Hall v. State

• Decision Date: 04 October 1985
• Docket Number: 70276,Nos. 70275,s. 70275
• Citation: 176 Ga.App. 428,336 S.E.2d 291
• Parties: HALL v. The STATE. VICKERY v. The STATE.
• Court: Georgia Court of Appeals

Page 291

336 S.E.2d 291

176 Ga.App. 428

HALL v. The STATE.

VICKERY v. The STATE.

Nos. 70275, 70276.

Court of Appeals of Georgia.

Oct. 4, 1985.

Rehearing Denied Oct. 16, 1985.

Michael C. Garrett, Augusta, for appellants.

Sam B. Sibley, Jr., Dist. Atty., for appellee.

POPE, Judge.

Appellants Gary Lynn Hall and Patricia Ann Vickery were jointly tried and convicted of possessing 80 pounds of marijuana in violation of the Georgia Controlled Substances Act. OCGA § 16-13-30(j). These appeals from their convictions raise similar issues and thus are consolidated for the purpose of review.

1. Both appellants first cite as error the admission of tape recorded telephone conversation between appellant Vickery and her brother, Mark Perano, who had become a confidential informant. The trial court held a hearing outside the jury's presence to determine the admissibility of the tape recording. Finding that a proper foundation had been laid, the trial court admitted the tape recorded conversation.

A comprehensive set of standards for the admission of sound recordings has been set forth by this court in Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga.App. 207 (3), 88 S.E.2d 167 (1955). The requirements were approved by the Supreme Court in Central of Ga. R. Co. v. Collins, 232 Ga. 790(3), 209 S.E.2d 1 (1974). Among the requirements of laying a proper foundation found in Solomon, supra at 212, 88 S.E.2d 167, is the requirement that the State show "that the testimony elicited was freely and voluntarily made, without any kind of duress." See also OCGA § 16-11-66. This is now the sole basis upon which the appellants contend that the tape recording was inadmissible. It is argued that Mark Perano, the confidential informant, did not voluntarily consent to the tape recording of the conversation. The evidence shows that officers with the Columbia County Sheriff's Department arrested Perano for possessing approximately 22 pounds of marijuana. An officer testified that after his arrest, Perano agreed to help the authorities in capturing his source of drugs because Perano said he had a job now and a family to think of. The officer further testified that he did not promise Perano or his wife any benefit or reward if Perano cooperated. According to the officer, "I told him ... that any testimony that I might be able to provide to a judge or a jury concerning his assistance to us in arresting his sources of marijuana could be helpful to him." After he was granted immunity, Perano testified that he did not object to the officers' recording the telephone conversation because he didn't know if tape recording was right or wrong. Perano further testified that he cooperated because he was afraid of the officers and because they had told him that they were going to arrest his wife and take away his baby. Such evidence reveals a conflict as to whether Perano consented to the conversation and the tape recording thereof. This conflict was resolved by the trial court in favor of admissibility, and we do not find this ruling clearly erroneous. See Ramsey v. State, 165 Ga.App. 854(3), 303 S.E.2d 32 (1983). "Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to admissibility will be upheld on appeal. [Cit.]" Crowe v. State, 160 Ga.App. 189, 287 S.E.2d 56 (1981); see Brooks v. State, 141 Ga.App. 725(8), 234 S.E.2d 541 (1977).

2. Both appellants cite as error the trial court's denial of their motion to suppress evidence which they argue was illegally seized from the trunk of appellant Hall's car. Appellants contend that the police were required to obtain a search warrant before searching the car because the police had probable cause and no exigent circumstances existed. The evidence adduced at the hearing on the motion to suppress shows the following circumstances relative to the search and seizure of the car and appellants' arrest: After Perano decided to cooperate with investigators in capturing his drug suppliers, Perano identified appellants as his suppliers and gave investigators their description. Perano told investigators that within the next three days, appellants would be traveling to the Augusta area in a brown Oldsmobile Delta 88 bearing Mississippi license plates with approximately 80 pounds of marijuana. Perano also told investigators that when appellant Hall came to Augusta, Hall preferred to stay at the Ramada Inn in Richmond County. Perano related that Hall had been arrested in Mississippi for possession of marijuana and sentenced to jail and was currently free on an appeal bond. Mississippi authorities were contacted and they confirmed the information Perano had supplied. The Mississippi authorities also provided the investigators with more details of the description of Hall's car and his criminal record. Subsequently, the investigators began tape recording telephone calls received at Perano's house. By a telephone call received on October 11, 1983, investigators learned appellants were en route to Augusta. Around-the-clock surveillance of the Ramada Inn was then begun. At approximately 3:00 p.m. on October 12, investigators spotted appellants checking into the Ramada Inn. A GBI agent testified that he and other agents, using binoculars from an elevated position, were unable to see any marijuana in the car or on the persons of appellants. According to a county investigator, since the car was not under surveillance as it entered Richmond County, the investigators were not certain whether the marijuana was indeed in the car or whether appellants had stopped and hidden it on their way into the Augusta area. Investigators observed appellants at the motel for approximately two hours before appellants left the motel in Hall's car. When appellants exited I-20 at Belair Road, approximately one mile from Perano's house, the investigators immediately believed the marijuana was in the car. When the investigators moved in, appellants attempted to escape, but police cars pinned them in on both sides forcing them to stop. After appellants were taken into custody, investigators, without a search warrant, searched the car and found three bales of marijuana and a shoebox containing $53,600 in the trunk.

Generally, searches conducted without a warrant "are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Among these exceptions is the "automobile exception" set forth by the United States Supreme Court in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). This exception allows a warrantless search whenever "(1) probable cause to believe that the automobile contains contraband or evidence of a crime conjoins with (2) exigent circumstances making the warrant procedure impractical and causing the resort to an immediate warrantless search to be reasonable and necessary. [Cits.]" McDonald v. State, 156 Ga.App. 143, 144, 273 S.E.2d 881 (1980). Appellants concede that the police had probable cause to obtain a warrant to search the car based on the information received from Perano and authorities in Mississippi. Appellants argue, however, that the investigators improperly ignored the evidence of probable cause and waited for appellants to act in a way to create an appearance of exigency in violation of constitutional search and seizure principles.

"[T]he inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible." South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976). This court recently stated: " 'One of the exigent circumstances justifying a warrantless search is where there is a seizure and search of a moving vehicle. [Cit.] The word "automobile" is not a talisman however and unless the vehicle is moving or is readily movable there are no exigent circumstances and a warrant is required. (Cit.) When the vehicle is moving however, there is only a requirement that the search and seizure be based upon sufficient probable cause.' [Cits.]" State v. Estrado, 170 Ga.App. 889, 891, 318 S.E.2d 505 (1984); see Smith v. State, 135 Ga.App. 424, 218 S.E.2d 133 (1975); California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985); United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). See also Holmes v. State, 163 Ga.App. 753(1), 294 S.E.2d 719 (1982). Since appellants concede probable cause existed, we must determine whether the police were reasonable in not obtaining a search warrant before appellants were stopped on Belair Road.

Although police may not create exigent circumstances to avoid obtaining search warrants, Collins v. State, 161 Ga.App. 546(1), 287...