State v. Roberson, 65292

• Decision Date: 25 February 1983
• Docket Number: No. 65292,65292
• Citation: 165 Ga.App. 727,302 S.E.2d 591
• Court: Georgia Court of Appeals
• Parties: The STATE v. ROBERSON.

Page 591

302 S.E.2d 591

165 Ga.App. 727

The STATE v. ROBERSON.

No. 65292.

Court of Appeals of Georgia.

Feb. 25, 1983.

Rehearing Denied March 10, 1983.

Willis B. Sparks III, Dist. Atty., Vernon R. Beinke, Thomas J. Matthews, Asst. Dist. Attys., for appellant.

Russell M. Boston, Macon, for appellee.

CARLEY, Judge.

The state appeals from the grant of appellee's motion to suppress evidence.

The facts are undisputed and are as follows: Police officers set up a road block for purposes of conducting a routine driver's license check. One of the automobiles stopped was being driven by Homer Robinson. Appellee, Taft Roberson, was a passenger in Mr. Robinson's car. The officer asked for and received Mr. Robinson's driver's license. Nothing was out of order in that regard. However, the officer recognized appellee as being one of two Roberson brothers, either Taft or Math. The officer also knew that Math Roberson had escaped from jail at some previous time, but did not know whether Math had been captured or was still at large. To establish appellee's identity, the officer asked him whether he was Taft or Math Roberson. Appellee responded that his name was "Ronnie." Mr. Robinson then corroborated appellee's identity as "Ronnie." However, the officer knew that appellee's name was not Ronnie, but that it was either Taft or Math Roberson. Acting on the knowledge that he had been told an untruth concerning appellee's name, the officer arrested Mr. Robinson and appellee. A consequent search of appellee and an inventory of the car revealed controlled substances, diazepam and marijuana. It was these controlled substances which were the basis for appellee's subsequent indictment and, based upon the assertion that his arrest was illegal, the evidence which appellee successfully moved to suppress.

1. It is clear that the original detention of the automobile and of appellee effectuated by the roadblock was valid. State v. Swift, 232 Ga. 535, 207 S.E.2d 459 (1974). The issue appears to be whether the officer, after determining that Mr. Robinson's driver's license was in order, was further authorized to detain appellee, the passenger, and to ask his name. Appellee asserts in his brief that "[t]he question which must be answered in this case is as follows: Under the facts of this case did the police officer act in the lawful discharge of his duty when he interrogated appellee concerning his identity so that the police officer was in a position to arrest him for violating [OCGA § 16-10-25 (Code Ann. § 26-2506) ] and conduct a search as an incident thereto?" Appellee takes the position that, under the circumstances, the officer was not authorized to ask his name and that, when the officer did so, he consequently was not in the "lawful discharge of his official duties..." OCGA § 16-10-25 (Code Ann. § 26-2506). It being no crime to lie to an officer when he is not lawfully discharging his official duties, appellee contends that his arrest and the ensuing search were illegal. The trial court agreed and sustained appellee's motion to suppress in an order holding that "[t]he questioning of [appellee] was unreasonable and violative of his Fourth and Fourteenth Amendment rights under the United States Constitution and similar provisions in the Georgia Constitution ... and statutory provisions contained in [OCGA §§ 17-5-1 and 17-5-30 (Code Ann. § 27-301 and 27-313) ]. In view of the facts together with rational inferences drawn therefrom, the intrusion was not reasonably warranted."

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) is "the progenitor of the doctrine that a police officer may make 'an intrusion short of arrest' where he has 'specific and articulable facts' which reasonably warrant such intrusion. Thus, the individual's 'freedom to use public highways' is circumscribed by the state's police power when the officer has 'specific and articulable facts' which warrant a stop of a vehicle to investigate the circumstances which provoke a reasonable and founded suspicion. [Cit.] ... Terry recognized it could be the essence of good law enforcement practice to adopt an intermediate response by a 'brief stop' of the suspicious person 'to maintain the status quo momentarily, while obtaining more information' to confirm or dispel the information received. [Cit.]" Radowick v. State, 145 Ga.App. 231, 233, 244 S.E.2d 346 (1978).

The application of the above stated legal principles to the facts of the instant case clearly demonstrates that, based upon his personal knowledge concerning the escape of Math Roberson and his recognition of appellee as being either Math or Math's brother, Taft, the officer had an "articulable suspicion" that the passenger might be an escaped convict. See generally Reese v. State, 145 Ga.App. 453(1), 243 S.E.2d 650 (1978); State v. High, 145 Ga.App. 772, 773(2), 244 S.E.2d 888; Starr v. State, 159 Ga.App. 386, 283 S.E.2d 630 (1981). Compare Holtzendorf v. State, 125 Ga.App. 747, 188 S.E.2d 879 (1972); Hill v. State, 140 Ga.App. 121, 230 S.E.2d 336 (1976); Brooks v. State, 144 Ga.App. 97, 240 S.E.2d 593 (1977). "The officer was aware that a crime had been committed and, based upon information supplied to him, had a 'founded suspicion' that [appellee] might be involved. [Cits.]" Watson v. State, 159 Ga.App. 618, 619, 284 S.E.2d 636 (1981). This articulable suspicion, short of probable cause to arrest appellee as being the escaped convict, authorized a brief detention " 'to investigate the circumstances which provoke a reasonable and founded suspicion' on the part of police. ' "[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." [Cit.] ...' [Cit.]" State v. High, 145 Ga.App. at 774, 244 S.E.2d 888, supra.

Appellee asserts that rather than asking his name, it would have been more "reasonable" and less intrusive for the officer to act on his suspicions by radioing police headquarters in order to determine if ...