Goodwin v. State

Decision Date27 June 1996
Docket NumberNo. A96A0822,A96A0822
Citation222 Ga.App. 285,474 S.E.2d 84
PartiesGOODWIN v. The STATE.
CourtGeorgia Court of Appeals

Guy J. Notte, Decatur, for appellant.

Keith C. Martin, Sol., Elizabeth A. Baker, Asst. Sol., for appellee.

BIRDSONG, Presiding Judge.

Gregory D. Goodwin was convicted of driving under the influence and possessing an open container of an alcoholic beverage while operating a vehicle. He now appeals this judgment, enumerating three errors. Held:

1. In his first enumeration of error, appellant contends the court erred in denying the motion to suppress the stop of his vehicle. This enumeration is without merit.

Officer David Hardwick, a Clayton County police officer, was employed by the Home Lodge hotel as a part-time security guard on the night of appellant's arrest. The Home Lodge, at that time, unwillingly hosted a significant amount of drug traffic and prostitution. Officer Hardwick was instructed by the Home Lodge management to stop every vehicle that entered the premises and inquire whether its occupants were guests of the hotel. Upon stopping appellant's car, Officer Hardwick noticed an odor of alcohol on appellant's breath and person. As Officer Hardwick was off duty, he contacted the Forest Park police department. The arresting officer was then dispatched to the scene.

Under Georgia law, Home Lodge has an obligation as an innkeeper to keep its premises safe for guests. OCGA § 51-3-1; Davis v. Garden Svcs., 155 Ga.App. 34, 270 S.E.2d 228. This is particularly true here, as Home Lodge was aware of the drug traffic and prostitution problems on its property. Matt v. Days Inns of America, 212 Ga.App. 792, 443 S.E.2d 290, aff'd Days Inns of America v. Matt, 265 Ga. 235, 454 S.E.2d 507.

In accordance with this duty, Home Lodge's management directed Officer Hardwick to stop all cars entering the premises. The trial court correctly found that at the time Officer Hardwick stopped appellant he was not acting as a sworn police officer, but rather was "acting in his capacity as a hotel security officer and not attempting to search for incriminating evidence." Berger v. State, 150 Ga.App. 166, 168, 257 S.E.2d 8. Appellant incorrectly characterizes this as a defective "Terry" stop. Officer Hardwick was off duty, on private property, and stopped appellant's car not because there were specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, but solely because of his employer Home Lodge's legitimate instructions. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889. Accordingly, both the stop and the information derived therefrom were properly admitted into evidence.

Once appellant was stopped, Officer Hardwick noticed the smell of alcohol on appellant's breath and person. Although Hardwick was then acting in a purely private capacity, all law enforcement officers have the general duty to enforce the law and maintain the peace. Quinones v. Maier & Berkele, 192 Ga.App. 585, 385 S.E.2d 719. They carry this duty 24 hours a day, on and off duty. Carr v. State, 176 Ga.App. 113(1), 335 S.E.2d 622. That Officer Hardwick contacted the police department pursuant to this duty does not alter the admissibility of appellant's stop.

2. Appellant, in his second enumeration, argues that the trial court erred in admitting appellant's prior DUI conviction as a similar transaction. We disagree.

Before evidence of independent crimes is admissible two conditions must be satisfied. First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter. Everhart v. State, 209 Ga.App. 82, 432 S.E.2d 670, quoting Aaron v. State, 195 Ga.App. 339(1), 393 S.E.2d 698. There is no requirement that the other transaction must be identical in every aspect. The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character. Everhart, supra, citing Faison v. State, 199 Ga.App. 447, 448(1), 405 S.E.2d 277.

Applying Kirkland, we find that the trial court correctly admitted appellant's previous DUI into evidence. Kirkland v. State, 206 Ga.App. 27, 424 S.E.2d 638. Appellant's two DUI arrests occurred within three years of one another and each happened shortly after midnight on a Saturday. That appellant was in a different car and...

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12 cases
  • Deese v. NationsBank of Georgia, N.A., A96A0643
    • United States
    • United States Court of Appeals (Georgia)
    • 28 Junio 1996
    ...... Foreseeability and proximate cause should be left to the jury. .         I am authorized to state......
  • Watts v. State, No. A03A0929.
    • United States
    • United States Court of Appeals (Georgia)
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    ...Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Smith v. State, 236 Ga. 12, 22(10), 222 S.E.2d 308 (1976); Goodwin v. State, 222 Ga.App. 285, 287(3), 474 S.E.2d 84 (1996); Shipman v. State, 221 Ga.App. 160, 161(1), 471 S.E.2d 225 (1996); Charlton v. State, 217 Ga.App. 842, 844, 45......
  • U.S. v. Couch, 04-CR-570 (LEK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
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    ...an off-duty police officer discovered marijuana in a car on which he was working in his employment as a mechanic); Goodwin v. State, 222 Ga.App. 285, 474 S.E.2d 84, 86 (1996) (off-duty officer working as a security guard at a hotel was not acting as a police officer when, pursuant to employ......
  • State v. Graham, 63705-9
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    ...the goals of the relevant statutes. Brown, 36 Wash.App. at 168-69, 672 P.2d 1268 (citations omitted). See also Goodwin v. State, 222 Ga.App. 285, 474 S.E.2d 84 (1996) (all law enforcement officers have the general duty to enforce the law and maintain the peace and they carry this duty 24 ho......
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