Croker v. State

• Decision Date: 07 July 1966
• Docket Number: 2,No. 41952,Nos. 1,3,41952,s. 1
• Citation: 114 Ga.App. 43,150 S.E.2d 294
• Parties: Robert CROKER v. The STATE
• Court: Georgia Court of Appeals

Page 294

150 S.E.2d 294

114 Ga.App. 43

Robert CROKER v. The STATE.

No. 41952.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

July 7, 1966.

Syllabus by the Court

1. Where a search of an automobile is made by a police officer without a warrant, the test of its legality is whether the search was reasonable. In applying this test reasonableness is not determined by the hindsight of appellate court judges after weeks of academic deliberation; it is determined by the foresight of the policeman on the scene who must act in the public interest in a very short space of time. The reasonableness of his action must be judged in relation to the circumstances then existing and is in the first instance a question for the trial judge to determine.

2. Proof that a defendant possessed burglary tools 'with the intent to use or employ or allow the same to be used in the commission of a crime, or knowingly that the same are intended to be so used' is essential to support a conviction under Code § 26-2701. (Emphasis supplied).

The defendant appeals from his conviction on an indictment charging him with the possession of certain burglary tools.

Henritze, Baker & Bailey, Atlanta, for plaintiff in error.

Chastine Parker, Sol. Gen., Rome, for defendant in error.

HALL, Judge.

1. One of the enumerations of error is that the trial court erred in overruling the defendant's objection to the admission of certain evidence found in the trunk of the defendant's automobile on the ground that the evidence was the product of an unreasonable, illegal search and seizure prohibited by the Fourth and Fourteenth Amendments to the United States Constitution.

'Common sense dictates, of course, that questions involving searches of motorcars or other things readily moved cannot be treated as identical to questions arising out of searches of fixed structures like houses. For this reason, what may be an unreasonable search of a house may be reasonable in the case of a motorcar. * * * But even in the case of motorcars, the test still is, was the search unreasonable.' Preston v. United States, 376 U.S. 364, 366-367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777). In applying this test, reasonableness is not determined by the hindsight of appellate court judges after weeks of academic deliberation; it is determined by the foresight of the policeman on the scene who must act in the public interest in a very short space of time. The reasonableness of his action must be judged 'in relation to the circumstances then existing and is in the first instance a question for the trial judge to determine.' Roach v. State, 221 Ga. 783(3), 147 S.E.2d 299; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (footnote 3); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726.

Where an abandoned car is a necessary part of a criminal investigation, its search is lawful even though no search warrant was obtained. Sandel v. State, 158 Tex.Cr.R. 101, 253 S.W.2d 283. 'Abandonment, of course, is largely a question of intent. United States v. Wheeler, 161 F.Supp. 193, 198 (W.D.Ark., 1958). Intent, in turn, is a question of fact.' United States v. Minker, 3 Cir., 312 F.2d 632. We must also remember that 'In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879. (Emphasis supplied). 'To show probable cause it is not necessary that the arresting officer should have had before him legal evidence of the suspected illegal act.' Husty v. United States, 282 U.S. 694, 700-701, 51 S.Ct. 240, 241-242, 75 L.Ed. 629.

What were the circumstances existing at the time the automobile was searched by the police officers? The officers on patrol had received a call around 11 p.m. from the sergeant instructing them to investigate and look out for a specified type of automobile with a trailer attached to the back of it, that was riding around at a certain location. About midnight they found, in front of a suburban house, an automobile of the description given by the sergeant, with a trailer attached, which had a Fulton County license tag indicating that its owner lived some seventy miles from the place it was parked. The officers testified that they 'checked it out' to see if the automobile was abandoned, and 'People hadn't seen a car like that out in that section.' They did not find a name or anything in the car to identify the owner. One of the officers had with him an automobile key which had been taken from the defendant (who had earlier in the evening been placed in custody for investigation) and which the defendant had said was the key to his automobile in Atlanta. This key fit the ignition and the trunk. They did not assume that the car belonged to the defendant because he had previously informed them his car was in another city. The officers unlocked and opened the trunk and found a suitcase containing burglary tools. They drove the automobile to headquarters, and talked with the defendant, who identified the car and suitcase as his, and searched the car some more and found a pistol, dynamite caps and other items. They then arrested Croker.

What was reasonable in the minds of these officers at the moment they first searched the automobile? Should they conduct an immediate search or go and try to obtain a search warrant during the early hours after midnight? The answer is well stated by the Supreme Court of the United States in Husty v. United States, supra, 282 U.S. 701, 51 S.Ct. 242: 'In such circumstances we do not think the officers should be required to speculate upon the chances of successfully carrying out the search, after the delay and withdrawal from the scene of one or more officers which would have been ncessary to procure a warrant.' (Emphasis supplied).

Both the Supreme Cour of Georgia and the Supreme Court of the United States have held that 'in the first instance' the reasonableness of a search is 'a question for the trial judge to determine.' In the present case the trial court admitted into evidence those articles that were seized by the officers at the time when, according to their testimony, it was reasonable for them to believe that the automobile was abandoned. The court excluded from evidence those articles that were seized by the officers after they returned to police headquarters with the automobile and learned that it was owned by the defendant. It does not appear as a matter of law that the trial court was in error in admitting the evidence objected to.

2. Proof that the defendant possessed burglary tools 'with the intent to use or employ or allow the same to be used * * * in the commission of a crime, or knowing that the same are intended to be so used,' is essential to support a conviction. Code § 26-2701. The only evidence in this case reflecting on the defendant's criminal intent is that the defendant was in possession of the tools, that he was observed by police officers near trailer courts about three miles out in the city and stated that a friend had let him out of a car and he was going fishing, and that police officers found his car, apparently abandoned, in the same area. This evidence was not sufficient to support the conviction. Accord Easterwood v. State, 83 Ga.App. 400, 402, 63 S.E.2d 689. There was no evidence that a burglary had been committed or attempted near the same time and place, or that the defendant had been involved in previous burglaries, or evidence of other facts or circumstances present in cases where the evidence was held sufficient to support a finding of criminal intent. See Farlow v. State, 59 Ga.App. 881, 2 S.E.2d 500; Weeks v. State, 63 Ga.App. 773, 11 S.E.2d 670; Franks v. State, 74 Ga.App. 400, 39 S.E.2d 761; Montgomery v. State, 80 Ga.App. 102, 55 S.E.2d 666; Shelly v. State, 107 Ga.App. 736, 131 S.E.2d 135.

Judgment reversed for the reason stated in Division 2.

BELL, P.J., and FRANKUM, JORDAN and EBERHARDT, JJ., concur.

FELTON, C.J., NICHOLS, P.J., and PANNELL and DEEN, JJ., dissent from the ruling in Division 1.

DEEN, Judge (dissenting in part).

While I concur in the second division of the opinion and in the judgment of reversal, I do not agree that the search of the defendant's automobile without a warrant was reasonable within the meaning of the constitutional safeguard. I consider the question important because the decision in this case is tantamount to a holding that any police officer in this State may break and enter any automobile where the driver or an occupant is temporarily absent, justifying after the event on the ground that the car has been 'abandoned.'

Sandel v. State, 158 Tex.Cr.R. 101, 253 S.W.2d 283, cited in...