Mooney v. State
| Decision Date | 28 March 1979 |
| Docket Number | No. 34225,34225 |
| Citation | 254 S.E.2d 337,243 Ga. 373 |
| Parties | MOONEY v. The STATE. |
| Court | Georgia Supreme Court |
Cook, Noell, Bates & Warnes, Edward D. Tolley, Athens, Joe Salem, Atlanta, for appellant.
Harry N. Gordon, Dist. Atty., B. Thomas Cook, Jr., Asst. Dist. Atty., Arthur K. Bolton, Atty. Gen., Nicholas G. Dumich, Staff Asst. Atty. Gen., for appellee.
Appellant John Henry Mooney was indicted with Elmo Florence for the murder of T. K. Harty. He was tried separately, and was convicted by a jury and sentenced to life imprisonment on May 2, 1978. He brings this appeal.
The trial evidence showed that on August 30, 1977, the body of Harty, the owner of a saloon in Athens, Georgia, was discovered slumped over a desk in his home. He had been shot once in the back of the head, apparently during the preceding evening. Shortly thereafter, one Reinhold, a restaurant-bar owner in Athens, informed police that one Elmo Florence had admitted to Reinhold over drinks that he had been the "hit man" who killed Harty, and that he had been hired to do the killing by John Mooney, appellant, who operated "Somebody's Pizza." Florence had provided a wealth of detail about the killing, which tallied with the actual physical evidence of the crime. Apparently Florence was soliciting from Reinhold additional employment as a paid killer.
A warrant was issued for Mooney, and he was arrested in Atlanta, Georgia, on October 7, 1977. During a police search of his belongings at the jail, some incriminating papers and notes were found in a plastic shopping bag. The notes themselves were introduced at the subsequent trial, and they led to two witnesses, Gatch and Stephen Florence, who testified for the state.
The remaining facts will appear in the discussion of the eight alleged trial errors of which Mooney now seeks review.
Mooney first argues that the seizure of his luggage and numerous police searches of the shopping bag were done without a warrant and without his consent, and were not valid inventory searches. Therefore, he argues, they were illegal under the Georgia and United States Constitutions and further violated Code Ann. § 27-301, and the trial court erred in denying his motion to suppress all the fruits of the searches.
The evidence concerning the arrest and searches showed that Mooney was arrested by Cobb County police with a warrant, in a parking lot of an apartment building where he was standing with Rick Newman, a former college roommate. Mooney was in transit from Europe to his home in Athens and had arrived at Newman's apartment with his luggage. Newman testified that he had not wanted to allow Mooney to enter his apartment, so the two men had placed Mooney's luggage temporarily in Newman's Datsun in the parking lot while they went for a drink.
At the time of Mooney's arrest the two men were 75 or 100 yards away from the Datsun. Mooney later testified at a hearing on his motion to suppress that the fate of his luggage was something that simply did not cross his mind one way or another as he was being taken away. After Mooney was gone, Lt. Moss informed Newman of the penalties for harboring and aiding a fugitive. Newman stated that he did not want to be involved. Aware that Mooney was reported by police radio to have luggage with him, Lt. Moss asked where it was, and was told it was in the Datsun. Newman opened the car door, and he and the officer removed the items. Lt. Moss told Newman that if he did not want any further involvement, police would just take Mooney's things and send them on to jail where Mooney was headed. Newman asked for and received a receipt. Mooney's articles, which we term "the luggage," consisted of a pair of boots, a black leather suitcase, and a green shopping bag. All were placed in a police vehicle.
Lt. Moss testified that he knew Mooney was charged with murder, but did not which murder. His purpose in acquiring the luggage was merely to send it along with the prisoner. Newman testified that he did not "volunteer" to give the luggage to the officer; that Mooney had never specifically asked him to keep it; that he had not wanted to allow Mooney into his apartment and had placed the luggage in the Datsun as a temporary alternative; that he gave officers the bags "under the entire circumstances of the evening" and was not coerced by the officer's remarks about harboring a fugitive.
We must evaluate these facts in light of Mooney's claim that this was an unconsented-to, warrantless search of the car and seizure of the luggage. The state's assertion that Mooney is without standing to object to the seizure of his personal belongings is plainly wrong. Rakas v. Illinois, --- U.S. ----, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).
Initially, we note that the state does not attempt to justify this action as a search and seizure incident to arrest. Therefore, Code § 27-301, argued by Mooney, is inapposite. Similarly, the state makes no claim that Mooney consented to this taking of his personalty. Rather, the state contends that Newman voluntarily turned over the items; that he had the authority to do so; and that the later searches were properly done as an inventory procedure.
We will consider first the correctness of the officer's decision to acquire the luggage. Mooney contends that the police had no "right, duty, or obligation" to take his possessions into safekeeping and thus had no need to perform the subsequent inventory search which revealed damaging evidence. His theory is apparently that the police could merely have left the luggage in Newman's automobile. We cannot agree.
It is well established that a police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve it. They are permitted to take charge of property under broader circumstances than that. In United States v. Ducker, 491 F.2d 1190 (5th Cir. 1974) an inventory search of an automobile was approved after its owner had been arrested for passing counterfeit money, although the automobile was safely parked in a parking lot. Officers chose to take it in because it was packed with items and they feared for it to be left unattended at the lot. That search was approved. In Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), officers arrested an out-of-state police officer and later searched his automobile for his service revolver under the impression that he must have had one with him and that it would be unsafe for the general public to leave it lying around where it might be stolen. That search was not absolutely required, but it was upheld. Accord, United States v. Kelehar, 470 F.2d 176 (5th Cir. 1972).
A case presenting similar facts to those before us was United States v. Gravitt, 484 F.2d 375 (5th Cir. 1973) cert. den., 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1974), in which Florida police arrested men who were traveling. The police expected within a few days to return them to Georgia for criminal proceedings. On one of the men they found, in addition to false identification, a motel key. At the motel they found the room rent had been paid for three days, and the suspects' automobile was in the motel lot. Police seized the car, searched it in performing an inventory, and discovered a small arsenal which was introduced at the suspects' subsequent trial for firearm offenses. The non-necessity for police seizure of that automobile was emphasized by appellants and was rejected by the court: 484 F.2d at 380 n. 5.
We note that there is language in both Dunkum v. State, 138 Ga.App. 321, 226 S.E.2d 133 (1976) and State v. McCranie, 137 Ga.App. 369, 223 S.E.2d 765 (1976) suggesting that perhaps seizure and inventorying of an automobile not involved in an offense against the law may be justified only where the automobile poses some threat to the traveling public, such as impeding the roadway. But in light of our analysis above concerning the permissible scope of the police caretaking and inventorying function, any such inference from Dunkum and McCranie will be mistaken.
Mooney cites on this point State v. Travitz, 140 Ga.App. 351, 231 S.E.2d 127 (1976) and State v. Ludvicek, 147 Ga.App. 784, 250 S.E.2d 503 (1978). Those cases lend him little support, however, because in neither was the owner of the property seized arrested, and in neither was the property in danger of being left with an unwilling bailee.
The analysis above convinces us that the decision of the officer to request the luggage...
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