Traylor v. State

• Decision Date: 20 September 1972
• Docket Number: 3,2,No. 47152,Nos. 1,47152,s. 1
• Citation: 193 S.E.2d 876,127 Ga.App. 409
• Parties: Alonzo TRAYLOR v. The STATE
• Court: Georgia Court of Appeals

Page 876

193 S.E.2d 876

127 Ga.App. 409

Alonzo TRAYLOR v. The STATE.

No. 47152.

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

Sept. 20, 1972.

Rehearing Denied Oct. 25, 1972.

Glenn Zell, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joel M. Feldman, Carter Goode, Atlanta, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

The defendant was indicted, tried and convicted of the possession of heroin. Motion for new trial was duly filed and amended and thereafter overruled. The appeal is from this final judgment. Held:

1. The main contention of the defendant involves the denial of his motion to suppress the evidence because it was as illegal search and seizure, there being no probable cause therefor, and the same was in violation of the 4th and 14th Amendments of the United States Constitution. An Atlanta police officer testified that he and two other police officers were aware that there had been burglaries of a small grocery store in a small shopping center; that it had been reported to him by informants that narcotics and drugs were being used in the parking lot of the shopping center and that crap games go on there quite frequently; that he and the two other police officers drove up to this parking lot at 2:15 a.m. on August 11, 1971, 'to try to break up the crap game.' There were approximately 15 males in the area. One of the officers announced over a public address system that they were all under arrest. A crap game was going on in one corner, and the occupants began to run in all directions. This defendant, who had been leaning against an automobile, got into a Cadillac automobile and fled the scene. The officer stopped him on the street, again advised him he was under arrest for 'prowling,' and ordered him out of the automobile, at which time they noticed him taking white paper like 'plastic' out of his pockets and placing it under the arm rest of the car. Later, packages of heroin were found under the arm rest.

Whether or not there was sufficient evidence to convict the accused of prowling or gambling (Code Ann. § 27-313; Ga.L.1966, pp. 567, 571) requires that in any hearing of a motion to suppress the evidence of an illegal search and seizure, the burden of proving that the same was lawful shall be on the State. On three separate occasions the officer advised defendant he was under arrest for 'prowling,' and defendant chose to ignore or defy the arrest, and left the parking area. He was forcibly stopped on the street, and taken into custody for 'prowling.' The defendant had the right to leave, and to ignore or defy the arrest, if said arrest was illegal. Griffin v. State, 183 Ga. 775, 779, 190 S.E. 2; Mullis v. State, 196 Ga. 569, 580, 27 S.E.2d 91. It was therefore incumbent on the State to show that defendant was legally arrested for 'prowling,' by introducing an exemplified copy of the city ordinance on the subject, if such existed. Failure to introduce such evidence resulted in showing that the arrest was illegal, and the officer was thereafter without any authority to seize the packages of heroin he found under the arm rest while holding the defendant under an illegal arrest.

In the case of Wong Sun v. United States, 371 U.S. 471(1-4) and at 484-487, 83 S.Ct. 407, 9 L.Ed.2d 441 the United States Supreme Court clearly and concisely holds that the fruits of an illegal arrest are not admissible in evidence against a defendant, and a conviction which is based upon evidence thus illegally admitted must be reversed and set aside. See also Collins v. United States, 5 Cir., 289 F.2d 129, 130 and cits. Of course, this court is absolutely bound by the decisions of the United States Supreme Court on Federal questions, which were invoked in this case. Thornton v. Lane, 11 Ga. 459, 460; Mason & Dixon Lines v. Odom, 193 Ga. 471(1), 18 S.E.2d 841.

This Federal authority is not to be confused with those authorities-and they are numerous-which hold that an officer may be afforded the right to make a search and seizure, without a search warrant, where he observes illegal conduct or contraband merchandise, (Ramsey v. State, 92 Ga. 53, 63, 17 S.E. 613; Howell v. State, 162 Ga. 14(6c), 134 S.E. 59; Moore v. United States, 5 Cir., 296 F.2d 519; Capitoli v. Wainwright, 5 Cir., 426 F.2d 868; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067); nor is it to be confused with those authorities which hold that an arrest may be made without a warrant where the defendant's conduct is such as to justify the apprehension that he is about to commit an illegal act, or is committing such act, or is about to escape after having committed such act. Code §§ 27-207, 27-211; Seals v. State, 33 Ga.App. 818(8), 128 S.E. 224; McEwen v. State, 113 Ga.App. 765(2), 149 S.E.2d 716; Pistor v. State, 219 Ga. 161(2a), 132 S.E.2d 183; Ker v. California, 374 U.S. 23, 34, 41, 83 S.Ct. 1623, 10 L.Ed.2d 726. Our courts have held that greater latitude may be granted the officers of the law in searching automobiles and other mobile conveyances than in searching houses and premises without such mobility. See Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 69 L.Ed. 543; Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L.Ed.2d 419.

