Love v. State

Decision Date11 January 1978
Docket NumberNo. 54561,2,3,Nos. 1,54561,s. 1
Citation144 Ga.App. 728,242 S.E.2d 278
PartiesBruce E. LOVE v. The STATE
CourtGeorgia Court of Appeals

Grogan, Jones, Layfield & Swearingen, Ben B. Philips, Columbus, for appellant.

Robert E. Keller, Dist. Atty., James W. Bradley, Clifford A. Sticher, Asst. Dist. Attys., Jonesboro, for appellee.

SMITH, Judge.

For the reason that the warrantless seizure of drugs from the appellant's automobile and motel room was unreasonable as a matter of law, it was error to deny a motion to suppress the seized evidence, and the judgment of conviction and sentence based on that evidence must be reversed.

Investigator Matthews of the Fulton County District Attorney's office received certain information from a confidential informant over a several day period in September, 1976. Basically, the informant relayed information about two men, boasting about having robbed a drug salesman in Columbus, Ga., and looking for a buyer for the drugs. Matthews testified that he was informed on the morning of September 12, 1976, that the men were traveling in a silver Lincoln Continental Mark IV and were staying in Clayton County at the Century Motel in room 222. Also, the informant supplied a description of one of the men, whom the informant thought to be a fugitive because he "always stayed in the background and always wore, even during the night or dark time, wore sunglasses."

Investigator Matthews had been relaying his information to Inspector Angel, supervisor of the GBI Fugitive Squad, who had independently received information from his own informant telling him that an Alabama prison escapee named Sammy McQuirk was in the Atlanta area along with two other fugitives, Jerry Miller and Johnny Lowe. Angel's informant believed that McQuirk was trying to sell a large quantity of drugs. Angel had arrested McQuirk two years earlier and remembered his physical appearance. The description relayed to him via Investigator Matthews led Angel to conclude that both Matthews and he, Angel, from their respective confidential informants, were receiving information about the same man, McQuirk.

Upon receiving word from Matthews that the two men were at the Century Motel, Angel dispatched several agents from the fugitive squad to the area, expecting to arrest McQuirk, the Alabama fugitive. About two hours later, Angel arrived on the scene and was informed that the described Lincoln Continental had been located, and that an individual had exited the motel, entered the automobile, and returned to the motel. Agents checked the automobile, but found it locked. After determining that the occupants of room 222, who registered in the name of Bruce Love, had indicated an intention to remain in the room another night, Angel began to arrange a stake-out of the room, in anticipation of arresting McQuirk when he exited. For their safety, occupants of nearby rooms were evacuated. Shortly thereafter, Angel and two other agents, apparently while moving to stake-out posts, were passing immediately in front of the door to room 222 when it opened and two men walked out. Within seconds, six law enforcement officers, at least three of them brandishing pump-action, buckshot loaded, riot shotguns, confronted the two men, one of whom was the appellant Bruce Love and neither of whom was Alabama fugitive McQuirk, whom Angel would have recognized on sight.

The appellant and his companion, hands up as ordered, were forced at gunpoint back into the room, against a wall, where they were searched. Wallets, personal papers, and keys, but no weapons, were removed from their persons. Inspector Angel announced that he was looking for fugitives, and the two captives identified themselves as Bruce Love and Eugene Padgett, identities which comported fully with the driver's licenses and personal papers seized from the men.

An agent who had conducted surveillance earlier that morning noted that Love was the person who had visited the parked Lincoln. Angel asked Love about the car and Love denied having any knowledge of it. Angel asked him about a set of Ford product keys which were seized from Love's pocket during the search; Love denied having any knowledge of them. Angel then asked whether there was any objection to seeing whether the keys fit the Lincoln, and Love voiced no objection.

Agent Meeks left the room with the keys, ostensibly to see if they "fit" the Lincoln and unlocked and searched the trunk, then the passenger compartment, of the Lincoln. Inside the trunk, he found a large quantity of controlled drugs. On cross examination, Meeks frankly admitted that his purpose in going to the car was to search it: "Q. Now, Agent Meeks, your purpose when you went down there with this key, you were to search the trunk of that automobile, wasn't it? A. Yes, sir, to look in the car, yes, sir." Meeks returned to room 222 and communicated his discovery to Angel who then "officially arrested" Love and Padgett. The room then was searched and further contraband was located.

