Walker v. State

• Decision Date: 12 February 1974
• Docket Number: No. 48755,No. 2,48755,2
• Citation: 205 S.E.2d 49,130 Ga.App. 860
• Parties: Larsell WALKER et al. v. The STATE
• Court: Georgia Court of Appeals

Page 49

205 S.E.2d 49

130 Ga.App. 860

Larsell WALKER et al. v.The STATE.

No. 48755.

Court of Appeals of Georgia, Division No. 2.

Feb. 12, 1974.

A. L. Stanfield, James O. Goggins, Atlanta, for appellants.

William H. Ison, Dist. Atty., J. W. Bradley, Jonesboro, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

Walker and Dupree have brought this appeal from convictions on three offenses: (1) Possession of tools for the commission of a crime; (2) use of a motor vehicle license plate for the purpose of concealing a motor vehicle; and (3) possession of firearms during the commission of a crime.

The arrests of defendants resulted from suspicious circumstances observed by Zellner, a Forest Park detective, while on patrol duty in an unmarked car at approximately 7:55 a.m. on August 21, 1972.He noticed a 1969 Chevrolet parked as the sole vehicle in a small shopping center lot near a bank.Observing Walker stooped at the rear of the automobile in what appeared to be the act of changing license tags the detective requested a police department registration check.Before receiving an answer from this request he saw the suspicious vehicle leaving the area.He then followed it to Mountain View in Clayton County where the car was again parked in a lot near a business establishment.Shortly thereafter the tag registration report came back and indicated improper registration.Zellner then asked Clayton County police to investigate but before they took any action the Chevrolet left Clayton County and proceeded into the City of Atlanta.Having followed the automobile Detective Zellner notified the Atlanta police who halted the car.These officers questioned defendants concerning the license tag and were informed that the proper tag was in the trunk.The evidence was conflicting as to whether consent was given for the officers to open the trunk.Upon arrival of another officer defendant Walker was arrested for improper tag registration.

After the driver, Walker, had been placed in the patrol car the police requested defendant Dupree to leave the vehicle.When this was being done the officers observed a rifle butt sticking out from under a rain coat on the rear seat.It developed this was a sawed-off shotgun.Both defendants were then placed under arrest for possession of tools for the commission of a crime.A further search of the vehicle resulted in discovery of a portion of a female stocking with a knot tied in the top which could be used as a mask.Other items were a loaded pistol, plastic sacks, plastic garbage bags with clothes of different types and a box of shotgun shells.In the glove compartment was found another revolver and a roll of masking tape.

Defendant Dupree in an unsworn statement stated that he asked Walker to bring him to Forest Park to look for a job that he purchased cigarettes and was returning to Atlanta when stopped by the officers.He said he did not have anything in the car.

Defendant Walker in an unsworn statement stated the vehicle belonged to his father, that he and defendant Dupree came to Forest Park looking for a job, that he knew the shotgun was in the car but it was not hidden, that he didn't know about the shells and the pistol; that the stocking belonged to him; and that he knew the wrong tag was on the car.He denied having given permission for the officers to search the car.

This appeal is on the general grounds and the following special grounds: (1) The search and seizure was illegal; (2) that the state failed to prove the items found in defendants' automobile were tools commonly used in commission of a crime; (3) that the state failed to prove that driving an automobile with improper license tag was a felony; and (4) that the court erred during the sentencing phase in denying defendants their right to make unsworn statements and requiring defendants to be sworn 'subject to the rules of evidence.'

1.'Attention is . . . called to the rule that in every case where a verdict has been rendered by a jury and has received the approval of the trial court, the evidence given in support thereof must be construed most strongly toward the prevailing party in the trial court, that is, most strongly in favor of supporting the verdict.It must be construed 'in its most favorable light to the prevailing party, . . . for every presumption and inference is in favor of the verdict.'(Cits.)'Ryder v. State, 121 Ga.App. 796, 798, 175 S.E.2d 882, 883.

2.After being observed acting suspiciously defendants were stopped for having the wrong license tag on the car.There are conflicts in testimony as to whether they were arrested before the trunk of the car was opened and as to whether defendant Walker consented to the opening of the trunk.Walker did state that he told the officers the correct license tag was in the trunk.'There was direct testimony, although disputed by the defendants, that they had voluntarily given permission for a search of the automobile.'Shue v. State, 129 Ga.App. 757, 758, 201 S.E.2d 174.

