Vaughn v. State, 46957

• Citation: 190 S.E.2d 609,126 Ga.App. 252
• Decision Date: 10 April 1972
• Docket Number: No. 46957,No. 2,46957,2
• Parties: Alvin VAUGHN v. The STATE
• Court: United States Court of Appeals (Georgia)

Page 609

190 S.E.2d 609

126 Ga.App. 252

Alvin VAUGHN v. The STATE.

No. 46957.

Court of Appeals of Georgia, Division No. 2.

April 10, 1972.

Rehearing Denied May 11, 1972.

Gilbert & Carter, Fred A. Gilbert, Jack G. Handler, Atlanta, for appellant.

Thomas W. Ridgway, Dist. Atty., Monroe, Charles T. Shean, III, Athens, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

On Saturday afternoon, October 9, 1971, Walton County Sheriff Franklin Thornton received information that there was a described stolen car at Alvin Vaughn's house. The informer further told the sheriff 'that Alvin Vaughn and Bobby Lee Fears had left Monroe for Washington, D.C. to purchase drugs,' which were described as heroin and LSD with Vaughn having had about $1,000 in his possession. Sheriff Thornton contacted Assistant Police Chief Underwood of Monroe and they verified the car which they observed to be in an area adjacent to the Vaughn home had in fact been stolen from Atlanta where the police had an arrest warrant pending for Fears. The informer reported Vaughn and Fears would be returning sometime Sunday afternoon in a 1969 yellow and black Mercury belonging to Vaughn. The sheriff and police went to the Vaughn home on Sunday, October 10, and removed the stolen car from the premises. They talked to Vaughn's wife and learned from her she anticipated her husband would return during the afternoon. Policemen were called in to keep the Vaughn residence under surveillance.

The Vaughn automobile arrived at the Vaughn home Sunday afternoon with four passengers, they being Alvin Vaughn, Bobby Lee Fears, Tyrone Williams and Vaughn's ten-year-old son. Fears was driving, Williams was in the front seat and Vaughn in the rear. Upon searching the men the officers found Williams possessed two hypodermic needles and a marijuana cigarette. They also observed some green leafy material on the floor of the car which the officers regarded as being marijuana. All three were placed under arrest and incarcerated in the Monroe City Jail at approximately 4:30 p.m. The Vaughn vehicle was driven to the jail by the officers, who impounded it after making certain it was locked.

Contact was next made by telephone with Justice of the Peace Marcus Malcolm who was visiting at an Athens hospital. The officer informed him they desired a search warrant for Vaughn's car and an arrest warrant for Tyrone Williams. The justice of the peace returned to Monroe where Sheriff Thornton and two Monroe police officers executed the necessary affidavit to obtain a search warrant for the 1969 Mercury car registered in Vaughn's name. This was done at 5:15 p.m. Sunday.

The search disclosed a small clear bag hidden under the rear of the driver's seat. A return was prepared on the original warrant as to finding 'one small clear bag containing a white powder believed to be Heorin (sic).' This return was not signed by any of the officers nor by the justice of the peace but was delivered to the justice of the peace. The report from the State Crime Laboratory showed this to be heroin.

Immediately after discovery of the heroin shortly before dark on Sunday afternoon request was made for an arrest warrant but the justice of the peace suggested this be delayed until Monday morning. After the issuance of the arrest warrants on October 11, 1971, Vaughn and the other defendants were brought from jail before the committing magistrate Monday afternoon. The State contends Vaughn made an intelligent waiver of his right to a committal hearing which is denied by defendant who was released after posting bail.

On November 15 the grand jury returned an indictment in two counts charging the three defendants with possession of marijuana in violation of the Georgia Drug Abuse Control Act and possession of heroin contrary to the Georgia Uniform Narcotic Act.

One week later, November 22, the case was called for trial with Vaughn going on trial separately from the other two defendants. The first day was occupied by testimony and legal arguments based on motions made by defense counsel, all of which were overruled with the rulings being presented as enumerations of error and dealt with separately hereafter in this opinion.

The trial occupied the next two days with testimony from the law enforcement officers as to the foregoing facts. The codefendant Tyrone Williams was called as a witness for the State. He described the trip which he made with Vaughn, Fears and Vaughn's ten-year-old son to Virginia including details of the purchase of the heroin and the return trip to Monroe. He acknowledged that he had been a heroin addict.

