SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
February 4, 2014
In the Court of Appeals of Georgia A13A2152. PARKER v. THE STATE.
MILLER, Judge.
Following a stipulated bench trial, the trial court found Male Parker guilty of
armed robbery (OCGA § 16-8-41). On appeal, Parker challenges the trial court’s
denial of his motion to suppress, contending that the trial court erred in allowing
hearsay evidence and
failing to suppress statements he made to police officers, evidence found during a
search of his residence, and photographic identifications of Parker. Discerning no
error, we affirm.
In reviewing a trial court’s ruling on a motion to suppress, we may consider all
relevant and admissible evidence of record introduced at the motion hearing or during
trial. See Walker v. State, 314 Ga. App. 67 (1) (722 SE2d 887) (2012). Additionally, [w]hile a trial court’s findings as to disputed facts will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.
(Citation and punctuation omitted.) Id.
So viewed, the evidence shows that in April 2010, Parker and his girlfriend
resided in apartment number 2203 at the Waterford Club Apartments in Lithia
Springs. At that time, Parker owned a Hi Point semi-automatic 9mm pistol. Sometime
before April 19, 2010, co-defendant Jabree Smith approached Parker with a plan to
commit an armed robbery, and Parker agreed to participate in the armed robbery of
the victim.
On April 19, 2010, the victim traveled to the Waterford Club Apartments,
believing that he was meeting Smith to purchase one pound of marijuana for $1,300.
Neither Parker, Smith, nor a third co-defendant, Matthew Bourassa, ever intended to
sell marijuana to the victim, and no one in the trio had a pound of marijuana to sell.
When the victim arrived at the apartment complex, he met Smith in the parking lot,
and Smith directed the victim to the 2300 building. Parker and Bourassa were hiding
in a basement level breezeway. Smith led the victim down some stairs and into the
breezeway, whereupon Parker pointed his loaded gun at the victim and cocked it.
2 Parker ordered the victim to get on the ground, and Bourassa then searched the
victim. Upon taking the victim’s cell phone and a wallet, Parker told the victim, “[w]e
ought to just shoot you.”
The victim told Parker and the co-defendants that a friend was holding the
money for the victim at a nearby gas station. Parker gave his gun to Smith, and Smith
held the victim at gunpoint while the victim drove to the gas station. Once they
arrived at the gas station, Smith exited the car and fled on foot to apartment number
2203, where he returned the gun to Parker. Parker hid the gun in the closet of his
master bedroom. Smith and Bourassa then went to Bourassa’s residence, Waterford
Club apartment number 2222. The victim subsequently called the police.
The investigating officer spoke to the victim and, upon learning that the
robbery occurred at the Waterford Club Apartments, the investigating officer, the
victim, and other officers went to that apartment complex. The investigating officer
then received a physical description of the suspects and began canvassing the
complex in search for individuals matching that description. The investigating officer
spoke to a leasing agent, and she identified Bourassa as an individual matching the
physical description of one of the suspects. The agent directed the investigating
officer to apartment number 2222.
3 The investigating officer and other officers proceeded to Bourassa’s apartment
and knocked on the door. Bourassa answered the door, stepped outside, and briefly
spoke to the investigating officer . The investigating officer told Bourassa that he was
investigating an armed robbery and asked whether anyone else was in the apartment.
Bourassa stated that Smith was inside the residence, and Smith was ultimately
removed from the apartment. While Bourassa and Smith were outside the apartment,
the victim positively identified them as his assailants. Bourassa and Smith were then
arrested and transported to the Douglas County Sheriff’s Office.
After being advised of and waiving their Miranda rights, Bourassa and Smith
both gave statements admitting that they and Parker were involved in the armed
robbery. During these custodial interviews, Bourassa and Smith provided Parker’s
physical description and information that Parker used the first name “Marquis,” he
lived in apartment 2203 with his girlfriend, and his girlfriend drove a white Dodge
Avenger.
The investigating officer then directed other police officers, who were still at
apartment 2222, to conduct surveillance on Parker’s apartment – apartment number
2203. Police officers observed Parker’s girlfriend drive up to the apartment complex
in a white Dodge Avenger, exit her vehicle, and enter apartment 2203. Police officers
4 then heard the girlfriend tell someone that police officers were all over the place and
were outside staring at her. A few minutes later, Parker exited the apartment and
walked towards his girlfriend’s car. Since the police officers were looking for a
suspect that lived in apartment 2203 and Parker matched the general description of
that suspect, the police officers detained him. After Parker told the onsite officers his
name, the investigating officer who was back at the sheriff’s office used an on-file
photograph of Parker for the purpose of preparing a photo lineup. Bourassa and Smith
then identified Parker during separate photo lineups.
