Harvey v. State

• Decision Date: 29 April 1996
• Docket Number: No. S95G1743,S95G1743
• Citation: Harvey v. State, 266 Ga. 671, 469 S.E.2d 176 (Ga. 1996)
• Parties: HARVEY v. The STATE.
• Court: Georgia Supreme Court

Page 176

469 S.E.2d 176

266 Ga. 671

HARVEY v.The STATE.

No. S95G1743.

Supreme Court of Georgia.

April 29, 1996.

Reconsideration Denied May 17, 1996.

Steve W. Reighard, Decatur, for Harvey.

Lewis R. Slaton, Dist. Atty., Juliette W. Scales, Asst. Dist. Atty., Atlanta, for State.

Colette B. Resnik, Nicholas A. Lotito, Davis Zipperman Kirschenbaum & Lotito, Atlanta, for Amicus Appellant.

CARLEY, Justice.

On September 3, 1993, a bench warrant was issued in Cobb County for the arrest of Frederick Harvey.However, this bench warrant subsequently was recalled by an order entered on October 8, 1993.On October 12, 1993, a Fulton County police officer responding to a report of suspicious activity encountered Harvey who was standing with two other men.The officer asked for and received identification from all three of the men.Calling in the three names, the officer requested a computer check through the Georgia and National Crime Information Centers (NCIC).This computer check revealed the bench warrant for Harvey's arrest.The officer then asked his dispatcher to ascertain the status of the warrant and was told that it was still outstanding and valid.Harvey was then placed under arrest and, in a search incident to that arrest, cocaine was discovered.When Harvey was indicted for felony possession of cocaine with intent to distribute, he filed a motion to suppress on the ground that his arrest pursuant to the recalled bench warrant was unlawful.The trial court denied Harvey's motion and the Court of Appeals affirmed.Harvey v. State, 217 Ga.App. 776, 459 S.E.2d 433(1995).We granted certiorari in order to review the opinion of the Court of Appeals.

The federal exclusionary rule, applicable only when evidence has been seized pursuant to an unlawful search, operates as "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect...."United States v. Calandra, 414 U.S. 338, 348(III), 94 S.Ct. 613, 620, 38 L.Ed.2d 561(1974).Therefore, any exception to the federal exclusionary rule is implicated only when evidence has been seized pursuant to an unlawful search.Thus, in United States v. Leon, 468 U.S. 897, 907(II)(A), 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677(1984), the Supreme Court of the United States held that the exclusionary rule does not bar the introduction in the State's "case in chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective."However, that holding has no application in this case.Not only is Leon factually distinguishable because the evidence was seized from Harvey without a search warrant, the Leon "good faith" exception "is not applicable in Georgia in light of our legislatively-mandated exclusionary rule found in OCGA § 17-5-30...."Gary v. State, 262 Ga. 573, 577, 422 S.E.2d 426(1992).By its terms, OCGA § 17-5-30 authorizes no exception to Georgia's exclusionary rule when evidence has been seized unlawfully.OCGA § 17-5-30(a)(1) and (2) clearly provide that "[a]defendant aggrieved by an unlawful search and seizure" is entitled to suppression of the evidence regardless of whether the unlawful search and seizure were accomplished with or without a warrant.Thus, as the Court of Appeals correctly held, the issue to be resolved in this case is whether the search itself can be upheld under an exception to the warrant requirement.Unless the warrantless search of Harvey was valid, then the seizure of the evidence was unlawful and OCGA § 17-5-30(a)(1) mandates that Harvey's motion to suppress be granted.

A warrantless search is authorized if conducted pursuant to a lawful arrest.OCGA § 17-5-1.It is undisputed that Harvey was not lawfully arrested pursuant to the bench warrant itself, since that bench warrant had been recalled several days before Harvey was arrested.Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34(1995);State v. Stringer, 258 Ga. 605, 372 S.E.2d 426(1988).However, the validity of an arrest is not necessarily dependent upon the existence of a valid arrest warrant because if the person detained is outside of his home and probable cause to arrest exists at the time of detention, a warrant is not required.State v. Grant, 257 Ga. 123, 125(1), 355 S.E.2d 646(1987).If, when the arrest is made, the facts and circumstances known to the arresting officer are sufficient to warrant a prudent person in believing that the accused had committed or is committing an offense, the warrantless arrest passes constitutional muster.Callaway v. State, 257 Ga. 12, 13-14(2), 354 S.E.2d 118(1987).Accordingly, resolution of this case ultimately is dependent upon whether, at the time of Harvey's arrest, the officer had probable cause to make that arrest.CompareArizona v. Evans, supra at ----, fn. 1, 115 S.Ct. at 1189 fn. 1(wherein Arizona "conceded that [the] arrest violated the Fourth Amendment");State v. Stringer, supra(wherein the State"stipulated that [the] arrest was not based upon probable cause").