I. Motion to Dismiss the Appeal.

A. The State's motion to dismiss the appeal is denied. The appellant filed a motion for new trial, which was properly denied by the trial court following disclosure that the appellant had escaped and was without the jurisdiction of the court. Huffaker v. State, 122 Ga.App. 773, 775, 178 S.E.2d 718 (1970). Following the dismissal of the motion, the appellant was returned to prison, and the appeal to this court was filed within thirty days of the order dismissing the motion. The facts that the motion for new trial was dismissed, and that the appeal was not filed within thirty days of the judgment of sentence and conviction, do not require dismissal of the appeal. So long as the notice of appeal "is filed within 30 days following the entry of the order granting, overruling, or otherwise finally disposing of the motion" for new trial, the appeal is timely. (Emphasis supplied.) Appellate Practice Act § 5 (Ga.L.1965, pp. 18, 21; Ga.L.1966, pp. 493, 496; Code Ann. § 6-803); Harrison v. Harrison, 229 Ga. 692, 194 S.E.2d 87 (1972); Dodson v. Dodson, 231 Ga. 789, 204 S.E.2d 109 (1974). Dismissal of the motion is such an order "finally disposing" of the motion.

B. Nor, as the State contends, did dismissal of the motion for new trial establish the "law of the case" as to those allegations of error raised in the motion. This court, fairly recently, has held that abandonment of a motion for new trial establishes as the law of the case all of the grounds of the motion, and none of the grounds of the motion can later be considered on appeal. Ruff v. State, 132 Ga.App. 568(1), 208 S.E.2d 581 (1974). However, the Ruff decision was based on the holding in Munn v. Kelliam, 228 Ga. 395, 185 S.E.2d 766 (1971). When Munn was again relied upon, subsequent to Ruff, in Gold Kist, Inc. v. Stokes, 135 Ga.App. 382, 217 S.E.2d 352 (1975), establishing as the law of that case the grounds contained in the dismissed motion for new trial, the Supreme Court granted certiorari and reversed. Gold Kist, Inc. v. Stokes, 235 Ga. 643, 221 S.E.2d 49 (1975). The Supreme Court relied upon Harrison v. Harrison, 229 Ga. 692, 194 S.E.2d 87 (1972) and Checker Cab Co. v. Fedor, 134 Ga.App. 28, 29, 213 S.E.2d 485 (1975), to conclude that the law of the case was not established by the dismissal of a motion for new trial. Accordingly, we are required to reach the merits of the appellant's enumerations of error.

II. The Search and Seizure.

The facts of this case, and the state's attempt to fit them within an exception to the warrant requirement, compel the writer once again to reiterate the admonition of Mr. Justice Stewart in Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1970), that "the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well delineated exceptions.' The exceptions are 'jealously and carefully drawn,' and there must be 'a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.' " Hatcher v. State, 141 Ga.App. 756, 758, 234 S.E.2d 388 (1977) (Judge Smith dissenting) and Allen v. State, 140 Ga.App. 828, 839, 232 S.E.2d 250 (1976) (Judge Smith dissenting). When these guidelines are applied to the facts of this case, the non-applicability of the recognized warrant requirement exceptions becomes apparent.

First, the record of evidence developed at the hearing on the motion to suppress and at trial, and the state's brief, do not reveal even the most oblique or tangential attempts to fit the search here within the exceptions known as "hot pursuit," "stop and frisk," or "plain view." Indeed, the facts are not remotely suggestive of any of these doctrines, so their applicability here will not be further considered.

The facts vaguely suggest the scenario of a search incident to a lawful arrest, so this possibility will be considered briefly. Likewise, at the hearing on the motion to suppress, the state emphasized evidence tending to show a consent to search the automobile. The contention is a weak one, and since it is not argued in the state's brief, it, too, will be considered only briefly.

The primary thrust of the state's argument is an attempt to fit the facts here within the Carroll doctrine, or so-called "automobile exception," named for Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). The doctrine, as explicated, requires the coalescence of probable cause to search and exigent circumstances requiring an immediate search. The discussion below will show that the state has not met its burden of establishing these components; thus the Carroll doctrine, too, is inapplicable.

A. Search incident to lawful arrest. Even assuming...

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