Parker was arrested and transported to the sheriff’s office. Meanwhile, police
officers obtained and executed a search warrant for Parker’s apartment. During the
search, police officers found a loaded pistol and clothing similar to that described by
The investigating officer subsequently interviewed Parker at the sheriff’s
office. The officer read Parker the Miranda warnings, and Parker waived his rights
and agreed to talk to the officer. Parker then admitted that he was the gunman during
the armed robbery.
In several enumerations of error, Parker contends that the trial court erred in
denying his motion to suppress his custodial statements, evidence found during a
5 search of his apartment, and his co-defendants’ pre-trial identifications of him.
Parker’s arguments lack merit.
1. Parker first contends that the trial court erred in allowing the investigating
officer to testify about another officer’s custodial interview of Bourassa and Smith.
Parker specifically argues that the hearsay evidence could not be used to prove the
lawfulness of the State’s actions and violated his right to confront witnesses. We
discern no error.
“A defendant may seek to suppress evidence seized during a warrant search if
the warrant was not supported by probable cause.” (Footnote omitted.) Shivers v.
State, 258 Ga. App. 253, 253-254 (573 SE2d 494) (2002).
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SECOND DIVISION BARNES, P. J., MILLER and RAY, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. http://www.gaappeals.us/rules/
February 4, 2014
In the Court of Appeals of Georgia A13A2152. PARKER v. THE STATE.
MILLER, Judge.
Following a stipulated bench trial, the trial court found Male Parker guilty of
armed robbery (OCGA § 16-8-41). On appeal, Parker challenges the trial court’s
denial of his motion to suppress, contending that the trial court erred in allowing
hearsay evidence and
failing to suppress statements he made to police officers, evidence found during a
search of his residence, and photographic identifications of Parker. Discerning no
error, we affirm.
In reviewing a trial court’s ruling on a motion to suppress, we may consider all
relevant and admissible evidence of record introduced at the motion hearing or during
trial. See Walker v. State, 314 Ga. App. 67 (1) (722 SE2d 887) (2012). Additionally, [w]hile a trial court’s findings as to disputed facts will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.
(Citation and punctuation omitted.) Id.
So viewed, the evidence shows that in April 2010, Parker and his girlfriend
resided in apartment number 2203 at the Waterford Club Apartments in Lithia
Springs. At that time, Parker owned a Hi Point semi-automatic 9mm pistol. Sometime
before April 19, 2010, co-defendant Jabree Smith approached Parker with a plan to
commit an armed robbery, and Parker agreed to participate in the armed robbery of
the victim.
On April 19, 2010, the victim traveled to the Waterford Club Apartments,
believing that he was meeting Smith to purchase one pound of marijuana for $1,300.
Neither Parker, Smith, nor a third co-defendant, Matthew Bourassa, ever intended to
sell marijuana to the victim, and no one in the trio had a pound of marijuana to sell.
When the victim arrived at the apartment complex, he met Smith in the parking lot,
and Smith directed the victim to the 2300 building. Parker and Bourassa were hiding
in a basement level breezeway. Smith led the victim down some stairs and into the
breezeway, whereupon Parker pointed his loaded gun at the victim and cocked it.
2 Parker ordered the victim to get on the ground, and Bourassa then searched the
victim. Upon taking the victim’s cell phone and a wallet, Parker told the victim, “[w]e
ought to just shoot you.”
The victim told Parker and the co-defendants that a friend was holding the
money for the victim at a nearby gas station. Parker gave his gun to Smith, and Smith
held the victim at gunpoint while the victim drove to the gas station. Once they
arrived at the gas station, Smith exited the car and fled on foot to apartment number
2203, where he returned the gun to Parker. Parker hid the gun in the closet of his
master bedroom. Smith and Bourassa then went to Bourassa’s residence, Waterford
Club apartment number 2222. The victim subsequently called the police.
The investigating officer spoke to the victim and, upon learning that the
robbery occurred at the Waterford Club Apartments, the investigating officer, the
victim, and other officers went to that apartment complex. The investigating officer
then received a physical description of the suspects and began canvassing the
complex in search for individuals matching that description. The investigating officer
spoke to a leasing agent, and she identified Bourassa as an individual matching the
physical description of one of the suspects. The agent directed the investigating
officer to apartment number 2222.
3 The investigating officer and other officers proceeded to Bourassa’s apartment
and knocked on the door. Bourassa answered the door, stepped outside, and briefly
spoke to the investigating officer . The investigating officer told Bourassa that he was
investigating an armed robbery and asked whether anyone else was in the apartment.
