Chaney v. State, 50073

• Decision Date: 07 February 1975
• Docket Number: No. 50073,No. 1,50073,1
• Citation: 133 Ga.App. 913,213 S.E.2d 68
• Parties: Joe A. CHANEY v. The STATE
• Court: Georgia Court of Appeals

Page 68

213 S.E.2d 68

133 Ga.App. 913

Joe A. CHANEY v. The STATE.

No. 50073.

Court of Appeals of Georgia, Division No. 1.

Feb. 7, 1975.

P. Russell Tarver, Covington, for appellant.

John T. Strauss, Dist. Atty., Covington, for appellee.

Syllabus Opinion by the Court

WEBB, Judge.

Joe Allen Chaney appeals from his conviction in the Superior Court of Newton County of the offense of theft by receiving stolen property, one offense of forgery in the first degree, and seven offenses of forgery in the second degree.

Chaney and Ison, in a car registered in the name of Ison's father, were stopped by two Covington police officers on the night of February 28, 1974 to investigate the passing of a suspicious check. Chaney and Ison earlier had entered a retail store, selected several small items to purchase, and presented a payroll check payable to 'George T. Leach' purportedly drawn by Georgia Power Company. Mr. Parnell, operator of the store, considered the two to be suspicious, and declined to cash the check, but referred them to a package store further east on the highway. Mr. Parnell then telephoned the police to report his suspicions. The police went to the package store and learned that the two males had just left, and had in fact cashed a Georgia Power Company check payable to Leach. Officer Locklear examined the check, and in his judgment determined that the check was probably a forgery, that it appeared to have been written 'on a standard, personalized checkwriter,' that usually 'they have the name of the company where they stamp it, as far as who it is paid to,' and 'usually the perforation on the payroll checks that I see are more in line with the dollars and cents amount. Then, this part, the perforations, and from the way it is located on the check, it appeared suspicious to me at the time.'

On the basis of that determination, 'and ont he basis of the description of the automobile and the subjects,' the two officers put them under visual surveillance. As the subjects started to leave the city, the officers stopped them and asked for identification. Chaney produced several credit cards, three of which were in the name of George Leach, and one in the name of Brown. Ison said they had just been to the package store on Highway 278, and that the merchandise was in the car trunk. 'I asked him at that time would he allow me to look in the trunk of the car. He said he would. He got the keys out of the ignition. He opened the trunk. At that time I observed in the right hand corner of the trunk what appeared to be a checkwriter.' (The 'checkwriter' turned out to be a stolen Pitney-Bowes postage meter). The merchandise purchased was also in the trunk. The subjects were then taken into custody. Subsequently a search warrant was obtained, whereupon additional credit cards and checks were found in the automobile. Chaney was indicted on eleven counts arising from the arrest and search.

Officer Locklear further testified that at the time they stopped the car, Ison and Chaney were on northbound Highway 81, approaching the Oxford city limit sign, and had they not stopped the subjects at that time, they would not have been able to investigate and follow up on the incident, and would not have been able to recover the items they did recover.

The sole enumeration of error was the overruling of Chaney's motion to suppress evidence and testimony resulting from the search of the automobile occupied by Chaney and James Ison, Jr. at the time of their arrest without a warrant.

1. The initial search of the car, that is, the opening of the trunk, was with consent of the driver, Ison, according to uncontradicted testimony. The automobile was registered in the name of Ison's father. Ison having freely and voluntarily opened the trunk of the car for inspection, Chaney cannot complain. Ferguson v. State, 218 Ga. 173(8), 126 S.E.2d 798; Tolbert v. State, 224 Ga. 291, 294, 161 S.E.2d 279; Trull v. Smith, 226 Ga. 665(5), 177 S.E.2d 73; Hightower v. State, 228 Ga. 301(1), 185 S.E.2d 82; Guest v. State, 230 Ga. 569(1a), 198 S.E.2d 158; Young v. State, 113 Ga.App. 497, 498, 148 S.E.2d 461. Subsequently a search warrant was obtained, and a search of the entire car was made. No attack is made on the search warrant.

2. But was there probable cause for the arrest? The chain of events that led to the arrest of Chaney began with the call to the police from the retail store operator that two suspicious looking males wished to purchase some small items and cash a large payroll check, and that he had referred them to a package store down the road. The next link was the arrival of the officers at the package store to learn that the subjects indeed had been there and the operator had cashed a check on Georgia Power Company payable to ...