Butler v. State

• Decision Date: 27 November 1973
• Docket Number: No. 2,No. 48596,48596,2
• Citation: 203 S.E.2d 558,130 Ga.App. 469
• Parties: Sanford H. BUTLER v. The STATE
• Court: Georgia Court of Appeals

Page 558

203 S.E.2d 558

130 Ga.App. 469

Sanford H. BUTLER v. The STATE.

No. 48596.

Court of Appeals of Georgia, Division No. 2.

Nov. 27, 1973.

Rehearing Denied Dec. 18, 1973.

Rich, Bass, Kidd & Broome, Casper Rich, Bryan M. Cavan, Decatur, for appellant.

Nat Hancock, Dist. Atty., Jefferson, for appellee.

Syllabus Opinion by the Court

HALL, Presiding Judge.

Sanford Hoyt Butler appeals his conviction for possession of burglary tools.

Late in the night of October 7, 1972, at a shopping mall in Winder, Georgia, the Act Hardware Company was burglarized and a burglary attempt was made on The Boutique Shop. Officers investigating a citizen's report of suspicious activity at the mall discovered William Joseph Ritzheimer and Faye Allyson Adams near the scene. A third person, later identified as Clifford Wilson, was seen running from the area. During questioning at the scene Ritzheimer pulled a gun on the policemen. He was subsequently disarmed and searched, and found to be in possession of shaved-down locks similar to those tampered with at the mall, as well as other locks and keys and a pistol. He and Adams were arrested. The beige Chevrolet which Ritzheimer and Adams identified to the officers as their transportation, and in which Adams was seated at the time of the gunplay, was searched with a warrant revealing a sizeable collection of burglary tools. The auto was found to be registered in the name of Sanford Hoyt Butler, appellant here. In subsequent statements to the officers, Ritzheimer and Adams identified Wilson as their companion at the scene, and stated that they and Wilson were staying at 201 Copeland Road, Apartment E-2, Atlanta, Georgia. With an arrest warrant for Wilson the officers entered the apartment and discovered shaved-down tumbers (movable portions of lock mechanisms) in plain view. Obtaining a search warrant, officers searched the apartment and discovered additional burglary tools. The apartment was leased to Sanford Hoyt Butler.

Butler, Ritzheimer and Adams were jointly indicated and tried for possession of burglary tools, burglary of the hardware company, and attempted burglary of the clothing shop. Wilson had not been apprehended and was not tried. Butler was convicted of possessing burglary tools, but was acquitted of the other charges. The jury fixed his sentence at one year's imprisonment and recommended that the offense be treated as a misdemeanor. The judge imposed sentence but refused the recommendation. Our decision upon Adams' appeal of her conviction was previously reported at 129 Ga.App. 839, 201 S.E.2d 649. Ritzheimer's pro se appeal is reported in 130 Ga.App. 319, 203 S.E.2d 566.

On this appeal, Butler raises five enumerations of error of which the first is the denial of his motion to suppress the items seized in the auto search and the introduction of the same into evidence over his objection at trial. He argues that the warrant was issued without probable cause.

1. Code Ann. § 27-303 (Ga.L.1966, pp. 567, 568) allows a warrant to issue upon a showing of facts 'sufficient to show probable cause that a crime is being committed, or has been committed . . .' The test of probable cause is whether it would justify a man of reasonable caution in believing that an offense has been or is being committed, and this requires merely a probability-less than a certainty but more than a mere suspicion or possibility. 68 AmJur2d, 721, Searches and Seizures, § 68; see Strauss v. Stynchcombe, 224 Ga. 859, 865, 165 S.E.2d 302; McMahan v. State, 125 Ga.App. 491, 492, 188 S.E.2d 183. Not only what is stated in the affidavit for the warrant but also the totality of the sworn circumstances before the magistrate may be considered in establishing probable cause. Johnson v. State, 227 Ga. 387, 181 S.E.2d 42; Campbell v. State, 226 Ga. 883, 178 S.E.2d 257; Marshall v. State, 113 Ga.App. 143, 147 S.E.2d 666.

The affidavit stated that burglary tools and firearms were to be searched for as 'tangible evidence of the commission of the crime(s) of burglary that was committed on 10-7-72 at 11:55 p.m. at Act Hardware and Boutique Shop at Holly Hill Mall and that the facts to establish probable cause for the issuance of a search warrant are as follows: Policeman walked up to people and a pistol was pulled on officers and also had a call on vehicle with people checking stores and also three doors broke open in shopping center-one person run. The above automobile was identified as being their transportation.' The affiant, Gerald Thomas, Chief of Police of the City of Winder, additionally testified under oath to the magistrate that the officers had found lock cylinders and a pistol in Ritzheimer's pocket prior to seeking the warrant.

