State v. Giangregorio

352 S.E.2d 193, 181 Ga. App. 324, 1986 Ga. App. LEXIS 2400

• Court: Court of Appeals of Georgia
• Decided: December 2, 1986
• Docket: 72874
• Status: Published

Opinions

Banke, Chief Judge.

The defendant was approached and arrested by a DeKalb County police officer as he and a companion were seated in a car parked at Hartsfield International Airport, which is located in Clayton County. The officer was working at the time as part of a drug task force comprised of detectives drawn from several metro Atlanta jurisdictions and operating under the direction of a federal Drug Enforcement Administration agent.

A search conducted incident to the arrest resulted in the seizure of a baggage claim ticket from the defendant’s person. This and other evidence linked him to a suitcase containing more than 200 grams of cocaine, which led, in turn, to his indictment for trafficking in cocaine.

The defendant moved to suppress the items seized from his person during the search on the ground that his underlying arrest was unlawful. While concluding that the arrest was supported by probable cause, the trial court nonetheless agreed that it was unlawful and granted the motion to suppress, based on a determination that the DeKalb County officer had no legal authority to effect an arrest in Clayton County. The state appeals. Held:

The defendant’s Fourth Amendment right to be free from unreasonable searches and seizures clearly was not violated merely because his arrest was effected by a DeKalb County law enforcement officer who, though a member of a duly constituted task force lawfully operating in Clayton County, had not been sworn as a Clayton County deputy. It follows that the grant of his motion to suppress was inconsistent with OCGA § 17-5-31, which provides as follows: “No search warrant shall be quashed or evidence suppressed because of technical irregularity not affecting the substantial rights of the accused.”

Such cases as McCalla v. Verdell, 122 Ga. 801 (50 SE 943) (1905); Georgia, Fla. &c. R. Co. v. Anderson, 12 Ga. App. 117 (76 SE 1056) (1912); and U. S. Motor Co. v. Baughman Auto. Co., 16 Ga. App. 783 (86 SE 464) (1915), do not constitute authority for a contrary conclusion, as they involved the validity of service of civil process by one not legally appointed by the court to do so, rather than the legality of a felony arrest effected by a law enforcement officer acting outside the county of his jurisdiction. A felony arrest may, of course, be lawfully effected by a private citizen acting without any official authority whatever, provided it is based on probable cause. See OCGA § 17-4-60. Thus, it would be anomalous to hold that the defendant’s constitutional rights were violated merely because his arrest was effected by a law enforcement officer who purported to be acting as such but whose authority was technically defective. Accord Stephens v. State, 106 Ga. 116 (2) (32 SE 13) (1898); Powell v. Fidelity & Deposit Co., 45 Ga. App. 88 (3) (163 SE 239) (1931).

Judgment reversed.

McMurray, P. J., Carley and Pope, JJ., concur. Beasley, J., concurs specially. Deen, P. J., Birdsong, P. J., and Sognier J., dissent. Benham, J., concurs in judgment of dissent only.