State v. McBride, S90A1289

• Citation: 401 S.E.2d 484,261 Ga. 60
• Decision Date: 18 February 1991
• Docket Number: No. S90A1289,S90A1289
• Parties: The STATE v. McBRIDE, et al.
• Court: Georgia Supreme Court

Page 484

401 S.E.2d 484

261 Ga. 60

The STATE v. McBRIDE, et al.

No. S90A1289.

Supreme Court of Georgia.

Feb. 18, 1991.

Reconsideration Denied March 27, 1991.

Michael C. Eubanks, Dist. Atty., Richard E. Thomas, Asst. Dist. Atty., Augusta, Michael J. Bowers, Atty. Gen., Atlanta, for State.

Sam B. Sibley, Jr., B.H. Barton, Augusta, for McBride, et al.

Benjamin A. Jackson, Augusta, Atty. Register.

CLARKE, Chief Justice.

The three defendants in this case were arrested and charged with two counts of felony murder, aggravated assault, and conspiracy to commit armed robbery. The trial court granted the defendants' motion to suppress certain physical evidence as well as the defendants' post-arrest statements, and the state appeals.

At the time of the crimes defendant Chris McBride was 16; defendant Phillip McBride was 15; and defendant Alvin Jackson was 17.

A murder and attempted armed robbery took place at a convenience store in Richmond County. An eyewitness to the crime described the sole assailant as a small, black, male teenager wearing a dark blue handkerchief across his face. On the evening of the crimes a witness who lived near the convenience store observed three black, male teenagers in her front yard. One of them ran off toward the convenience store, and came back a short time later stating to his two companions, either "I got it," or "I did it." The boys then ran in the direction of Fleming apartments where defendant Chris McBride lives. This witness did not recognize any of the three teenagers.

Police officers began making inquiries at the local high school the following day, and interviewed Chris McBride in the principal's office upon learning that he owned a handgun. Chris McBride initially denied owning a gun, but later admitted he had one at home which he kept concealed from his mother. The officer asked Chris if he could take the gun and "test" it to determine whether it had been "involved in any crimes." Chris agreed and an assistant principal telephoned Chris's mother to inform her that the officer was bringing Chris home. Upon their arrival the officer told Mrs. McBride about the gun, and stated that Chris had agreed to allow him to test the gun. Mrs. McBride became upset upon learning that her son owned a gun, and told the officer he could keep the gun because she did not want it in her home. Both Chris and Mrs. McBride then signed a property inventory receipt form on which there was handwritten authorization for the officer to take the gun.

While interviewing at the high school the officer spoke to defendants Phillip McBride and Alvin Jackson, both of whom stated that they were with Chris McBride at a local restaurant at the time the crimes were committed. All three defendants denied any involvement in the crimes. In another interview a student informed police that Chris McBride always wore a blue bandanna tied around his leg.

Ballistics tests indicated that the gun Chris McBride gave to police was the one used to kill the victim in question. Six police officers then went to the high school and arrested the three defendants. An arrest warrant had been obtained from the Juvenile Court for Chris McBride, but the state concedes that this warrant is invalid. No arrest warrants were obtained for the other two defendants.

Prior to receiving Miranda warnings defendant Alvin Jackson allegedly made a spontaneous statement that Phillip McBride, and not Chris McBride, had shot the victim. When confronted with this information Chris McBride, who had received Miranda warnings, implicated Phillip in the crime. Phillip subsequently confessed to the crimes after receiving Miranda warnings.

1. The trial court granted Chris McBride's motion to suppress the gun, finding that there was no probable cause to execute the warrantless search. The trial court further concluded that there was no consent to the search.

However, we find that both Chris McBride and his mother did give valid consent to the search and seizure of the gun, thus eliminating the need for either a warrant or a showing of probable cause. Dean v. State, 250 Ga. 77(2)(a), 295 S.E.2d 306 (1982). The record shows that Mrs. McBride voluntarily consented to allow the officer to take the gun, and even asked that he not return it. That her consent may have occurred after the officer seized the gun does not render this search invalid. State v. Sutton, 258 Ga. 382, 369 S.E.2d 249 (1988).

