Brooks v. State

• Decision Date: 20 June 1973
• Docket Number: Nos. 48196 and 48234,No. 3,s. 48196 and 48234,3
• Citation: 129 Ga.App. 393,199 S.E.2d 578
• Parties: R. S. BROOKS v. The STATE. W. L. WOLLARD v. The STATE
• Court: Georgia Court of Appeals

Page 578

199 S.E.2d 578

129 Ga.App. 393

R. S. BROOKS v. The STATE.

W. L. WOLLARD v. The STATE.

Nos. 48196 and 48234.

Court of Appeals of Georgia, Division No. 3.

June 20, 1973.

Rehearing Denied July 18, 1973.

Glenn Zell, Atlanta, for appellants.

Lewis R. Slaton, Dist. Atty., Dennis S. Mackin, Morris H. Rosenberg, James H. Mobley, Jr., Atlanta, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

These appeals from the judgment of conviction of burglary, raise the issue of whether the trial judge erred in refusing to suppress as evidence stolen items seized from the defendants' hotel room without a warrant. Held:

1. The evidence showed that the police officers were summoned to the hotel by its employees to investigate the defendants after the latter had been discovered using aliases in their registrations for two different rooms for their joint occupancy on succeeding nights; they had been observed going from and returning to their room very frequently and late at night; some pistols on top of the dresser in their room had been observed from the doorway by the hotel bellman; and the defendants had been seen throwing new, expensive women's garments from their room out into the hallway immediately after the bellman had observed the pistols. The above was sufficient to authorize an investigation by the police.

2. The evidence was conflicting as to whether the police officers used a key to gain entry to the room or whether defendant Brooks voluntarily opened the door in response to the officer's knock. The trial judge, as the finder of fact on the motion to suppress, was authorized to resolve the conflicts in the testimony and find that the door was voluntarily opened. Code Ann. § 27-313(b) (Ga.L.1966, pp. 567, 571); Williams v. State, 119 Ga.App. 557, 167 S.E.2d 756; Harris v. State, 120 Ga.App. 359(1), 170 S.E.2d 743. Whether or not the police officers identified themselves as such prior to the opening of the door (defendant Brooks testified that they did), is immaterial. 'The provisions of Code Ann. § 27-308 are not applicable, for the reason that the entry into the apartment in which the defendant was arrested was not in the execution of a search warrant, since none was obtained.' Bridges v. State, 227 Ga. 24(4), 178 S.E.2d 861. Furthermore, "(A)fter verdict, in passing upon the motion for a new trial, that view of the evidence which is most unfavorable to the . . . (movant) must be taken, for every presumption and every inference is in favor of the verdict. (Citations.)' Beecher v. Farley, 104 Ga.App. 785, 786, 123 S.E.2d 184, 186.' Stewart v. State, 128 Ga.App. 11, 13, 195 S.E.2d 251, 252.

3. "A police officer is free to use and seize what he sees in plain sight if he is at a place where he is entitled to be. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067.' Lewis v. State, 126 Ga.App. 123, 126, 190 S.E.2d 123, 126; Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782.' Green v. State, 127 Ga.App. 713, 715, 194 S.E.2d 678, 679.

The police officers, while rightfully standing before the open doorway of the hotel room for purposes of investigation, observed within the room in plain view a bag of suspected marijuana, whereupon they arrested defendant Brooks (the sole occupant of the room at that time) at the doorway for violation of the Georgia Drug Abuse Control Act. When they entered the room for the purpose of seizing the suspected marijuana, they observed and seized an open bag (also in plain sight) containing coins, which were later determined to have been stolen. Defendant Wollard was arrested on the same charge and for false registration in the hotel (Code Ann. § 52-308; Ga.L.1945, pp. 326, 328), when he returned to the room shortly thereafter.

Under Code § 27-207 an officer may arrest without a warrant where the offense is committed in his presence or where there is likely to be a failure of justice for want of an officer to issue a warrant. Possession of marijuana is such an offense. Code Ann. § 79A-903(b) 5 (Ga.L.1967, pp. 296, 344; 1970, pp. 470, 471); Code Ann. § 79A-907 (Ga.L.1967, pp. 296, 349). Hence, defendant Brooks was lawfully arrested under one or...