Williams v. State

• Decision Date: 28 January 1981
• Docket Number: No. 60871,60871
• Citation: 277 S.E.2d 923,157 Ga.App. 476
• Parties: WILLIAMS et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 923

277 S.E.2d 923

157 Ga.App. 476

WILLIAMS et al. v. The STATE.

No. 60871.

Court of Appeals of Georgia.

Jan. 28, 1981.

Rehearings Denied Feb. 11, 1981.

Certiorari Denied March 4 and 13, 1981.

Bobby Lee Cook, Summerville, Diane Marger, Edgar A. Neely III, Edwin Marger, Robert O. Davies, Randall Davis, Atlanta, for appellants.

Dupont K. Cheney, Dist. Atty., C. Paul Rose, Asst. Dist. Atty., for appellee.

DEEN, Presiding Judge.

Williams, Pianka, Davis and Moore were convicted of felony possession of marijuana. We first discuss the motion to suppress of the first three defendants.

1. Pursuant to information received from U. S. Customs, the G. B. I. sent a surveillance plane over a large generally wooded area owned by Williams, having on it a trailer and airstrip, and partly fronting the banks of the Ohoopee River. The occupants saw an airplane on an airstrip near a trailer in the approximate center of the property, along with two trucks and other cars parked nearby. Under cloud cover the airplane vanished but one of the trucks was then seen in an open area near the river unloading objects which they rightly assumed to be bales of marijuana. They notified other peace officers who had arrived on the ground outside the fenced premises and these men immediately shot out the lock of a gate across the road, entered, and under radio guidance with the G. B. I., the airplane went directly to the unloading scene, arrested Pianka and Davis, and located 45 bales of marijuana under nearby vegetation at the side of the road. Then turning back toward the trailer they came upon Williams in a jeep who, when he saw them, attempted an unsuccessful evasive maneuver.

The defendants first contend that since the area was fenced by strands of barbed wire and locked gate across the road the officers on ground patrol had no right to enter and conduct the warrantless search; secondly, if the information they had be held to constitute probable cause, that information itself was tainted as emanating from a surveillance airplane which violated their constitutional right to expectations of privacy.

The expectation of privacy defense is based on Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) which it is urged has interred the open fields doctrine developed by Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898 (1923) and its progeny. This conclusion is unsupported. Air Pollution Variance Board v. Western Alfalfa Corp., 416 U.S. 861, 94 S.Ct. 2114, 40 L.Ed.2d 607 (1974). Reece v. State, 152 Ga.App. 760, 264 S.E.2d 258 (1979). McDowell v. United States, 8 Cir., 383 F.2d 599(1) (1967). Katz involved the reasonable expectations of privacy of one making a call from a telephone booth (which had been outfitted with electronic eavesdropping equipment) not to be overheard. This is a far cry from a visual sighting from an airplane which admittedly was flying at a lawful height over the premises. Visual surveillance from an airplane has been held not illegal (People v. Superior Court etc., 37 Cal.App. 3d 836, 112 Cal.Rptr. 764 (1974)) unless, as in People v. Sneed, 32 Cal.App.3d 535, 108 Cal.Rptr. 146 (1973), where the helicopter descended to an elevation of 25 feet or less and thus obviously intruded upon the peace and well being of persons on the ground. The mere fact, however, that the person observed has an expectation of privacy is not the whole story; if it were, every harborer of contraband would be entitled to immunity from observation because surely unless he expected to remain undiscovered he would not risk possession of property carrying a highly undesirable penalty. The expectation must be reasonable, and it is no more unreasonable to expect an airplane to fly over a farm or wooded area at a legal distance from the ground as provided by federal regulations than to expect a passer-by, whether he be a police officer or not, to look past the strand of barbed wire separating an open field from a highway and, if he sees an illegal activity in progress, to enter the property for the purpose of arresting the protagonists. The sky, like the road, is a highway over which those licensed to do so may pass so long as they keep a proper vertical distance between their craft and the property of others. The fact that the information of the defendants' activities was obtained in this manner does not render it unuseable.

2. There were two occupants in the airplane which, after flying over the area, landed on the airstrip and met the sheriff and his party. The latter, following directions, had proceeded to the river area and arrested the defendants Pianka and Davis in the truck and later stopped and arrested Williams in the jeep. The testimony clearly establishes that the ground party was too small to contain the premises without entry, that it took over three hours to return to town and obtain a search warrant (which was done for the examination of the trailer), and that the report of Little in the plane of the activities of the defendants and the resemblance of the observed objects to bales of marijuana, combined with previous information regarding suspected activities at that location all combined to establish probable cause to believe a felony was in progress together with exigent circumstances making immediate action necessary. "When a police officer is the informant the reliability of the informant is presumed as a matter of law." Quinn v. State, 132 Ga.App. 395, 396(1), 208 S.E.2d 263 (1974). Where there is communication between the two, probable cause can rest upon the collective knowledge of the various peace officers involved. Perryman v. State, 149 Ga.App. 54, 56(3), 253 S.E.2d 444 (1979). "The exigencies of time and the possible removal of the contraband to another state created an emergency an 'exigent circumstance.' United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950)." Andreu v. State of Ga., 124 Ga.App. 793, 797, 186 S.E.2d 137 (1971). A later trespass does not render inadmissible in evidence knowledge legally obtained. Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, supra, and see Patterson v. State, 133 Ga.App. 742(4), 212 S.E.2d 858 (1976), a case in which Justice, then Judge Marshall approved Mr. Justice Harlan's concurring opinion in Katz which limns the contrasting natures of an open field and a telephone booth where search and seizure are involved. Id., p. 747, 212 S.E.2d 858.

The law enforcement officers involved had probable cause to enter the Williams property and arrest both the defendants found in the truck and Williams himself, as he apparently attempted to turn away from them in the jeep and re-enter the woods. In the latest case on this subject, Giddens v. State, 156 Ga.App. 258, 274 S.E.2d 595 (1980), this court reiterated its adherence to the open field doctrine enunciated in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898, supra, but drew a distinction between a...