Raif v. State

• Decision Date: 25 February 1964
• Docket Number: Nos. 1,40187,Nos. 40186,3,2,s. 40186,s. 1
• Citation: 109 Ga.App. 354,136 S.E.2d 169
• Parties: Marion RAIF v. The STATE. John O. LUCK v. The STATE
• Court: Georgia Court of Appeals

Page 169

136 S.E.2d 169

109 Ga.App. 354

Marion RAIF v. The STATE.

John O. LUCK v. The STATE.

Nos. 40186, 40187.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 25, 1964.

Rehearing Denied March 16, 1964.

Syllabus by the Court

'Evidence of guilt which the defendant, either directly or indirectly, is compelled to disclose by an unlawful search and seizure of his person under illegal arrest, is not admissible in a criminal prosecution of the person thus illegally arrested.' Scott v. State, 14 Ga.App. 806(4), 82 S.E. 376.

The defendants were arrested at approximately 10:30 a. m., on November 19, 1961. Later, it was discovered that a burglary had taken place and the defendants were indicted and convicted of such burglary. Their amended motions for new trials were overruled and error is now assigned on such adverse judgments in their separate writs of error. The record shows the following facts leading up to the arrest of the defendants and the discovery of evidence objected to on the trial of the cases as being inadmissible on the same grounds relied upon in the case of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

At approximately 8:30 a. m. on a rainy Sunday morning, November 19, 1961, a police officer of the City of Newnan, Georgia (Officer Morris), observed a stranger (later identified as Ronald E. Smith, a co-indictee of the defendants), standing on the west side of Greenville Street, in the City of Newnan, directly across from a shopping center. Checking this same area approximately 15 minutes later he noticed that Smith had moved across the street to a spot approximately 15 feet from the corner of the shopping center near a large boxwood tree.

At approximately 9 a. m. the police received a report from a Mr. Powell that he had observed a car which he did not recognize parked in front of his dwelling about 2 blocks south of the shopping center. Upon receipt of this report other city police pulled the car in 'for checking.'

At 10:25 a. m., while continuing to cruise the shopping center area police officer Morris and another officer spotted two other strangers, later identified as Marion Raif and John Oscar Luck, on Turner Street at a railroad crossing about four hundred or five hundred yards south of the shopping center and walking in the driection of the shopping center. These officers observed that the clothing on the left arm of each man was wet almost to the shoulder. At this point Raif and Luck were arrested without a warrant and taken to the police station where they were questioned by the police chief. No evidence was introduced that they committed any crime in the presence of the officers or that the officers had any grounds, other than as set forth above, to suspect that they had committed a felony.

Some two and one-half hours later the police learned that a store in the shopping center had been burglarized and the safe looted of some $3,000. Raif and Luck, together with Smith, were indicted for this crime and connected to the event on the trial mainly by evidence obtained from their persons after they were arrested. Such evidence coming from their clothes which they removed under the following circumstances according to the testimony of the police officer who obtained such clothing from them. 'I had those men in my custody at the county jail. I asked them to remove the clothes. I said, 'Remove your clothes so I can have them checked.' They did not object. They pulled them off at my command. If they hadn't taken them off, I would have left them on. They did not tell me to keep the clothes. I did not put any more shoes and socks on them. I gave them coveralls to wear, while they were staying in jail. I couldn't say whether they had any shoes to wear down there. I didn't see them with any shoes and socks. I did not give the clothes back to them. I gave them to Chief Brown.' On defendant referred to the manner in which the police obtained the clothes in his statement as follows: 'As far as the clothing they taken them from us. I didn't give it to them voluntary to nobody. Whenever they asked me for them we give them the clothing. I don't know why what they wanted for them [sic].'

E. W. Fleming, Hogansville, James E. Weldon, LaGrange, for plaintiffs in error.

Eugene Cook, Atty. Gen., Albert Sidney Johnson, Asst. Atty. Gen., Atlanta, Wright Lipford, Sol. Gen., Newnan, for defendant in error.

NICHOLS, Presiding Judge.

