer Hill escorted the driver, James Brewton, to the patrol car and made a radio report to the police station seeking information concerning the ownership of the car based upon its tag number. In a few minutes, Officer Hill was notified by the police station that the car had been reported as stolen. At this time, Officer Hill placed all the occupants of the car, including appellants, under arrest for suspicion of auto theft.

A personal pat-down search was conducted of each person in the automobile and twelve one-dollar bills and four silver certificates were found on the person of Larry Brisbane. These items were later identified as having been stolen in the armed robbery. Officer Hill and another police officer then began a search of the car. Officer Hill testified that lying on the front seat of the car in plain view was a plastic container containing several pictures which were later discovered to be from the wallet of the station attendant at Logan's Gulf Station. Officer Hill also testified that lying on the back floor, in plain view, were several shotgun shells. Finally, Officer Hill, by using a screwdriver, gained entrance to the trunk of the car (the lock had previously been removed) and therein discovered two sawed-off shotguns. The shotguns were subsequently identified at the trial of appellants as the weapons used in the armed robbery.

Appellants urge that when Officer Hill stopped the automobile in which they were riding, 'to see what they were up to' that he effectively seized them in violation of their right of privacy and security. Appellants argue there were no exigent circumstances or articulable suspicious to be inferred from either their conduct or the conduct of any other person in the automobile, and therefore no probable cause existed for Officer Hill to stop the vehicle and detain them. Appellants reason that the initial stopping of the automobile by Officer Hill violated their Fourth Amendment rights in that they were 'seized' illegally.

The Supreme Court of the United States has held that when a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person within the meaning of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1938). To justify a warrantless intrusion of this nature, the state must be able to point to specific and articulable facts, which, together with rational inferences drawn therefrom, reasonably warrant the intrusion. Terry v. Ohio, supra; Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972); United States v. Zubia-Sanchez, 448 F.2d 1232, 1233 (9th Cir. 1971); Tanner v. State, 114 Ga.App. 35, 150 S.E.2d 189 (1966). See also, Note, Nonarrest Automobile Stops: Unconstitutional Seizures of the Person, 25 Stanford L.Rev. 865, 870 (and cases cited therein at n. 31) (1973).

What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing. Wilson v. Porter, 361 F.2d 412, 415 (9th Cir. 1966). 'Where no circumstances at all appear which might give rise to an articulable suspicion (less than probable cause, but greater than mere caprice) that the law has been violated, the act of following and detaining a vehicle and its occupants must be judged as an impermissible intrusion on the rights of the citizen.' Brooks v. State, 129 Ga.App. 109, 111, 198 S.E.2d 892, 894 (1973).

What is implicit in the above is that each case must turn on its own independent circumstances bearing on the issue of reasonableness of the seizure. Appellants argue that no exigent circumstances or articulable suspicions could be inferred from the conduct of appellants or other persons in the automobile. They rely on Brooks, supra, as supportive of this suppression argument. In Brooks, a seizure and subsequent search were held illegal because they were premised upon a mere hunch, or inclination. In that case, police officers observed Brooks and a female companion traveling along a highway. When the vehicle turned off the highway onto a side road leading into the woods, the officers followed a short distance and then signaled them to pull over. The court, in suppressing contraband found in plain view as a result of the illegal seizure, stated that the officers were not dealing with any real or supposed authority to check for traffic violations, or with even the slightest articulable suspicions arising from inferences from conduct, or from knowledge arising out of the totality of the circumstances. The court cited an article by Professor Charles A. Reich, Police Questioning of Law Abiding Citizens, 75 Yale L.J. 1161 (1966), which stated that one may legitimately be in a particular place on no business whatsoever, perhaps merely to be alone or to watch the moon, and he has the right to do so without harassment.

Analyzing the facts of the present case in the light of these authorities, we find no evidence of arbitrary harassment or absence of the kind of suspicious conduct that justifies an investigative inquiry. The officer observed the vehicle in which appellants were riding drive slowly by an allnight service station which had been the scene of several recent armed robberies. After passing the service station once, the vehicle was observed a second time driving by the station, and slowing down in front of the station as it had done previously. The time was approximately 3:45 a.m. We are of the opinion that Officer Hill acted reasonably under the totality of the circumstances confronting him and that the activity of the automobile in which appellants were riding created a justifiable suspicion of their conduct...