At the moment the arrest was made, the officer knew that a valid bench warrant had been issued for Harvey's arrest.CompareWhiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306(1971)(wherein no valid arrest warrant had ever been issued)."The radio transmission, which confirmed the outstanding warrants, established the necessary probable cause to arrest [Harvey].[Cit.]"Singleton v. State, 194 Ga.App. 423(1), 390 S.E.2d 648(1990).It is of no consequence that the officer later discovered that the validly issued bench warrant had been recalled."[T]he existence of probable cause must be 'measured by current knowledge, i.e., at the moment the arrest is made and not hindsight.(Cit.)'[Cit.]"Jackson v. State, 191 Ga.App. 439, 441(2), 382 S.E.2d 177(1989).

The material inquiry is whether the facts within the officer's knowledge at the time of the arrest constituted reasonably trustworthy information which was sufficient to authorize a prudent person to believe that Harvey had committed an offense.Callaway v. State, supra at 13-14(2), 354 S.E.2d 118.While the NCIC printouts would not be sufficient to authorize conviction, they have been held to be reliable enough to underlie " 'the reasonable belief which is needed to establish probable cause for arrest.'[Cits.]"Paxton v. State, 160 Ga.App. 19(1), 285 S.E.2d 741(1981).Thus, Harvey's arrest was lawful since the evidence shows that the officer was acting on reliable information that there was an outstanding felony warrant against Harvey.Watts v. Cannon, 224 Ga. 797, 798(1), 164 S.E.2d 780(1968).In relying upon the computer report, the officer was

quite wrong as it turned out, and subjective good-faith belief would not in itself justify either the arrest or the subsequent search.But sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment and on the record before us the officer['s] mistake was understandable and the arrest a reasonable response to the situation facing [him] at the time.

Hill v. California, 401 U.S. 797, 804(II), 91 S.Ct. 1106, 1110-11, 28 L.Ed.2d 484(1971).

Although in arresting Harvey, the officer relied upon the misinformation from the NCIC, he neither knew, nor could be reasonably expected to have known, that the information was incorrect when he made the arrest.The information, which subsequently was proven wrong, was stale by only four days.This Court, in hindsight, will not declare an arrest to be invalid when the arresting officer reasonably relied upon information which he had no reason to think was incorrect.Commonwealth v. Riley, 284 Pa.Super. 280, 425 A.2d 813, 816(I)(1981).See alsoIn re R.E.G., 602 A.2d 146, 149(II)(D.C.App.1992);Childress v. U.S., 381 A.2d 614, 616(I)(D.C.App.1977).

State v. Stringer, supra, is not authority for a contrary holding.The officer in that case obtained no reliable information from the NCIC or any other source that the bench warrant was still valid and, as previously noted, the State stipulated that probable cause for the arrest did not exist.Probable cause for an arrest does not depend on, and is an entirely separate question from, the existence of a valid bench warrant and its reasonable execution.Stewart v. Williams, 243 Ga. 580, 583(2), 255 S.E.2d 699(1979).See alsoOCGA § 17-7-90.Because of the stipulation in Stringer, this court was concerned only with the validity of the bench warrant and not, as in the instant case, with the effect of a recalled bench warrant on the determination of probable cause for a warrantless arrest.Furthermore, anticipating the future holding in Gary, this court refused to apply the Leon "good-faith" exception so as to authorize the admission of evidence seized pursuant to what had been stipulated to be an invalid arrest.There is no such stipulation as to the invalidity of Harvey's arrest, the officer who arrested Harvey obtained information from a reliable source which indicated the continuing effectiveness of a bench warrant, and, because probable cause for Harvey's warrantless arrest existed, the applicability of the Leon "good faith" exception is not implicated by this case.It follows that the Court of Appeals correctly affirmed the denial of Harvey's motion to suppress on the basis of the existence of probable cause for his arrest.

Judgment affirmed.

All the Justices concur, except BENHAM, C.J., FLETCHER, P.J. and SEARS, J., who dissent.

BENHAM, Chief Justice, dissenting.

I concur fully with Justice Sears's dissent and write separately to address the majority opinion's treatment of State v. Stringer, 258 Ga. 605, 372 S.E.2d 426(1988), andGary v. State, 262 Ga. 573, 422 S.E.2d 426(1992).

The majority opinion's attempt to distinguish Stringer on the ground that there was no stipulation in this case that the bench warrant was invalid is ineffective: though...