Humphrey v. State

• Decision Date: 08 March 1974
• Docket Number: No. 28182,28182
• Citation: 231 Ga. 855,204 S.E.2d 603
• Parties: Jack HUMPHREY v. The STATE.
• Court: Georgia Supreme Court

Page 603

204 S.E.2d 603

231 Ga. 855

Jack HUMPHREY v. The STATE.

No. 28182.

Supreme Court of Georgia.

March 8, 1974.

Rehearing Denied March 21, 1974.

Adams, O'Neal, Hemingway & Kaplan, Manley F. Brown, H. T. O'Neal, Jr., Macon, for appellant.

Joneal Lee, Dist. Atty., Perry, for appellee.

Syllabus Opinion by the Court

PER CURIAM.

This case was transferred to this court from the Court of Appeals of Georgia because of a constitutional challenge to a Georgia statute. The appeal seeks review of several pre-trial rulings made in the Superior Court of Houston County following indictment by a grand jury in that county of the appellant for the offense of bribery. A second indictment also charges appellant, in one count, with the offense of carrying a concealed weapon; and in a second count, with the offense of carrying a pistol without a license. The appellant made two motions to suppress evidence, filed two pleas in abatement, numerous demurrers to the indictments and also made several written constitutional challenges to the Georgia Pre-Sentence Hearing Act, all of which were overruled by the trial court and are the subject of this appeal.

The trial court held an evidentiary hearing on appellant's motions to suppress evidence, and a transcript of the evidence at that hearing is included in the record filed in this court. The evidence adduced on the motions to suppress revealed the following: On January 9, 1973, two agents from the Georgia Department of Investigation were directed to report to the Mayor of Warner Robins, Georgia, to investigate alleged illicit activities involving a councilman of that municipality. The two agents arrived at the mayor's office on the morning of January 10, 1973, and immediately met with the mayor of the municipality and Councilman Steve Morgan. At that meeting, Councilman Morgan described to the agents two encounters that had allegedly taken place with appellant who was also a councilman of the municipality, during which encounters the appellant had indicated his intention to solicit money from a developer, Charles McGlamry, in return for appellant's vote as a councilman to approve a water and sewer services expansion project of the municipality. The agents were told the developer had been approached for a 'pay-off' by appellant through a Mr. Walter Whiting. Following this meeting, the D.O.I. Agents met with the developer and Mr. Whiting at approximately 3 p.m. on the afternoon of January 10, 1973, and confirmed appellant's solicitation through Mr. Whiting of a pay-off. The agents then met again with the mayor and Councilman Morgan and asked these two officials to pretend to go along with appellant in further dealings with him. Pursuant to this plan, Councilman Morgan called the appellant and set up a meeting with him at Councilman Morgan's office. This meeting occurred at approximately 7:30 p.m. on January 10, 1973. At that meeting, with Councilman Morgan's consent, D.O.I. Agents recorded a face-to-face conversation between Councilman Morgan and the appellant through the use of a tape recorder which had been placed secretly in Councilman Morgan's office. After the appellant left that meeting, the D.O.I. Agents listened to the tape of the conversation between Councilman Morgan and the appellant. The tape contains numerous statements tending to indicate appellant's involvement in a pay-off solicitation from the developer. It reflects that during the course of the conversation appellant discussed with Councilman Morgan a specific price for the pay-off in connection with the water and sewer project, which price Councilman Morgan was to convey to the contractor following the conversation. At approximately 8 o'clock that same evening, the D.O.I. Agents contacted the Sheriff of Houston County to secure his co-operation and revealed to him the details of their investigation. Shortly thereafter, Councilman Morgan, in pursuance of the plan he and appellant had agreed upon, contracted the developer, Charles McGlamry, to set up the pay-off. The developer, who had also been made privy to the plan of the D.O.I. Agents, agreed to put up approximately $1,600. Councilman Morgan revealed this to the law officers and told them the pay-off would be made at the developer's office. The agents and the sheriff, together with other officers, went to the developer's office, hid themselves, planted a tape recorder and awaited appellant's arrival. Appellant came to the developer's office but immediately asked him to go for a ride and the two men were gone for approximately a half-hour. Upon returning, the developer, Mr. McGlamry, informed the officers that no money had been transferred but that the pay-off would take place at Councilman Morgan's office. The officers then returned to Councilman Morgan's office. Subsequently, Councilman Morgan met with the developer, McGlamry, and received from him $1,580. Thereafter, Councilman Morgan returned to his office and met with the law enforcement officers. The officers then marked the money and Councilman Morgan telephoned the appellant to tell him the money was in hand, and appellant instructed Councilman Morgan to bring half of it to his office. Councilman Morgan did this, and when he left appellant's office the law officers immediately entered the office and arrested the appellant for bribery. Upon the arrest of appellant, the officers found the marked money which was on the floor under appellant's desk at his office and also found a pistol concealed in the rear pocket of appellant's trousers.

