Mitchell v. State, 71542
| Decision Date | 11 March 1986 |
| Docket Number | No. 71542,71542 |
| Parties | MITCHELL v. The STATE. |
| Court | Georgia Court of Appeals |
Albert F. Burkhalter, Jr., Rome, for appellant.
Stephen F. Lanier, Dist. Atty., Harold Chambers, Asst. Dist. Atty., for appellee.
Indicted for aggravated assault with a deadly weapon, aggravated assault with intent to rape, armed robbery, and possession of a knife during the commission of a felony, appellant was acquitted of the armed robbery charge and convicted of the other three. He enumerates as error the denial of his motions to suppress evidence seized in searches of his house and car and to suppress the victim's identification testimony.
1. Appellant's first argument in support of his motion to suppress evidence seized in the two searches is that he was illegally arrested. The officers who brought appellant to the police station testified that they had been requested by the officer who was investigating the crimes to ask appellant to come talk with her. They testified that they saw appellant walking in downtown Rome, stopped their car, asked appellant to come talk to the investigating officer, and took him to the police station when he agreed to come with them. There was no evidence that the officers required appellant to join them or that they exhibited any force to coerce his cooperation.
An arrest occurs only when the liberty of a citizen is restrained by physical force or show of authority. Bothwell v. State, 250 Ga. 573(2), 300 S.E.2d 126 (1983). The officer who questioned appellant testified that such restraint did not exist until after the victim had come to the police station and identified appellant. Until then, the officer swore, appellant had been free to go and had been told that he was not under arrest. After that identification, the investigating officer had probable cause to arrest since the facts and circumstances within her knowledge, of which she had reasonably trustworthy information, were sufficient to warrant a prudent person to believe that appellant had committed the offenses. See Flowers v. State, 252 Ga. 476 (1A), 314 S.E.2d 206 (1984). Since the evidence here authorized the trial court to determine that there had been no illegal arrest, and the determinations of a trial court in ruling on a motion to suppress will be upheld if supported by evidence (Voight v. State, 169 Ga.App. 653, 314 S.E.2d 487 (1984)), we find no error in the trial court's denial of appellant's motions on that ground.
2. After appellant had been placed under arrest, he executed a consent form permitting the search of his house. He now contends that the consent was void because he was coerced into signing it. A consent given while under arrest is not per se void as being coerced. See, e.g., Cantrell v. State, 237 Ga. 851, 230 S.E.2d 287 (1976). The testimony of the police officer who secured the consent form and the testimony of an officer who witnessed it were consistent on the issue of coercion. They both testified that appellant was cooperative and stated repeatedly that he had nothing to hide. McShan v. State, 155 Ga.App. 518(3), 271 S.E.2d 659 (1980).
3. Appellant's car was also searched, yielding a knife which was identified by the victim as being similar to the knife used in the assault on her. Although the State attempted at trial and on appeal to justify that search as an inventory pursuant to impoundment of the car, the record does not support that argument. There was no evidence of any connection between the car and appellant's arrest, no evidence that the car was illegally parked or was a hazard to traffic, or that appellant was consulted regarding alternate disposition of the vehicle. In short, there was no showing that the impoundment of the car was reasonably necessary. See Strobhert v. State, 165 Ga.App. 515, 301 S.E.2d 681 (1983); State v. Darabaris, 159 Ga.App. 121, 282 S.E.2d 744 (1981).
There does appear in the record, however, another basis for the trial court's finding that the search of appellant's car was legal. The arresting officer testified that she asked appellant for permission to search the car at the same time she asked for permission to search his house and that appellant consented to the searches and gave her his keys. That testimony, considered with the testimony of two other officers that appellant was consistently cooperative and repeatedly stated that he had nothing to hide, was sufficient to support a finding that appellant consented to the search of his car. There being evidence to support the trial court's denial of the motion to suppress, this court will not disturb that decision. Voight, supra.
4. Appellant has also enumerated as error the trial court's denial of his motion to...
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