Newsome v. State

• Decision Date: 19 September 1989
• Docket Number: No. A89A1508,A89A1508
• Citation: 386 S.E.2d 887,192 Ga.App. 846
• Parties: NEWSOME v. The STATE.
• Court: Georgia Court of Appeals

Page 887

386 S.E.2d 887

192 Ga.App. 846

NEWSOME v. The STATE.

No. A89A1508.

Court of Appeals of Georgia.

Sept. 19, 1989.

Straughan & Straughan, William T. Straughan, McRae, for appellant.

James L. Wiggins, Dist. Atty., Timothy G. Vaughn, Asst. Dist. Atty., for appellee.

BIRDSONG, Judge.

Appellant Johnny J. Newsome appeals his conviction of three counts of theft by taking and one count of burglary. Appellant contends the trial court erred in failing to dismiss this case on the grounds that appellant was arrested without color of a warrant, and by admitting evidence unlawfully obtained. Held:

1. Appellant's assertion that evidence was erroneously admitted, because it was obtained as a result of an illegal search and seizure conducted without warrant, is without merit. Special Agent Dudley of the GBI testified at trial that appellant was informed he was suspected of theft of John Maloy's 35 h.p. boat motor, advised of his Miranda rights, and then was asked for permission to search his house, and that appellant replied that "we were welcome to search his house." Dudley had identified himself, showed appellant his credentials, and ascertained appellant's identity before requesting permission to search. The police had arrived at appellant's home about 5:00 p.m., but appellant who is age 37, his co-accomplice Andy Mitchell, and their two wives did not arrive until about 7:30 or 8:00 p.m. when it was dark. Special Agent Dudley denied threatening appellant's wife in any manner, but stated that he did inform her that if she made any false statements she would be charged with making "a false statement to [the] police." He never threatened to put her in jail.

Sheriff Walker also testified at trial and corroborated that Dudley had asked appellant's permission to search, and that appellant replied "[s]ure, go ahead and search my house, I don't have anything to hide," or words to that effect. Walker also testified that appellant was "read his rights in his home while he was allowing us to search his home." Walker did not hear Dudley intimidate appellant's wife, and believes that Dudley acted in a professional manner.

" ' "Consent searches are valid (cit.) but where the (S)tate relies upon consent, the burden is upon (it) to demonstrate that the consent was voluntary, and not the result of duress or coercion, express or implied. (Cit.) Voluntariness must be determined from all of the circumstances." ' " Lombardo v. State, 187 Ga.App. 440(1), 370 S.E.2d 503. In considering the legality of a search, this appellate court can consider all relevant evidence of record, wherever located, including that adduced at a suppression hearing before trial and that adduced during trial. Jones v. State, 187 Ga.App. 421, 422-423, 370 S.E.2d 784. Moreover, a valid consent to search eliminates the need for either probable cause or a search warrant. Hunter v. State, 190 Ga.App. 52(1), 378 S.E.2d 338; Lombardo, supra, 187 Ga.App. at 441(3), 370 S.E.2d 503.

We conclude in view of the totality of the circumstances that appellant freely and voluntarily consented to the search. Moreover, we find that appellant's motion to dismiss was, as to those portions pertaining to an alleged illegal search and seizure, in effect a motion to suppress. As such, this motion failed to comply with the requirements of OCGA § 17-5-30 that motions to suppress shall be in writing and state facts showing that the search and seizure were unlawful. See generally, Boatright v. State, 192 Ga.App. 112(8), 385 S.E.2d 298.

2. Appellant's assertion that he was illegally arrested, thereby necessitating dismissal of this case, also is without merit.

An arrest without warrant, under both the United States Constitution, Articles IV and XIV, and the Constitution of Georgia of 1983, Art. I, Sec. I, Par. XIII, " 'is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.' " Wright v. State, 189 Ga.App. 441, 443, ...