Howie v. State

• Decision Date: 03 July 1995
• Docket Number: No. A95A0401,A95A0401
• Citation: 459 S.E.2d 179,218 Ga.App. 45
• Parties: HOWIE v. The STATE.
• Court: Georgia Court of Appeals

Page 179

459 S.E.2d 179

218 Ga.App. 45

HOWIE v. The STATE.

No. A95A0401.

Court of Appeals of Georgia.

July 3, 1995.

Reconsideration Dismissed July 19, 1995.

Lauren L. Becker, Atlanta, for appellant.

Debra Halpern Bernes, Asst. Dist. Atty., Thomas J. Charron, Dist. Atty., Nancy I. Jordan, Asst. Dist. Atty., Marietta, for appellee.

RUFFIN, Judge.

Thomas Howie was convicted of robbery and appeals his judgment of conviction following the denial of his motion for new trial.

The victim in this case, an elderly gentleman, was sweeping his sidewalk when someone grabbed him from behind and stole his wallet which contained five $100 bills. The robber fled to an apartment complex across the street from the victim's house. The victim told the police the robber was wearing white jeans with a blue stripe and a white button-down shirt. After the victim described the robber to the police, an alert was broadcast over the police radio for a thin, black male approximately six feet tall, who had a mustache and was wearing an earring and light-colored clothing.

At the hearing on Howie's motion to suppress and at trial, police officers testified to the following. Responding to the radio call, police drove to the area of the robbery and approximately two minutes later, they spotted Howie at an apartment complex across the street from the victim's house. When Howie saw their police car, he began to run, but the officers blocked him in with their car and told him to stop and to place his hands on the car. Howie was not free to leave at this point. Officer Willix testified that Howie seemed nervous, jittery, and evasive when asked his name and why he was running.

After Howie was in custody, he was searched and a wallet containing five $100 bills was found in his pocket. When questioned, Howie gave a fictitious name and initially told the officers he was staying at a nearby motel, but later changed his story to say he lived under a highway bridge. He was then taken to the victim's house for identification, and the victim stated he was fairly certain Howie was the same man who robbed him except that his clothes were different.

When Howie was questioned at the police station, a card in the wallet revealed his true address to be an apartment complex across the street from the victim's house. After Howie's wife consented, the apartment was searched, and police found a pair of white jeans with a blue design and a white button-down shirt on the floor. The clothes were brought to the victim who confirmed they were the exact clothes worn by his attacker.

1. Howie contends the trial court erred in denying his motion to suppress evidence found during his warrantless arrest. He argues that the arresting officers lacked probable cause to arrest him and that the ensuing search of his wallet was unlawful. We disagree. The officers testified at the suppression hearing that Howie matched the physical description of the suspect which had been broadcast on the police radio. Although the description of the clothing the suspect was wearing did not exactly match those worn by Howie, this was not fatal and did not prevent the officers from considering the description of the suspect's physical appearance such as build, race, and facial hair. See Gray v. State, 207 Ga.App. 648(2), 428 S.E.2d 663 (1993). In addition, Howie was spotted across the street from the scene of the crime within minutes after it occurred, and he began to run when he saw the police officers.

We have held that "[p]robable cause need not be defined in relation to any one particular element, but may exist because of the totality of circumstances.... Flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search." (Citations and punctuation omitted.) State v. Billoups, 191 Ga.App. 834, 835, 383 S.E.2d 198 (1989). We conclude, based on the totality of these circumstances, including Howie's attempted flight upon seeing the police car, that there was probable cause for the warrantless arrest.

2. Having determined that probable cause existed for the warrantless arrest of Howie, we accordingly hold that the ensuing search of his person was authorized pursuant to that arrest. See Paxton v. State, 160 Ga.App. 19(1), 285 S.E.2d 741 (1981). Accordingly, we do not reach the issue of whether the seizure of Howie's wallet--which clearly did not resemble a weapon--would have been permissible as a protective search for weapons had the circumstances warranted merely a limited Terry-type detention rather than an arrest.

3. Howie contends the search of his apartment was unlawful and that the trial court erred in denying his motion to suppress evidence seized from the apartment. Howie's wife testified that she is a diabetic and went home the day of the arrest to take her medication. When she arrived home, a police officer was outside her door, and Mrs. Howie testified that he detained her for 15 minutes until Detective Christopher arrived. Mrs. Howie also testified that she explained she needed to enter the apartment to take her medicine because she was going into a diabetic shock, but that when Detective Christopher arrived, he refused to allow her to enter the apartment...