Johnson v. State, 27671
| Decision Date | 22 February 1973 |
| Docket Number | No. 27671,27671 |
| Citation | 196 S.E.2d 385,230 Ga. 196 |
| Parties | Jerry L. JOHNSON v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The trial court did not err in overruling the motion to suppress evidence on the grounds of illegal arrest, search and seizure.
2. The shotgun involved in the robbery was properly admitted into evidence.
3. The denial of the motion for mistrial was not erroneous.
4. Overruling of the motion to dismiss the misdemeanor pistol charges and
the charge to the jury on this subject were proper.
5. The trial court correctly refused to give the charge on guilt or innocence requested by the appellant.
6. The enumeration based on the failure to charge on the unreliability of eyewitness identifications is without merit.
Philip S. Davi, Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Richard E. Hicks, Morris H. Rosenberg, James H. Mobley, Jr., Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, Frank M. Palmour, Asst. Attys. Gen., Atlanta, for appellee.
Jerry Lee Johnson was indicted and tried for the offenses of armed robbery and carrying a concealed and unregistered pistol in the Superior Court of Fulton County. He appeals from the judgments of conviction and sentences of ten years for the armed robbery and one year each on the pistol charges.
1. The appellant contends that the trial court erred in overruling his motion to suppress evidence because evidence used against him was obtained when he was illegally arrested, searched and held in custody without a warrant, probable cause or lawful justification.
The transcript of record reveals that when an Atlanta police officer answered a call at a grocery store he was told by employees there that a black male in his twenties had just left the store in a red Fairlane automobile, jacked up in the rear with its license tag wired on and dangling, occupied by three black males about the same age, one of whom wore a 'flop hat.' The employees told the officer they believed the man had been involved in a robbery of the store two days earlier and also that they recognized the car as having been used in this holdup.
The officer testified that he knew personally that the store had been robbed, so acting on this information he placed a 'look-out' over the police radio for the described car. Relying on this 'look-out,' another police officer stopped a car fitting the description. The appellant was in the back seat. All four men were taken into custody along with a loaded pistol, which was lying on the front seat between the two occupants, and a loaded shotgun with a sawed off butt and barrel, which was protruding from under the front seat.
The appellant urges that this constituted an unlawful arrest because the officer had not obtained a warrant and the corroboration requirements for information obtained from a confidential informant had not been met; that certain lineup evidence should be suppressed because the arrest was illegal; and that the search of the car during which the weapons were found was likewise illegal.
There is no merit in these contentions.
(a) The crucial question is whether the knowledge of the related facts and circumstances gave the police officers here probable cause and reasonable grounds to believe that the appellant had committed an offense. If it did, the arrest, even without a warrant, was legal; the subsequent search of the car and seizure of the loaded weapons were validly made incident to a lawful arrest; and the motion to suppress was properly overruled.
It is the function of the court to determine if the facts upon which the officer acted would warrant a man of reasonable caution to believe that an offense had been committed. See in this connection Draper v. United States, 358 U.S. 307, 310, 79 S.Ct. 329, 3 L.Ed.2d 327; Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142; Peters v. State, 114 Ga.App. 595, 152 S.E.2d 647.
The source of the information here was not a confidential informant, whose reliability needed to be substantiated, but rather the victims of the robbery themselves. However, the fact that an automobile and its occupants exactly matching the detailed description given the officer was spotted within the immediate area shortly thereafter itself serves as corroboration of the information given. Moreover, the reasonable cause necessary to support an arrest does not demand the same strictness of proof as proof of guilt upon the trial. Strauss v. Stynchcombe, 224 Ga. 859, 865, 165 S.E.2d 302.
In our view, the information upon which the officers acted here was sufficient to sustain the arrest of the appellant without a warrant.
(b) Since we have ruled that the appellant's arrest was legal his contention that there was an illegal search of the car in which he was riding cannot be sustained. Moreover, since the weapons were in plain sight no illegal search was involved here.
(c) The appellant's objection to the trial court's failure to suppress certain lineup evidence is likewise invalid.
The transcript of the hearing on the motion to suppress discloses that appellant's counsel withdrew his motion to suppress the identification testimony after the court ruled that the appellant had knowingly and intelligently signed a waiver of lineup. Therefore, any objection to this evidence has been expressly waived, and since the appellant's arrest was lawful the lineup evidence is not the fruit of an illegal arrest as contended.
2. The appellant next urges that the trial court erred in admitting the shotgun into evidence because it was not connected to him, was prejudicial, and had been illegally seized.
This argument cannot be sustained.
The owner of the store robbed testified that the appellant was carrying a pistol and another one of the robbers had a shotgun, which he described; and that the shotgun produced in court 'looks like the exact gun I saw the day of the robbery and at Police Headquarters.' This was the shotgun found in the car with the appellant and his companions when they were apprehended.
Clements v. State, 226 Ga. 66, 172 S.E.2d 600.
The shotgun was properly admitted into evidence and was not prejudicial to the appellant, as contended. For the reasons stated in Division 1(b) above, the search of the car and seizure of the shotgun were not illegal.
3. Because of the rulings made in Divisions 1 and 2 ab...
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