The courts determine the voluntariness of Chris McBride's consent by examining the "totality of the circumstances," including the age of the accused, his education and intelligence, the length of detention, whether he was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of these factors. Schneckloth v. Bustamonte, 412 U.S. 218, 229, 93 S.Ct. 2041, 2048, 36 L.Ed.2d 854 (1973); Id. 250 Ga. at 80, 295 S.E.2d 306. In this case Chris McBride was a few days away from his seventeenth birthday and was in the tenth grade of high school. He was interviewed by the officer in question three times in the presence of an assistant principal, with each interview lasting no longer than seven minutes. He was not under arrest at the time and was not advised of his constitutional rights. There is no evidence to show physical punishment and no evidence of any psychological impact of these factors. The only evidence in the record affirmatively shows that Chris voluntarily agreed to allow the officer to take his gun and test it. To hold otherwise is clearly erroneous.

2. The trial court concluded that the warrantless arrests of Chris McBride, age 16, Phillip McBride, age 15, and Alvin Jackson, age 17, were unlawful because there was no probable cause to support them. The trial court further found that certain violations of the Juvenile Code, OCGA § 15-11-17 et seq. rendered the arrests of Chris and Phillip unlawful. The trial court therefore concluded that all of the post-arrest statements made by the defendants must be excluded under the rationale of Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1978).

a) We hold that there was probable cause to arrest Chris McBride for the crimes in question. The assailant was described by an eyewitness as wearing a blue handkerchief across his face. A blue bandanna was subsequently found behind the convenience store where the crimes occurred. Another student informed police officers that Chris always wore a blue bandanna tied around his leg. Further, ballistics testing showed that the gun Chris gave to the police was the weapon used to shoot the victim. These facts provided sufficient probable cause to justify Chris's arrest.

We further hold that there was probable cause to arrest Phillip McBride and Alvin Jackson. In interviews with police prior to their arrests, both Phillip and Alvin stated they had been with Chris at a local restaurant at the time the crimes were committed. A witness told police that she observed three young black men, approximately the ages of the defendants in question, in her yard shortly before the shooting. One of them left the group and ran to the convenience store. He returned a short time later, stating either, "I've got it," or "I did it." The three then ran in the direction of Chris McBride's home. These facts, considered together, established probable cause to support the arrests of Alvin Jackson and Phillip McBride.

b) It is undisputed that the three defendants were arrested, without warrants, at the high school. Compare OCGA §§ 15-11-17(a)(2) and (b). They were immediately taken to police headquarters and interrogated individually. Chris and Phillip were each interrogated in the presence of a juvenile court officer.

The trial court found that with regard to Chris McBride and Phillip McBride, the police violated OCGA § 15-11-19(a)(4) in that they failed to take the juveniles immediately before the superior court. The trial court also found that the officers violated OCGA § 15-11-19(c) in that they failed to contact the parents of the juveniles. Additionally, the undisputed evidence shows that the officers refused to allow Phillip McBride to speak to a family member who contacted the police station on Phillip's behalf.

While we do not approve of the police tactics in this case, this court has, in substantially similar circumstances, refused to apply a per se exclusionary rule to incriminatory statements for such violations of the Juvenile Code. Marshall v. State, 248 Ga. 227, 282 S.E.2d 301 (1981).

Rather, this court has held that the issue to be considered is whether there was a knowing and intelligent waiver by the juvenile of his constitutional rights in making the incriminating statements. Riley v. State, 237 Ga. 124, 128, 226 S.E.2d 922 (1976); Marshall, supra, 248 Ga. at 228, 282 S.E.2d 301. In determining this issue nine factors are to be considered. Id.

1) Age of the accused. At the time of questioning Chris McBride was 16 and Phillip McBride was 15. Age alone is not a determinative factor, and our courts have approved statements from defendants of even younger years. See Williams v. State, 238 Ga. 298, 232 S.E.2d 535 (1977) (14 years); C.R.T. v. State, 148 Ga.App. 628, 252 S.E.2d 58 (1979) (11 years) and Marshall v. State, supra, (14 years).

2) Education of the accused. The record shows only that both juveniles were in the 10th grade of high school.

3) Knowledge of the accused as to the substance of the charge and nature of his rights to consult with an attorney. The record indicates that the substance of the charges was adequately explained to both juveniles. Neither Chris nor Phillip testified at the hearing on the motion to suppress. The undisputed evidence presented at that hearing was that both were advised of the nature of the charges against them and understood their constitutional rights. Both juveniles...