Luke v. State, 49202

• Decision Date: 25 April 1974
• Docket Number: No. 49202,No. 1,49202,1
• Citation: 131 Ga.App. 799,207 S.E.2d 213
• Parties: George M. LUKE v. The STATE
• Court: Georgia Court of Appeals

Page 213

207 S.E.2d 213

131 Ga.App. 799

George M. LUKE v. The STATE.

No. 49202.

Court of Appeals of Georgia, Division No. 1.

April 25, 1974.

Rehearing Denied May 15, 1974.

Moulton & Carriere, J. Wayne Moulton, Decatur, for appellant.

Lewis R. Slaton, Dist. Atty., Joel M. Feldman, Morris H. Rosenberg, Atlanta, for appellee. Syllabus Opinion by the Court

CLARK, Judge.

Luke, the appellant, is one of two defendants, the other being Cumbie, who were jointly indicted for burglary. They were represented by different counsel and obtained separate trials. Each was convicted. Individual appeals followed. With the single exception of enumerating error on their respective motions to suppress evidence their assignments of error differ. The Cumbie case, Cumbie v. State, 131 Ga.App. 807, 207 S.E.2d 218, is being affirmed contemporaneously with the instant decision on the Luke appeal.

1. The first enumeration of error attacks the court's ruling denying the motion to suppress evidence. Appellant contends that the evidence was 'procured as a result of the illegal arrest of the defendant and subsequent search of defendant's car as obtained' and constituted a violation of his constitutional rights. The hearings on the two individual motions to suppress the evidence were combined and the trial judge entered a single order of denial covering both motions.

As the trial judge's order concisely states the facts as developed at the hearing we quote that portion as follows: 'The Court finds that an Atlanta Police Officer, while on routine patrol on May 8, 1973, at approximately 9:30 to 10:00 o'clock p.m., observed an automobile stopped on the side of a road near a construction site. There were two males in the vicinity of the automobile who were apparently making some adjustments to the trunk of the car. The police officer stopped initially to render some assistance if needed, observed that the two males were dressed in sport clothes rather than work clothes, that there were muddy footsteps from the automobile into the construction work site and that the males had mud on their shoes; that there were in plain view several tool kits in the automobile and other construction material or tools visible protruding from the partially open trunk. The two males appeared to be under the influence of alcohol and without adequate explanation as to their purpose in being at this place of their actions, and the officer, based upon a combination of suspicious circumstances took the two men into custody and confined them in his patrol car. He then made a radio check of the identity of the vehicle and found that the license plate displayed on the vehicle was not the license plate which was supposed to be properly on that vehicle and, therefore, suspected the vehicle of being a stolen vehicle, or the license plate to have been stolen. He then made a search of the vehicle and found another license plate, several other tool boxes in the trunk of the car, along with other construction materials and other items. He also found checks of the construction company in the glove compartment of the vehicle. He further found a rivet gun in the pocket of the person defendant George Michael Luke.'

The order concluded: 'The Court finds that upon consideration of the totality of the circumstances, this officer had probable cause to take these two defendants into custody and make further inquiry, and thereafter to make a search of the vehicle suspected of being stolen and to which the defendants had no proper identification of ownership or registration. This Court finds that the arrest and search and seizure were legal and valid and the motions to suppress filed by and in behalf of each of these defendants is hereby overruled and denied.' (T. 12).

Defendant appeals the denial of his motion to dismiss alleging as error the lack of probable cause for the arrest and search and seizure.

"In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, supra, 338 U.S. (160), at page 175, 69 S.Ct. (1302), at page 1310, 93 L.Ed. 1879. Probable cause exists where 'the facts and circumstances within their (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543, 555, 39 A.L.R. 790.' Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327.

Here the officer on patrol had probable cause to make an arrest without a warrant under Ga.Code Ann. §§ 27-207, 27-211, since, as stated in the trial judge's order, the totality of circumstances justified the apprehension that defendants either were committing an illegal act or were about to escape after having committed the act. Underhill v. State, 129 Ga.App. 65, 198 S.E.2d 703; Anderson v. State, 123 Ga.App. 57, 179 S.E.2d 286; Ker v. California, 374 U.S. 23, 34, 83 S.Ct. 1623, 10 L.Ed.2d 726. Therefore Raif v. State, 109 Ga.App. 354, 136 S.E.2d 169, where the only circumstance was defendant's appearance is inapplicable to the situation sub judice.

'Moreover, if he were not arrested there was a likelihood that the defendant would escape and there would be a failure of justice (cits.).' Williams v. State, 129 Ga.App. 103, 105, 198 S.E.2d 683, 685.

'Where a search of an automobile is made by a police officer without a warrant, the test of its legality is whether the search was reasonable. In applying this test reasonableness is not determined by the hindsight of appellate court judges after weeks of academic deliberation; it is determined by the foresight of the policeman on the scene who must act in the public interest in a very short space of time. The reasonableness of his action must be judged in relation to the circumstances then existing and is in the first instance a question for the trial judge to determine.' Croker v. State, 114 Ga.App. 43(1), 150 S.E.2d 294.

Further 'This court has held that officers are authorized to conduct searches of motor vehicles without first obtaining a warrant under suspicious circumstances. Craft v. State, 124 Ga.App. 57, 58, 183 S.E.2d 37; Register v. State, 124 Ga.App. 136, 137, 183 S.E.2d 68.' Johnson v. State, 126 Ga.App. 93, 94, 189 S.E.2d 900, 902. This is based on the fact that an automobile, being mobile, can be moved quickly out of the locality or jurisdiction. The result in this case if the vehicle had been moved would have prevented the car being traced as it was carrying a stolen tag.

In Campbell v. State, 226 Ga. 883, 888, 178 S.E.2d 257, 260, the court determined that 'the law (does not require) that the officer know the goods to be stolen property at the time they are seized. It is enough that he have probable cause to believe that this is the case.'

Rowland v. State, 117 Ga.App. 577, 161 S.E.2d 422, does not support defendant's position since in the instant case we have determined that the search was based on the existence of circumstances sufficient to justify a finding of probable cause whereas in the Rowland case the search was based solely on the officer's custom of searching stopped vehicles.

As the evidence supports the trial judge's finding of probable cause for the arrest and search and seizure defendant's motion to suppress was properly denied and Enumeration number 1 is without merit.

2. During the course of the trial, evidence was received over objection that after the defendant's arrest he was searched at which time a concealed pistol and a bottle of pills in a sock were found upon his person. Defendant's separate motions for mistrial based on the reception of each item of evidence was also denied. The State contends that the evidence was admissible as a part of the res gestae. But '(W)hen one is on trial charged with the commission of a crime, proof of a distinct, independent, and separate offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the otherer. This is the general rule, but there are some exceptions to it; as when the extraneous crime forms part of the res gestae; or is one of a system of mutually dependent crimes; or is evidence of guilty knowledge; or may bear upon the question of the identity of the accused, or articles connected with the offense; or is evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged; or where it tends to prove malice, intent, motive, or the like, if such an element enters into the offense charged.' Cox v. State, 165 Ga. 145, 139 S.E. 861.

The burglary was committed when unlawful entry was made into a contractor's shack at a construction site at some time between 9 and 10 p.m. Burglary is in general a crime different in nature from those dealing with pills. As to the pistol there was no evidence that this weapon was used in any manner to enter the building. It was in fact found in his underwear. Obviously an unidentified bottle of pills has no connection...