Fears v. State

Decision Date25 January 1980
Docket NumberNo. 58694,58694
Citation152 Ga.App. 817,264 S.E.2d 284
PartiesFEARS v. The STATE.
CourtGeorgia Court of Appeals

Robert Peckham, Athens, for appellant.

Harry N. Gordon, Dist. Atty., B. Thomas Cook, Jr., Asst. Dist. Atty., for appellee.


Appellant Walter Anthony Fears was indicted for armed robbery and aggravated assault but convicted of attempted armed robbery and aggravated assault, for the act of shooting Charles Harris, a cab driver, five times in the head. The evidence shows that the cab company dispatcher had directed Charles Harris to a trailer address, where he picked up a man who was wearing a striped tee-shirt and carrying a green canvas tote bag (appellant herein). After driving to a destination at the appellant's direction, Mr. Harris stopped the cab and turned to advise the appellant the fare was 75 cents. Mr. Harris saw the appellant briefly, then turned back and again saw the appellant in the rear view mirror just before the appellant got out and stood at the driver's door. At that point, appellant shot Charles Harris five times. Mr. Harris' foot slipped off the brake pedal and the cab rolled and turned over into a ditch. When the police arrived, they found bloody money scattered about the inside of the cab, and one dollar bill hanging from Mr. Harris' left shirt pocket, where he kept his money folded. Mr. Harris had had $36 in small bills before the shooting; only $28 was recovered. Within 35 minutes after the police were called to the scene, the police had been to the point of origin and obtained from a woman there the description and name of the man who had just left to get in a cab, and had received a telephone call from another woman at the trip's destination who stated that her brother who had shot the cab driver had left the gun at her house and that she wanted the police to come "get it out of her house." When the police arrived back at that address, across from the scene of the crime, the woman, who is appellant's sister, lead them to a bedroom and pointed to a green canvas bag on a bed, and told them again that her brother Walter had left the bag there and the gun was in it and she wanted the gun out of her house. The officers opened the bag, removed a striped tee-shirt, a gun, a blood-spattered tissue paper, and other articles which were later introduced at trial. At trial, Charles Harris positively identified the appellant as his assailant. Upon convictions for aggravated assault and criminal attempt to commit armed robbery, appellant urges error in the trial court's denial of his motion to suppress, and contends that the evidence wholly fails to support a conviction for attempted armed robbery. Held :

1. Appellant argues that his tote bag, which he had left at his sister's house, was a container in which he had a legitimate expectation of privacy, as in the footlocker and unlocked suitcase in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 and Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979). (See especially, United States v. Block, 4 Cir., 590 F.2d 535, 539.) However, appellant left his bag in his sister's house, not his own. He had no proprietary interest in the house and would have no standing to object to a search to which his sister consented (Brown v. State, 240 Ga. 274, 275, 240 S.E.2d 63). This is not a case where the "absent target" and the consenting third party have common authority over and mutual use of premises. See United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242; Barrow v. State, 235 Ga. 635, 637, 221 S.E.2d 416. Therefore, the principle applied in such cases that the third party has the right to permit inspection in his own right and that the absent target has assumed the risk that the third party may grant this permission to others (United States v. Matlock, supra; Frazier v. Cupp, 394 U.S. 731, 740, 89 S.Ct. 1420, 22 L.Ed.2d 684; United States v. Bethea, 4 Cir., 598 F.2d 331, 335; United States v. Block, supra; Barrow v. State, supra) applies even more clearly in this case. Appellant contends, nevertheless, that he had a reasonable expectation of privacy as to the contents of the tote bag itself. We disagree. After committing a violent crime, appellant left his bag in a house belonging to another and over which he had no authority or proprietary interests, and no reasonable expectation of privacy generally; the owner knew of or suspected the crime and apparently examined the bag herself and discovered the weapon. She had a right to have it removed from her house and had the right to permit the police to open the bag to get it out. Moreover, when he left his bag in his sister's house, appellant did not give her any instructions as to what to do with it and cannot object to her permitting its contents to be removed (see Leach v. State, 143 Ga.App. 598, 601, 239 S.E.2d 177). Appellant's relinquishment of all control over the bag in the house of another was tantamount to an abandonment. The circumstances wherein within minutes after appellant shot the cab driver in front of her house, appellant's sister called the police in some distress and stated that he had left the gun in her house and asked them to come get it, negate any inference that appellant could have a reasonable expectation of privacy in the contents of the bag which he abandoned in her house. It was otherwise in United States v. Block, supra, because the son lived in a room in his mother's house and therefore had a right to object to the search of his closed footlocker in that room and was not held to have assumed the risk that his mother might permit others to search it.

The removal of the gun under these circumstances here does not qualify as a search, and the seizure was not unreasonable. See Coolidge v. New Hampshire, 403 U.S. 443, 447-449, 91 S.Ct. 2022, 2028-2029, 29 L.Ed.2d 564. See ...

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  • Sevilla-Carcamo v. State
    • United States
    • Georgia Court of Appeals
    • 23 d2 Fevereiro d2 2016
    ...particularly in the absence of any objection by [the passenger, to whom the vehicle was registered]."); see also Fears v. State, 152 Ga.App. 817, 819(1), 264 S.E.2d 284 (1979) ("After committing a violent crime, appellant left his bag in a house belonging to another and over which he had no......
  • State v. Guebara
    • United States
    • Court of Appeals of New Mexico
    • 7 d2 Março d2 1995
    ...with instructions to find buyer, proprietor had authority to consent to inspection of VIN under vehicle); see also Fears v. State, 152 Ga.App. 817, 264 S.E.2d 284, 285 (1979) (defendant's sister had a right to call police and consent to a search after finding gun in bag defendant left at he......
  • Rucker v. State
    • United States
    • Georgia Court of Appeals
    • 7 d2 Janeiro d2 1986
    ...at the conclusion he so intended. The intention may be gathered from the circumstances of the case as proved." Fears v. State, 152 Ga.App. 817, 820 (2), 264 S.E.2d 284. 3. The indictment charged defendant "with the offense of AGGRAVATED ASSAULT WITH INTENT TO RAPE, for that said accused, in......
  • Wilder v. State
    • United States
    • Georgia Supreme Court
    • 7 d1 Novembro d1 2011
    ...to be inspected”); Brown v. State, 288 Ga. 404(2), 703 S.E.2d 624 (2010) (applying third party consent doctrine); Fears v. State, 152 Ga.App. 817, 818(1), 264 S.E.2d 284 (1979) (applying third party consent doctrine). The Court of Appeals did not address the merits of this issue; the issue ......
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