Contrary to appellant's contentions, there is no requirement that probable cause for the issuance of a warrant be set out only in that section of the printed affidavit form designated 'Probable Cause' (which followed the colon in the affidavit quoted above). The affidavit is to be read 'as a whole,' United States v. Ventresca, 380 U.S. 102, 111, 85 S.Ct. 741, 13 L.Ed.2d 684. A 'commonsense reading of the entire affidavit' is all that is required. Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637; Clyatt v. State, 126 Ga.App. 779, 782, 192 S.E.2d 417. When grounds for a search warrant appear on the face of the printed search warrant form, the fact that the grounds may be stated in the wrong place on the form is immaterial. United States v. Longfellow, 406 F.2d 415 (4th Cir.) cert. den. 394 U.S. 998, 89 S.Ct. 1594, 22 L.Ed.2d 776. Thus, the affidavit recited the suspicious activities of the two subjects and the actual occurrence of a burglary, and identified the auto to be searched as the subjects' transportation. Additionally, the sworn testimony given the magistrate concerning the contents of Ritzheimer's pockets clearly implicates him in any burglary then afoot. There was probable cause to believe that a crime had been committed and that instruments of that crime would be found in the auto; the magistrate did not abuse his discretion in issuing the warrant. Code Ann. § 27-303, cf. Campbell v. State, supra.

2. The second enumeration of error complains on two grounds of the introduction into evidence of items seized pursuant to the execution of a search warrant at 201 Copeland Road, Apt. E-2, Atlanta. The first asserted ground is that the search warrant was issued without probable cause; the second is that its description of the items to be seized was insufficiently particularized and authorized a general search.

The evidence showed that on the evening of the day following the burglary, two officers went to the apartment with an arrest warrant for Clifford Wilson, who was known to live there. Entering the apartment through an open rear door, the officers went through the rooms looking for Wilson. In the bathroom an officer noticed in plain view some ground-down tumblers similar to those found on Ritzheimer at his arrest, and then decided to procure a search warrant to search the premises.

The affidavit stated the supporting facts as follows: 'On 10-7-72 subject William J. Ritzheimer and Faye Adams were arrested at a scene of a burglary in Winder, Ga.Sub. Ritzheimer pulled a gun on officer Clifford Sikes. Sub was then disarmed and searched. Found on his person was lock cylinders as the same that had been tampered at burglary scene. Statements were taken from Subs and they gave the above address as where they were staying. Sub. Clifford Wilson was with subjects at scene of crime and an arrest warrant is now out for this subject. Wilson also lives at above address.' The items to be searched for were stated as 'Locks and keys, files and other burglary tools. Any hardware or clothes from thefts.'

At the time of seeking the warrant from the magistrate, Agent Stone, one of the 2 officers, supplemented the facts in the affidavit by his sworn testimony that in the bathroom he had seen the tumblers similar to those found on Ritzheimer.

Answering appellant's first contention, we find the warrant issued with probable cause. No contention is made that the officers improperly entered the apartment, and no contention is made that their passing through the apartment in search of Wilson exceeded a permissible search for a person. This latter contention, had it been made, would have been insupportable. See Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385. The tumblers were burglary tools, the possession of which is a crime under Code Ann. § 26-1602, and the plain view of these tools clearly gave probable cause to believe that a crime was then being committed. With reference to so much of the warrant as authorize a search for burglary tools, our holding that probable cause appeared is squarely supported on parallel facts by United States v. Combs, 468 F.2d 1390, 1392 (6th Cir.) cert. den. 411 U.S. 948, 93 S.Ct. 1924, 36 L.Ed.2d 409; United States v. Johnson, U.S.App.D.C., 452 F.2d 1363, 1372; and DePalma v. State, 228 Ga. 272, 275, 185 S.E.2d 53, in all of which cases officers rightfully on premises found there in plain view instrumentalities or evidence of crime for which they subsequently sought warrants; the warrants were held to have been issued with probable cause. This holding is supported moreover by Wood v. State, 126 Ga.App. 423, 190 S.E.2d 828 in which this court found that the discovery in such circumstances of a gun did not provide probable cause because possession of a gun in a residence was not a per se legal violation: 'Had the firearms been contraband this would have been sufficient . . .' Id. p. 424, 190 S.E.2d at p. 829. The burglary tools viewed here were contraband, and probable cause for the warrant appeared.

With respect to the search for burglary tools, we find no merit in the second of appellant's contentions, which is that the description of the items to be searched for was too broad. Though specificity is to be...