1. These cases were tried under the law enunciated in Winston v. State, 79 Ga.App. 711(2a), 54 S.E.2d 354, and the cases there cited which held: 'Although evidence against a defendant in a criminal case may be obtained by peace officers in the course of an unlawful, unwarranted, unreasonable and reprehensible search of the home of the defendant, in the course of a flagrant violation of the Fourth Amendment of the Federal Constitution and Article 1, Section 1, Paragraph 16 of the Constitution of the State of Georgia, this does not affect the admissibility of the evidence thus obtained. Williams v. State, 100 Ga. 511(1), 28 S.E. 624, 39 L.R.A. 269.'

Judge Townsend, in that case, recognized the effect of such decisions and, speaking for himself and not for the court, said: 'These decisions have had the effect of making but an empty shell of what was intended by the framers of these great guaranties of liberty to be the living seed of freedom. The Bills of Rights were ordained and established to protect the citizen against his public officers. A part of the first provision of the Constitution of the State of Georgia Article 1, Section 1, Paragraph 1 provides as follows: 'Public officers are the trustees and servants of the people, and at all times, amenable to them.' The foregoing decisions of our Supreme Court, coupled with the law not in conflict therewith, say in effect to the peace officers of this State, 'You shall not make an unreasonable search and seizure of the home of a citizen, because his home is his castle. The breaking down of his door is a trespass for which you are responsible both civilly and criminally. An unlawful search and seizure by you amounts to a violation of the most sacred rights given under our organic law. However, if you do make such a search, bring the evidence you thus obtained into a court of justice, and it will be given the same consideration as evidence honorably obtained.''

At the time the Winston case and other similar cases were decided the decisions of the U. S. Supreme Court permitted each State to determine if such illegally obtained evidence was admissible in the courts of that State. See Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. And following such decisions this court in Winston and similar cases followed the decisions of the Supreme Court of Georgia. Since that time the U. S. Supreme Court has repudiated its decision in the Wolf case and in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, held that evidence obtained as a result of an illegal search and seizure is not admissible in either Federal or State courts. See also Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171. Thus, under such decision evidence obtained under an illegal arrest is not admissible in state courts. In Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, it was decided that evidence obtained in connection with a legal arrest was admissible although obtained from the defendant's home without a search warrant and although the arrest was made without a warrant. The officer there had reasonable grounds to believe and offense was being committed and such case is of course distinguishable from the present case where there was no evidence that the defendants were violating any law or municipal ordinance at the time of the arrest, no evidence of flight, and no evidence to authorize the arresting officer to arrest the defendants because there was likely to be a failure of justice if the arrest was not made. See Code § 27-207. The arresting officers, according to the evidence, did not know of the particular crime having been committed and there was no evidence that such arrests were made because the officers had reasonable grounds to suspect that they had committed a felony. Mere suspicion that some crime, which would include a misdemeanor, may have been committed is insufficient to authorize an arrest without a warrant, and Code Ann. § 27-212 which requires that when an arrest shall be made without a warrant the person making the arrest shall without delay convey the offender before the most convenient officer authorized to receive an affidavit and issue a warrant (and that no such imprisonment shall be legal beyond 48 hours), presupposes a legal arrest without a warrant and such Code section cannot be used as a basis for legitimatizing an otherwise illegal arrest. There is no authority in Georgia under which a citizen may be arrested without a warrant and held for investigation to determine if he has committed some crime merely because the person making the arrest has a suspicion that the person arrested may have committed some then unknown crime.

The arrests were illegal and if the evidence obtained after such illegal arrests from the defendants was not voluntarily given then, under the Mapp case, supra, such evidence being the fruits of an illegal search and seizure of the persons, was inadmissible. The police officers, who obtained such evidence, testified they merely asked the prisoners for the evidence and they gave it to them. It is contended that such evidence was freely and voluntarily furnished by the defendants and under such circumstances was admissible. In reply to this contention it is only necessary to refer to the language of Justice Lumpkin in Chattahoochee Brick Company v. Braswell, 92 Ga. 631, 634, 18 S.E. 1015: 'The plaintiff was a convict, and, according to the evidence, his movements were absolutely controlled and directed by a guard, or 'boss,' whose orders he was...