Underwood v. State

• Decision Date: 14 September 1995
• Docket Number: No. A95A2209,A95A2209
• Parties: UNDERWOOD v. The STATE.
• Court: Georgia Court of Appeals

Page 434

462 S.E.2d 434

218 Ga.App. 530

UNDERWOOD v. The STATE.

No. A95A2209.

Court of Appeals of Georgia.

Sept. 14, 1995.

John D. Rasnick, Richard L. Montgomery, Manchester, for appellant.

Peter J. Skandalakis, District Attorney, David S. McLaughlin, Assistant District Attorney, for appellee.

BIRDSONG, Presiding Judge.

Robert Underwood appeals his conviction of violation of the Georgia Controlled Substance Act, OCGA § 16-13-30, by unlawful manufacture of and possession with intent to distribute marijuana. He enumerates four errors. Held:

1. The trial court did not err in denying appellant's motion to suppress and in admitting the evidence seized at trial. The State contends the search of appellant's home and the seizure of numerous marijuana plants being grown therein were lawful, as both were accomplished pursuant to a consent to search freely and voluntarily given by appellant.

In determining legality of a search, an appellate court can consider all relevant and admissible evidence of record, including that adduced at a suppression hearing before trial and that adduced during trial. Newsome v. State, 192 Ga.App. 846(1), 386 S.E.2d 887. The State has the burden of proving that the necessary consent was freely and voluntarily given; this burden is not satisfied by showing a mere submission to a claim of lawful authority. Garcia v. State, 195 Ga.App. 635, 636(1), 394 S.E.2d 542. Voluntariness of consent must be determined from all the attendant circumstances. Id. at 637(1), 394 S.E.2d 542. Consent to search may be given after an item is seized, and once freely and voluntarily given, it eliminates the need for a search warrant or a showing of probable cause. State v. McBride, 261 Ga. 60, 62(1), 401 S.E.2d 484; compare Caldwell v. State, 260 Ga. 278, 290(2), 393 S.E.2d 436. Consent once given continues until it is unequivocally revoked or withdrawn. Mallarino v. State, 190 Ga.App. 398, 403, 379 S.E.2d 210.

The testimony of the State and the defense as to the circumstances surrounding the entry and search of appellant's home and as to whether appellant consented to the search was in conflict. The trial court judged witness credibility and weighed the evidence presented and thereafter found: "The defendant was lawfully in custody under arrest and that any statements that he made to the officers were freely and voluntarily made without the slightest hope of benefit or reward and without the remotest fear of injury after having all of his rights as required under the Miranda decision explained to him and that he understood those rights. It is also the judgment of the court that the search of his premises was consented to by the defendant after he knew that he did not have to consent and understood that the officers would have to have a search warrant if he insisted and that he then consented to that and he voluntarily consented to that." Inherent within this ruling denying the suppression motion is a finding that appellant's arrest was lawful, that his voluntary consent to search was also freely given, and that his freely and voluntarily given statements were not obtained in violation of his Miranda rights. See Garcia, supra at 637(1), 394 S.E.2d 542. "When an appellate court reviews a trial court's order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court's judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge 'hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.' [Cit.] Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. [Cit.] Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment. [Cit.]" Tate v. State, 264 Ga. 53, 54(1), 440 S.E.2d 646. Applying these three principles, we conclude the trial court did not err in denying the motion to suppress as the arrest of appellant was lawful and appellant thereafter gave a free and voluntary consent to the search of his home.

Pretermitting whether a warrant of arrest was issued before the Secret Service agents arrested appellant is whether probable cause existed to justify his warrantless arrest. "A 'warrantless arrest' is constitutionally valid if at the time of the arrest the arresting officer has probable cause to believe the accused has committed or is committing an offense. [Cits.] Probable cause exists if the arresting officer has knowledge and reasonably trustworthy information about facts and circumstances sufficient for a prudent person to believe the accused has committed an offense." Johnson v. State, 258 Ga. 506, 507(2), 371 S.E.2d 396. Prior to appellant's arrest the Secret Service agents were aware that several bleached, office machine-copied, counterfeit $100 bills were passed through Georgia, Alabama, and Louisiana. A positive ID had been made from a photospread in Alabama that appellant's son, Charles, had passed this type of counterfeit currency. Further, an agent had canvassed a Columbus, Georgia, supply house (which sells some office paraphernalia which can be used in counterfeiting). Persons at the supply house, in response to a description given to Secret Service agents of an individual passing the $100 bills stated appellant Robert Underwood fit that description. They also informed the inquiring agent that appellant had purchased a Canon CLC-200 and would buy parts for it at the supply house and, on such occasion, appellant would not give a telephone number or an address. The agency's lab in Washington had indicated to the field agents that these particular $100 bills were being printed on a Canon CLC-200. Research of the agency's files revealed that appellant had a prior record for counterfeiting and for producing OMC black and white counterfeit bills. As part of a photographic lineup, photographs of both appellant and his son were taken to establishments in Atlanta where the bleached $100 bills were passed, and some of the places "positively identified" appellant "as passing those bills." Further, appellant's description "met the description to a tee of the [person] who had been passing [the] note[s]." The primary case agent (who was not available to testify) subsequently filled out an arrest warrant; the record does not affirmatively establish whether the warrant was issued and, if so, when. Appellant was placed under surveillance about noon on the day of his arrest and was arrested for counterfeiting in the early evening after one of the surveillance agents concluded his cover had been compromised. The Secret Service agents had a verbal agreement from the United States Attorney to arrest appellant based on probable cause; the United States Attorney was notified, and he agreed with the arrest of appellant. Although it subsequently was determined that appellant had not passed the particular type bill in question, the record affirmatively establishes that the arresting Secret Service agent had probable cause for a warrantless search within the meaning of Johnson, supra.

It is the facts and circumstances existing within the knowledge of the arresting officer at the moment arrest occurs which are controlling. Barnett v. State, 204 Ga.App. 491, 493(1)(a), 420 S.E.2d 43. The record further establishes that appellant initially gave a free and voluntary oral consent to the Secret Service agents to search his home and that he subsequently ratified this valid oral consent by executing a free and voluntary written consent to search after the agents had gained entry to his home; at no time did appellant withdraw either of these two freely and voluntarily given consents to the search of his premises. This enumeration of error is without merit.

2. Appellant's second enumeration is that the trial court erred in denying his Jackson-Denno motions. This enumeration is without merit. See our holding in Division 1 above. Moreover, the record establishes that none of plaintiff's statements admitted in evidence was obtained in violation of his privilege against self-incrimination under either the Constitution of Georgia or the Fifth Amendment of the United States Constitution. The statements made by appellant to the police were either spontaneous, voluntary and not the product of an interrogation, or such statements were made after appellant was given a valid Miranda warning and had waived his rights thereunder. Appellant contends certain of his statements made during the agent's questioning were inadmissible because, after being advised of his Miranda rights, he handed the agent a business card of his attorney which contained on the back a preprinted statement purporting to assert a refusal to consent to search, a claim of exercise...