Initially on the motion to suppress, 'The credibility of the witness is for the trial judge's determination.Simmons v. State, 111 Ga.App. 553, 554, 142 S.E.2d 308 . . . Therefore, where there is a conflict in the evidence on the motion to suppress, the ruling of the trial court will be upheld where there is any evidence to authorize a finding in support of his order.'Brisendine v. State, 130 Ga.App. 249(203 S.E.2d 308).

As the search for the tag, if made after arrest, was incidental to the arrest for improper tag registration and as the trial judge's determination that the search of the trunk was a legal search is thus supported by one version of the evidence, we affirm.

According to the testimony, the shotgun was in plain view in the back seat and was seen by the police inadvertently when they asked defendant Dupree to get out of the car.Clearly the officers could seize a gun as a matter of self-protection.A police officer is free to use and seize what he sees in plain sight if he is at a place where he is entitled to be and if exigent circumstances exist which justify a warrantless seizure.Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726;Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067.After observing the shotgun defendants were charged with possessing tools commonly used in committing a crime.Search of the car, including glove compartment and trunk, followed.'The search was in connection with a valid arrest and upon reasonable grounds, particularly since the gun was in plain view (Bass v. State, 123 Ga.App. 705(2), 182 S.E.2d 322;Moody v. State, 126 Ga.App. 108, 189 S.E.2d 889), and he had acted in a suspicious manner . . . It was not an unreasonable search, and was not proscribed by the constitutional provisions.Moreover, the trunk of the car was opened voluntarily by appellant to enable the officers to make the search.Young v. State, 113 Ga.App. 497, 148 S.E.2d 461;Ferguson v. State, 218 Ga. 173(8), 126 S.E.2d 798.'Raymond v. State, 129 Ga.App. 17, 198 S.E.2d 430.

Although some of the items seized were not incriminating per se, 'The equipment found in the trunk was accordingly also admissible and whether it constituted tools kept for the purpose of committing burglary was a jury question.'Shue v. State, 129 Ga.App. 757, 758, 201 S.E.2d 174, 175, supra.This language from Reid v. State, 129 Ga.App. 41, 43(4), 198 S.E.2d 358, 360, is here applicable: "Evidence as to . . . all the circumstances connected with the arrest, are proper matters to be submitted to the jury to be weighed by them for what they are worth.'Clements v. State, 226 Ga. 66(1), 172 S.E.2d 60 and cits.;Satterfield v. State, 127 Ga.App. 528(6), 194 S.E.2d 295 and cits.Since the possession of money is not per se incriminating evidence, the jury was entitled to decide whether the defendant's possession of it was for a lawful purpose . . . or whether the possession, in connection with other circumstances, was evidence that the defendant was engaged in an unlawful enterprise . . .'

Therefore we hold the searches and seizures here, though warrantless, were legal since they can be categorized either as consent searches or searches pursuant to arrest or seizure of dangerous weapon in plain view.

3.Defendants contend that the time interval between detective Zellner's first sighting defendants and the arrest was such that there was a sufficient period in which to obtain a warrant.This contention does not fit the realities of the situation.During that time interval defendants' car traveled from Forest Park south to Mountain View and then north to Atlanta.Had detective Zellner gone to obtain a warrant, where would defendants be?Detective Zellner explained that he being in an unmarked car could not stop defendants and make an arrest.

' Although the search of a dwelling is not authorized without a proper search warrant, when the officers have ample time to procure one, a search of a movable vehicle is an exception, provided there is sufficient probable cause for such search.SeeCarroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543;Register v. State, 124 Ga.App. 136, 137-138, 183 S.E.2d 68.The arrest and the search of the defendant's automobile was not without probable cause.Under the facts disclosed here, a search warrant was not necessary, since the police officers had probable cause for a search without a warrant.The court did not err in making a determination that the facts available to the officers at the moment of arrest would have warranted a reasonable belief that an offense had been committed.Johnson v. State, 111 Ga.App. 298, 306, 141 S.E.2d 574.'Satterfield v. State, 127 Ga.App. 528(4), 194 S.E.2d 295, supra.

In the instant case exigent circumstances did exist since the vehicle was in constant motion and the offense of improper tag registration had been established.See alsoMiller v. State, 127 Ga.App. 248, 249, 192...