Traylor v. State

193 S.E.2d 876, 127 Ga. App. 409, 1972 Ga. App. LEXIS 904

• Court: Court of Appeals of Georgia
• Decided: September 20, 1972
• Docket: 47152
• Status: Published

Opinions

Evans, Judge.

The defendant was indicted, tried and convicted of the possession of heroin. Motion for new trial was duly filed and amended and thereafter overruled. The appeal is from this final judgment. Held:

1. The main contention of the defendant involves the denial of his motion to suppress the evidence because it was an illegal search and seizure, there being no probable cause therefor, and the same was in violatibn of the 4th and 14th Amendments of the United States Constitution. An Atlanta police officer testified that he and two other police officers were aware that there had been burglaries of a small grocery store in a small shopping center; that it had been reported to him by informants that narcotics and drugs were being used in the parking lot of the shopping center and that crap games go on there quite frequently; that he and the two other police officers drove up to this parking lot at 2:15 a.m. on August 11, 1971, "to try to break up the crap game.” There were approximately 15 males in the area. One of the officers announced over a public address system that they were all under arrest. A crap game was going on in one corner, and the occupants began to run in all directions. This defendant, who had been leaning against an automobile, got into a Cadillac automobile and fled the scene. The officer stopped him on the street, again advised him he was under arrest for "prowling,” and ordered him out of the automobile, at which time they noticed him taking white paper like "plastic” out of his pockets and placing it under the arm rest of the car. Later, packages of heroin were found under the arm rest.

Whether or not there was sufficient evidence to convict the accused of prowling or gambling (Code Ann. § 27-313; Ga. L. 1966, pp. 567, 571) requires that in any hearing of a motion to suppress the evidence of an illegal search and seizure, the burden of proving that the same was lawful shall be on the State. On three separate occasions the officer advised defendant he was under arrest for "prowling,” and defendant chose to ignore or defy the arrest, and left the parking area. He was forcibly stopped on the street, and taken into custody for "prowling.” The defendant had the right to leave, and to ignore or defy the arrest, if said arrest was illegal. Griffin v. State, 183 Ga. 775, 779 (190 SE 2); Mullis v. State, 196 Ga. 569, 580 (27 SE2d 91). It was therefore incumbent on the State to show that defendant was legally arrested for "prowling,” by introducing an exemplified copy of the city ordinance on the subject, if such existed. Failure to introduce such evidence resulted in showing that the arrest was illegal, and the officer was thereafter without any authority to seize the packages of heroin he found under the arm rest while holding the defendant under an illegal arrest.

In the case of Wong Sun v. United States, 371 U. S. 471 (1-4) (83 SC 407, 9 LE2d 441) the United States Supreme Court clearly and concisely holds that the fruits of an illegal arrest are not admissible in evidence against a defendant, and a conviction which is based upon evidence thus illegally admitted must be reversed and set aside. See also Collins v. United States, 289 F2d 129, 130 and cits. Of course, this court is absolutely bound by the decisions of the United States Supreme Court on Federal questions, which were invoked in this case. Thornton v. Lane, 11 Ga. 459, 500; Mason & Dixon Lines v. Odom, 193 Ga. 471 (1) (18 SE2d 841).

This Federal authority is not to be confused with those authorities — and they are numerous — which hold that an officer may be afforded the right to make a search and seizure, without a search warrant, where he observes illegal conduct or contraband merchandise (Ramsey v. State, 92 Ga. 53, 63 (17 SE 613); Howell v. State, 162 Ga. 14 (6c) (134 SE 59); Moore v. United States, 296 F2d 519; Capitoli v. Wainwright, 426 F2d 868; Harris v. United States, 390 U. S. 234 (88 SC 992, 19 LE2d 1067)); nor is it to be confused with those authorities which hold that an arrest may be made without a warrant where the defendant’s conduct is such as to justify the apprehension that he is about to commit an illegal act, or is committing such act, or is about to escape after having committed such act. Code §§ 27-207, 27-211; Seals v. State, 33 Ga. App. 818 (8) (128 SE 224); McEwen v. State, 113 Ga. App. 765 (2) (149 SE2d 716); Pistor v. State, 219 Ga. 161 (2a) (132 SE2d 183); Ker v. California, 374 U. S. 23, 34 (83 SC 1623, 10 LE2d 726). Our courts have held that greater latitude may be granted the officers of the law in searching automobiles and other mobile conveyances than in searching houses and premises without such mobility. See Carroll v. United States, 267 U. S. 132, 153 (45 SC 280, 69 LE 543, 39 ALR 790); Chambers v. Maroney, 399 U. S. 42, 48 (90 SC 1975, 26 LE2d 419).

Submitted May 1, 1972 Decided September 20, 1972 Rehearing denied October 25, 1972. Glenn Zell, for appellant. Lewis R. Slaton, District Attorney, Joel M. Feldman, Carter Goode, for appellee.

But none of these conflict with the proposition here laid down, and as held in the Federal authorities previously cited, that once an illegal arrest is made, all evidence resulting from searches and seizures during or following the illegal arrest must be repelled and not allowed in evidence.

2. All other enumerations of error are based on the general grounds of the motion for new trial and are not argued here; hence they are deemed abandoned.

Judgment reversed.

Bell, C. J., Deen, Quillian and Clark, JJ., concur. Hall, P. J., Eberhardt, P. J., Pannell and Stolz, JJ., dissent.