But none of these conflict with the proposition here laid down, and as held in the Federal authorities previously cited, that once an illegal arrest is made, all evidence resulting from searches and seizures during or following the illegal arrest must be repelled and not allowed in evidence.

2. All other enumerations of error are based on the general grounds of the motion for new trial and are not argued here; hence they are deemed abandoned.

Judgment reversed.

BELL, C.J., and DEEN, QUILLIAN and CLARK, JJ., concur.

HALL and EBERHARDT, P. JJ., and PANNELL and STOLZ, JJ., dissent.

STOLZ, Judge (dissenting).

The majority opinion is predicated on the theory that the search of the defendant's car was based solely on his arrest for 'prowling.' As pointed out in the majority opinion, the defendant's arrest took place at approximately 2:15 a.m. at a small shopping center in which a burglary had recently been attempted, where illegal gambling was in progress when the officers arrived and where narcotics were suspected of being used. The record shows that all stores in the shopping center were closed and that some 10 to 15 persons were there when the officers arrived and announced over their public address system that everyone was under arrest. The defendant attempted to leave the area and, in so doing, almost ran over an officer with his (defendant's) automobile. The majority contends that the defendant had the right to leave and to ignore and defy the arrest, that it was incumbent upon the State to show that the defendant was legally arrested for violating the Atlanta City Ordinance prohibiting 'prowling.' I disagree. The issue before the court is whether the officer had probable cause for his search of the defendant's automobile and the seizure of the heroin therein. I believe that he did for several reasons.

(1) The officer made no attempt to use force in attempting to arrest the defendant. Yet, the defendant almost ran over the officer in his automobile attempting to escape and thus committed an assault on the officer. Code Ann. § 26-1301(b).

'Where an arrest is not lawful, the person sought to be so arrested . . . has the right to resist, and in doing so 'has a right to resist force with force proportionate to that being used in unlawfully detaining him.' But, even here, the mere fact of unlawful arrest, in the absence of an application of unlawful force amounting to or reasonably appearing to amount to a felony, will not authorize the killing of the officer.' Mullis v. State, 196 Ga. 569, 579, 27 S.E.2d 91, 98; Graham v. State, 143 Ga. 440, 446, 85 S.E. 328; United States v. Nooks, 446 F.2d 1283 (5th Cir., 1971).

Thus, the officer had the right to arrest the defendant for the commission of a crime in his presence. Garrison v. State, 122 Ga.App. 757, 178 S.E.2d 744.

Flight of the accused, in connection with other circumstances, has likewise been held sufficient to constitute probable cause for an arrest without a warrant and search. Richardson v. State, 113 Ga.App. 163, 147 S.E.2d 653.

(2) The officers also had probable cause to arrest the defendant for gambling or as a material witness to its commission. For an excellent discussion of a history of the law on this latter point, see the opinion by Judge Powell in Crosby v. Potts, 8 Ga.App. 463, 69 S.E. 582, where Sir Francis Bacon is quoted (p. 465, 69 S.E. p. 583) as declaring in the case of Countess of Shrewsbury, 2 How.St.Tr. 769, 778 (1612), 'You must know that all subjects, without distinction or degrees, owe to the king tribute and service, not only of their deed and hand, but of their knowledge and discovery.'

Under the circumstances, the only method available to the officer to secure the defendant's attendance as a witness to the crime, was to arrest him. When the defendant indicated by his actions his reluctance to be arrested, and his resort to flight in attempting to avoid arrest, the officer was justified in conducting the search complained of, particularly where, as here, the officer personally observed the defendant removing the heroin from his person and attempting to secrete it in his automobile.

(3) The officers had probable cause to make an 'investigative stop' due to the nature of the circumstances heretofore mentioned. Terry v. Ohio, 392 U.S. 1, ...