Green v. State

Decision Date05 December 1972
Docket NumberNo. 1,No. 47612,47612,1
PartiesMarshall GREEN v. The STATE
CourtGeorgia Court of Appeals

Glenn Zell, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Morris H. Rosenberg, Isaac Jenrette, Joel M. Feldman, Atlanta, for appellee.

Syllabus Opinion by the Court

STOLZ, Judge.

This appeal from the judgment of conviction of possession of narcotics, raises the issue of whether the trial judge erred in refusing to suppress as evidence the cocaine which the accused was charged with possessing.

The testimony at the suppression hearing was to the following effect. At about 3 a.m. on September 4, 1971, two City of Atlanta police patrolmen observed an automobile illegally parked (blocking one lane of traffic) at a location in the city at which there had been numerous burglaries and reports of drug traffic recently. In response to questioning by the policemen as to why they were there, the two occupants of the car said that they didn't know where the owner of the car was, and they moved the car when requested to do so. The policemen drove around in that general vicinity and, when they returned in 5-10 minutes with their car lights off, they observed the other car, about 100 feet from its original location, again illegally parked (within 10 feet of an intersection). The policemen observed the accused standing on the sidewalk about 75 feet from the other car and as they approached, he began to run toward the other car, carrying a 'small bag' in his hands. As he neared the other car, the policemen turned on their bright headlights and, from only 10-15 feet away, they saw him drop the 'bag' alongside the right rear portion of his car before he crouched over, preparatory to attempting to get into the car. The policemen yelled to him to stop before he got into the car, had both of the occupants of the car get out and place their hands on the car, and asked the accused what he had dropped. When he denied having dropped anything, the policemen picked up the item dropped (a cigarette box containing glassine packets of a white, powdery substance subsequently identified as cocaine). At this time the accused was placed under arrest and was subsequently charged with possession of narcotics. Held:

There is nothing unlawful in the government's appropriation of abandoned property, which does not constitute a search or seizure in the legal sense. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668, citing Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 68 L.Ed. 898; Whitlock v. State, 124 Ga.App. 599, 602(3b), 185 S.E.2d 90; Trujillo v. United States, 294 F.2d 583 (10th Cir., 191); United States v. Von Roeder, 435 F.2d 1004(1) (10th Cir., 1971); Molina v. State, 53 Wis.2d 662, 193 N.W.2d 874 (1972). 'A police officer is free to use and seize what he sees in plain sight if he is at a place where he is entitled to be. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067.' Lewis v. State, 126 Ga.App. 123, 126, 190 S.E.2d 123, 126; Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1942, 18 L.Ed.2d 782.

The appellant contends that the acts of the policemen, based solely on suspicion coerced him into discarding the contraband. 'The flight of one seeing a police officer whom he has reason to think may be about to accuse him of a specific oppense, even though the officer has no authority to make an arrest, and even though the suspect does not know whether or not he intends to attempt to arrest him, may be shown as indication of a sense of guilt. Grant v. State, 122 Ga. 740(2), 50 S.E. 946.' Richardson v. State, 113 Ga.App. 163(2), 147 S.E.2d 653. 'Flight in connection with other circumstances . . . (is) sufficient to constitute probable cause for arrest without a warrant.' (Emphasis supplied.) Id. (3a). The circumstances...

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  • Galloway v. State
    • United States
    • Georgia Court of Appeals
    • February 4, 1986
    ...23 (83 SC 1623, 10 LE2d 726) [(1963)]; Harris v. United States, 390 U.S. 234 (88 SC 992, 19 LE2d 1067) [(1968)]; Green v. State, 127 Ga.App. 713, 715 (194 SE2d 678) (1972). And where such a plain-view seizure takes place, there is in effect no search at all. Grimes v. United States, 405 F2d......
  • Johnson v. State, 56929
    • United States
    • Georgia Court of Appeals
    • January 15, 1979
    ...Evidence that an accused fled when seeing a police officer who he thought might want to arrest him is admissible. Green v. State, 127 Ga.App. 713, 715, 194 S.E.2d 678. Where a suspect escapes from jail, such evidence is admissible as tending to establish his guilt. Carver v. State, 137 Ga.A......
  • Cook v. State
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    • Georgia Court of Appeals
    • May 6, 1975
    ...374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067; Green v. State, 127 Ga.App. 713, 715, 194 S.E.2d 678. And where such a plain view seizure takes place there is in effect no search at all. Grimes v. United States, 405 F.2d 477 ......
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    • March 25, 2004
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