Bourassa stated that Smith was inside the residence, and Smith was ultimately
removed from the apartment. While Bourassa and Smith were outside the apartment,
the victim positively identified them as his assailants. Bourassa and Smith were then
arrested and transported to the Douglas County Sheriff’s Office.
After being advised of and waiving their Miranda rights, Bourassa and Smith
both gave statements admitting that they and Parker were involved in the armed
robbery. During these custodial interviews, Bourassa and Smith provided Parker’s
physical description and information that Parker used the first name “Marquis,” he
lived in apartment 2203 with his girlfriend, and his girlfriend drove a white Dodge
Avenger.
The investigating officer then directed other police officers, who were still at
apartment 2222, to conduct surveillance on Parker’s apartment – apartment number
2203. Police officers observed Parker’s girlfriend drive up to the apartment complex
in a white Dodge Avenger, exit her vehicle, and enter apartment 2203. Police officers
4 then heard the girlfriend tell someone that police officers were all over the place and
were outside staring at her. A few minutes later, Parker exited the apartment and
walked towards his girlfriend’s car. Since the police officers were looking for a
suspect that lived in apartment 2203 and Parker matched the general description of
that suspect, the police officers detained him. After Parker told the onsite officers his
name, the investigating officer who was back at the sheriff’s office used an on-file
photograph of Parker for the purpose of preparing a photo lineup. Bourassa and Smith
then identified Parker during separate photo lineups.
Parker was arrested and transported to the sheriff’s office. Meanwhile, police
officers obtained and executed a search warrant for Parker’s apartment. During the
search, police officers found a loaded pistol and clothing similar to that described by
The investigating officer subsequently interviewed Parker at the sheriff’s
office. The officer read Parker the Miranda warnings, and Parker waived his rights
and agreed to talk to the officer. Parker then admitted that he was the gunman during
the armed robbery.
In several enumerations of error, Parker contends that the trial court erred in
denying his motion to suppress his custodial statements, evidence found during a
5 search of his apartment, and his co-defendants’ pre-trial identifications of him.
Parker’s arguments lack merit.
1. Parker first contends that the trial court erred in allowing the investigating
officer to testify about another officer’s custodial interview of Bourassa and Smith.
Parker specifically argues that the hearsay evidence could not be used to prove the
lawfulness of the State’s actions and violated his right to confront witnesses. We
discern no error.
“A defendant may seek to suppress evidence seized during a warrant search if
the warrant was not supported by probable cause.” (Footnote omitted.) Shivers v.
State, 258 Ga. App. 253, 253-254 (573 SE2d 494) (2002). Similarly, in order for a
warrantless arrest to be valid, police officers must have probable cause to believe the
accused has committed or is committing a criminal act. Devega v. State, 286 Ga. 448,
451 (4) (b) (689 SE2d 293) (2010).
It has long been recognized that hearsay is admissible in determining the existence of probable cause. Admission of hearsay for that purpose does not violate the constitutional right of a defendant to confront the accusing witnesses, because guilt or innocence is not the issue for determination. There is a great difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search. A finding of probable cause may rest upon evidence which is not legally competent in a criminal trial.
6 (Citations and punctuation omitted.) Banks v. State, 277 Ga. 543, 544 (1) (592 SE2d
668) (2004). Consequently, the trial court did not err in admitting hearsay testimony
at the suppression hearing, giving it such weight and credit it deemed proper. See
McDaniel v. State, 263 Ga. App. 625, 627-628 (1) (588 SE2d 812) (2003).
2. Parker also contends the photographic identifications by his co-defendants
should have been suppressed because his photograph was obtained as a result of and
tainted by his illegal arrest. Parker argues that he was arrested when he exited his
apartment and was confronted by police. We disagree.
It is well settled that a police officer
may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity. In doing so, the officer’s action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion, and the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing. Detention beyond that . . . is an arrest, and, to be constitutional, such an arrest must be supported by probable cause.
(Citations, punctuation, and footnotes omitted.) Galindo-Eriza v. State, 306 Ga. App.
19, 22 (1) (701 SE2d 516) (2010). The test of whether a detention amounts to a
custodial arrest depends upon whether a reasonable person in the suspect’s position
would have thought the detention would not be temporary. Buford v. State, 312 Ga.
7 App. 411, 412 (1) (718 SE2d 605) (2011). Since this determination is a mixed
question of fact and law, we construe the evidence most favorably to uphold the trial
court’s findings and accept those findings unless they are clearly erroneous, but we
independently apply the legal principles to those facts. Id.