Defendant's unsworn statement denied having anything to do with the heroin including an absence of knowledge of its presence in his automobile.

The court directed an acquittal as to the marijuana possession count and the jury found defendant guilty of possession of heroin. Thereafter in the statutory bifurcated proceedings the jury's verdict provided a three year imprisonment and a fine of $2,000 which was made the judgment of the court.

There are seventeen enumerations of error which will not be considered in numerical order but dealt with in chronological sequence as they occurred during the trial. Held:

1. The intial defense motion was to suppress the evidence consisting of the bag containing the heroin (Enumeration No. 14). The motion stated eight grounds which may be summarized as the arrest being without warrant and illegal, a failure to show probable cause for issuance of the search warrant, and that the impounding of the vehicle and search thereof was a violation of defendant's constitutional rights. It is also argued that the affidavit upon which the search warrant was issued does not contain sufficient facts to show probable cause.

At the pre-trial hearing on this motion testimony given by the sheriff and four police officers developed receipt of information from a reliable informer that had resulted in recovery of a stolen automobile on Vaughn's premises, the arrival of the described Vaughn car with Fears therein as predicted by the informer, a voluntary search of Williams disclosing possession of narcotic paraphernalia plus one marijuana cigarette and that there were traces of a 'green leafy substance on the floor' of Vaughn's car thought to be marijuana. Thus is appears that not only was there 'likely to be a failure of justice for want of an officer to issue a warrant' within the requirement of Code § 27-207 but the officers had sufficient facts and information to warrant a belief that Vaughn was committing an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142; Howell v. State, 162 Ga. 14, 134 S.E. 59; Gordy v. State, 93 Ga.App. 743, 92 S.E.2d 737.

Our examination of the affidavit signed by the sheriff and also by two police officers which details the facts on which the warrant was requested shows probable cause that a crime was being committed or had been committed within the provisions of Code Ann. § 27-303. 'Probable cause exists where the facts and circumstances within the officers' knowledge, and of which they had reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.' Headnote 4 of Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. See also Campbell v. State, 226 Ga. 883 With reference to appellant's contention that the search and seizure was unlawful because of having been made prior to arrest, 89 A.L.R.2d 715 contains an annotation dealing with the subject of 'lawfulness of non-consensual search and seizure without warrant, prior to arrest.' Cases covering search of an automobile are cited from various jurisdictions beginning at page 721. The mobility of vehicles is recognized by the courts in comparison with the strictness applied to search of a residence, 'a man's castle.' The leading case is Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, where at page 158, 45 S.Ct. at pages 287, we find the following: 'The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.' It is obvious in the case involved that if the automobile had not been impounded it could have been removed and the contraband heroin disposed of.

178 S.E.2d 257 and Johnston v. State, 227 Ga. 387, 18 S.E.2d 42.

Furthermore, we are of the opinion the detainer under the circumstances constituted a legal arrest and, therefore, does not come within the holdings of Dennis v. State, 108 Ga.App. 646, 134 S.E.2d 519; Raif v. State, 109 Ga.App. 354, 136 S.E.2d 169; Johnson v. State, 111 Ga.App. 298, 141 S.E.2d 574; and Rowland v. State, 117 Ga.App. 577, 161 S.E.2d 422.

2. Additionally, appellant contends his motion to suppress evidence was erroneously denied because a fatal defect existed in the search warrant procedure because the return was not in compliance with the requirement of Code Ann. § 27-310 (Ga.L.1966, pp. 567, 570) in that the officer executing the warrant failed to sign the return under oath.

The officer did in fact make his holographic entry in the printed form, his handwriting stating 'One small clear bag containing . . . Herion (sic.)' He delivered the warrant and contraband to the magistrate.

Such oversight was considered in Waters v. State, 122 Ga.App. 808, 178 S.E.2d 770. This court ruled that absent a showing of prejudicial error to defendant the failure to swear to the return was not a fatal defect on the authority of Code Ann. § 27-312 (Ga.L.1966, pp. 567, 571), 'No warrant shall be quashed nor evidence suppressed because of a technical irregularity not affecting the substantial rights of the accused.' Such holding is in accordance with the federal rule as shown by citations contained in the Waters opinion. See also two decisions by the United...