No warrants of any kind were obtained in this case for the arrest of the appellant or for the seized recording of the conversation between Councilman Morgan and appellant or for the seizure of the marked money and the pistol from appellant's possession at the time of his arrest. Testimony was also adduced, at the evidentiary hearing on the motions to suppress, showing that the situs of appellant's arrest was an office which he used located directly behind the sheriff's office and that a justice of the peace was present in the sheriff's office that same evening between 9:30 and 10:00 o'clock, p.m. The justice of the peace testified at the evidentiary hearing that his daily custom was to arrive at the sheriff's office at approximately 6 p.m. each day for his hearings, after which he usually ate supper and then on many days returned to the sheriff's office at night for conversation and company since he was a bachelor. The justice of the peace further testified that his home was only a five-minute drive from the sheriff's office.

I.

Motion to Suppress Evidence Seized at the Time of Appellant's Arrest.

The basic question presented in appellant's first enumeration of error is whether the search of appellant in his office and the seizure of the alleged bribery money and pistol were legal. Under Georgia law (Code Ann. § 27-301) searches and seizures without warrants are authorized when made as an incident to a lawful arrest. The central point determinative of the search of appellant without a warrant is whether appellant's arrest by the officers was a legal arrest since it was made without a warrant. If the arrest were lawful, the search was lawful. If the arrest were illegal, the search was unlawful and the property seized as a result of it should have been suppressed as evidence by the trial court.

Code § 27-207 provides: 'An arrest for a crime may be made by an officer, either under a warrant, or without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant.'

As we have seen, Georgia law plainly restricts arrests without a warrant and the statute authorizes it to be done only in three instances. Thus, the question we face is whether the arrest in this case can logically fit into any of the three categories or exceptions authorized by the statute. This arrest was made after a city councilman, who was working with the law enforcement officers in accordance with a pre-arranged plan, had transferred the alleged bribe money to appellant. It is clear that the arresting officers were not dealing with a situation where the appellant was endeavoring to escape. He was arrested in his office which was surrounded by law enforcement officers and there was not even an attempt to escape made by the appellant. Additionally, it appears that the officers had reliable testimony available to them, on the afternoon of the very day on which the arrest was made that evening, and also had in their possession an incriminating recording of appellant's conversation with Councilman Morgan, that would authorize the issuance of a warrant for solicitation. A justice of the peace was, on that same night, available in the immediate vicinity; and, yet, no effort was made by the officers to secure a warrant although the arrest was not made until a later hour of that evening. Consequently, it does not appear that a magistrate was unavilable to issue a warrant or that the appellant was endeavoring to escape. The only possible category under which the arrest might be justified without a warrant is by that provisions in the statute which authorizes an officer to make an arrest, 'if the offense is committed in his presence.' 'A crime is committed in the presence of an officer, if he sees it committed, or by the exercise of any of his senses he has knowledge, together with what he sees, that a crime is being committed by the person sought to be arrested.' Howell v. State, 162 Ga. 14(6c), 134 S.E. 59; Phelps v. State, 106 Ga.App. 132, 126 S.E.2d 429. See also, Ramsey v. State, 92 Ga. 53, 17 S.E. 613; Porter v. State, 124 Ga. 297, 306, 52 S.E. 283; and, Davidson v. State, 125 Ga.App. 502, 188 S.E.2d 124. The record before us discloses these law enforcement officers had sufficient personal knowledge of the acceptance of the bribe to justify their arrest of ...