Viewed in the light most favorable to the trial court’s ruling, the evidence
shows that when police officers made contact with Parker, they had a reasonable
suspicion to believe he was the third suspect involved in the armed robbery. Notably,
Bourassa and Smith gave incriminating statements that they were involved in the
armed robbery and provided information regarding the physical description and
apartment number (2203) of the third assailant (Parker). The officers observed Parker
coming out of apartment 2203, and Parker matched the physical description provided
by Bourassa and Smith. Additionally, police officers saw a woman drive up to the
apartment complex in a white Dodge Avenger and enter apartment 2203, and those
observations were consistent with information provided by the co-defendants.
Consequently, the officers had a reasonable suspicion to detain Parker as they
investigated whether he was involved in the robbery.
During this investigation, Parker provided his full name to the police officers,
who relayed this information to the investigating officer. The investigating officer
8 then searched a police database and found a picture of Parker to prepare a photo
lineup. Contrary to Parker’s claims, although he was not free to leave, the evidence
does not conclusively show that he was under arrest, as opposed to being detained,
at the time he provided his name. Since the evidence did not show that Parker was
handcuffed, placed in a patrol car, or otherwise physically restrained, the trial court
was authorized to find that he was not under arrest at the time he provided his name
to officers. See Tune v. State, 286 Ga. App. 32, 35 (1) (b) (648 SE2d 423) (2007)
(holding that a temporary detention where defendant was not handcuffed or otherwise
restrained did not constitute an arrest); Harper v. State, 243 Ga. App. 705, 706 (1)
(534 SE2d 157) (2000) (noting that “not every detention is an arrest”) (citation
omitted). Consequently, the trial court did not err in denying his motion to suppress
the photograph identifications.
3. Parker contends that the trial court erred in denying his motion to suppress
evidence seized pursuant to his arrest, including his custodial statements, because
police officers lacked probable cause to arrest him. We disagree.
Probable cause to arrest “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.” (Citation and
9 punctuation omitted.) Devega, supra, 286 Ga. at 451 (4) (b). The facts necessary to
establish probable cause for arrest are much less than those required to prove guilt
beyond a reasonable doubt at trial, and the test for probable cause merely requires a
probability that the suspect committed a crime under the totality of the circumstances.
See Armour v. State, 315 Ga. App. 745, 746 (728 SE2d 270) (2012).
As described above, police officers had a reasonable suspicion to believe that
Parker was involved in the armed robbery. Their suspicion developed into probable
cause that Parker committed a crime when both Bourassa and Smith positively
identified Parker as the third assailant during a photo lineup. Under the totality of the
circumstances, police officers had the authority to arrest Parker. Therefore, the trial
court did not err by denying his motion to suppress evidence seized as a result of his
arrest. See Alatise v. State, 291 Ga. 428, 430-31 (3) (728 SE2d 592) (2012) (co-
defendant’s confession and incriminating statements, which were consistent with
information gained from independent investigation, provided officers probable cause
to conclude that defendant had committed a crime).
(d) Parker next contends that the trial court erred in denying his motion to
suppress the physical evidence seized from his apartment, because the State never
10 introduced into evidence the search warrant or supporting affidavit. Again, we
disagree.
Preliminarily, in Parker’s motion to suppress, he never identified that one of
the legal issues to be addressed was the existence of the search warrant.
Consequently, Parker waived the issue. See Young v. State, 282 Ga. 735, 736-738
(653 SE2d 725) (2007) (defendant waived issue regarding existence of search warrant
by not providing notice that this would be one of issues for the trial court to address).
Even if not waived, Parker’s claim is belied by the record. The record shows
that the search warrant and affidavit were filed on June 9, 2011, almost two weeks
before Parker’s hearing on his motion to suppress. Additionally, the trial court stated
that it had reviewed the search warrant and affidavit, and Parker’s attorney conceded
at the suppression hearing that he had copies of the same. Since the subject materials
were in the record and Parker had an opportunity to confront and cross-examine
witnesses about the contents of the supporting affidavit, his claim affords no basis for
reversal.1 See Bowman v. State, 205 Ga. App. 347, 348 (422 SE2d 239) (1992); see
also Flint v. State, 308 Ga. App. 532, 535 (2) (707 SE2d 498) (2011) (State met initial
1 Parker does not otherwise challenge the lawfulness of the search and seizure conducted pursuant to the search warrant.
11 burden of proof where copies of affidavit and warrant were in the record and
submitted to the trial court during the hearing). Compare Sosebee v. State, 303 Ga.
App. 499, 501 (1) (693 SE2d 838) (2010) (where State failed to produce search
warrant and police officer did not have personal knowledge of the warrant, the trial
court erred in denying motion to suppress on ground that search was conducted
without valid search warrant). Accordingly, the trial court did not err in denying
Parker’s motion to suppress.
Judgment affirmed. Barnes, P. J., and Ray, J., concur.