Williams v. State

325 S.E.2d 783, 173 Ga. App. 207, 1984 Ga. App. LEXIS 3109
Court of Appeals of Georgia·Decided November 29, 1984·No. 68917·Published·Cited by 11 cases

Opinions

Birdsong, Presiding Judge.

Appellant Johnny Lee Williams was indicted in two counts for violating the Georgia Controlled Substances Act by being in possession of more than one ounce of marijuana and cocaine with intent to distribute. On November 22, 1983, a jury found him guilty of possession only in both counts, and he appeals from the conviction and sentence.

Evidence was presented at trial showing that Bonnie Harpe, an Albany police officer, received a telephone call at her home from a confidential informant who told her that he had just overheard a conversation between appellant and another person, and that appellant was then leaving to pick up some drugs, specifically marijuana and cocaine. Appellant’s name was given to Officer Harpe and he was described as a tall, slim, black man who would be driving a blue Toyota with a license tag starting with the letters XLX. His destination was one of two locations, either on Andover Lane or in Paradise Village Trailer Park. The informant was known to Officer Harpe, having pro[208]*208vided information to her at least five or six times within the last year and a half which had resulted in arrests and the confiscation of drugs. Officer Harpe and Investigator Alex Hall drove to Paradise Village where they observed a man fitting the informant’s description leave a trailer carrying a small paper bag and get into a blue Toyota with a tag reading XLX 196. The suspect put the bag in the glove compartment and drove away with Harpe and Hall following. The officers radioed to headquarters to have the car stopped, at which time they verified appellant’s identity by checking his driver’s license. When marijuana and cocaine were found in the bag in the glove compartment, appellant was arrested and taken to the police station, where two more bags of marijuana, consisting of less than one ounce, fell from his pants leg as he was walking down the hall with the officers. Held:

1. Appellant contends that the trial court erred in refusing to grant his motion to suppress evidence, asserting that the State failed to carry its burden of establishing the reliability of the informant and that the search and seizure cannot be justified if made incident to an unlawful arrest. While the standards for such reliability usually pertain to challenges of probable cause in the issuance of search warrants, the test is whether under the totality of the circumstances, “including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823), quoting Illinois v. Gates,_ U. S._(103 SC 2317, 2332, 76 LE2d 527). This was clearly shown and fully corroborated here. See Green v. State, 168 Ga. App. 558 (309 SE2d 687); Giles v. State, 149 Ga. App. 263 (2 (d)) (254 SE2d 154). See also Lang v. State, 165 Ga. App. 576 (2) (302 SE2d 683); State v. Alonso, 159 Ga. App. 242 (283 SE2d 57).

Insofar as the stop of the car was concerned, “the evidence showed that sufficient probable cause existed from the facts and circumstances within the police officer’s knowledge to warrant a belief by a man of reasonable caution that a crime had been or was being committed. [Cits.] An officer has the authority to arrest anyone of whom he has reasonable suspicion that he has committed a felony without first obtaining a warrant. [Cit.]” Denson v. State, 159 Ga. App. 713, 714 (285 SE2d 69). Further, “ ‘when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile’ and ‘may also examine the contents of any containers found within the passenger compartment . . .’ New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768, 775) (1981). Since it appears without question that the search in this case was made as a contemporaneous incident of the arrest, we must con-[209]*209elude that it was lawful.” State v. Holden, 162 Ga. App. 33, 34 (290 SE2d 130). Accord Medlin v. State, 168 Ga. App. 551 (2) (309 SE2d 639); Green v. State, supra.

A warrantless search was also legitimate under the “automobile exception” of Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543). Williams v. State, 167 Ga. App. 42 (1) (306 SE2d 46). “A valid search without a warrant may be made incident to a legal arrest or under exigent circumstances when supported by probable cause. [Cit.] Probable cause to search may be provided by reasonably contemporaneous information from a reliable confidential informant. Reliability of the informant was established. Exigent circumstances were shown to exist because of the mobility of the automobile and the person driving it. [Cits.] Probable cause existed to search and to arrest, based upon the details and specific information from the personal observations of the known reliable informant. [Cit.] Search of the car after the arrest of the defendant was reasonable. [Cits.] The specificity provided by the informant, when verified by the observation of the police, provided additional indicia of probable cause. [Cits.] We find no error in the overruling of [appellant’s] motion to suppress.” Smith v. State, 135 Ga. App. 424-425 (218 SE2d 133); McDonald v. State, 156 Ga. App. 143 (1) (273 SE2d 881).

2. Appellant contends that his trial was barred by the doctrine of former jeopardy because he had been previously tried for the same offenses on the same facts and found guilty by a jury. While some portions of the transcript of the former trial are missing, those events were reconstructed and agreed upon in narrative form in a proceeding preliminary to the November trial as authorized by OCGA § 5-6-41 (d), and were transcribed for inclusion in the record. It appears from this transcript that a mistrial was declared in the first trial because the jury was unable to reach a verdict on both counts of the indictment, and a proper verdict was never accepted or published by the court. “A retrial after a mistrial caused by the failure of the jury to reach a verdict does not constitute double jeopardy under the doctrine of ‘manifest necessity’ as enunciated in United States v. Perez, 22 U. S. (9 Wheat.) 579 (1824). [Cits.]” Phillips v. State, 238 Ga. 632-633 (235 SE2d 12).

The jury in the first trial was able to agree only on a conviction of possession of the marijuana that fell out of the appellant’s pants leg after his arrest, and was deadlocked on the other count. Defense counsel objected to the court’s grant of mistrial, and asserts on appeal that since the court could have upheld the verdict as to Count I and requested the jury to reconsider as to Count II, there was no “manifest necessity” to declare a mistrial to ensure that the ends of justice were not defeated, as contemplated by Phillips, supra. See Murff v. State, 165 Ga. App. 808 (1) (302 SE2d 697) (revd. on other grounds, [210]*210251 Ga. 478 (306 SE2d 267)). However, it is stressed in both Phillips and Murff,

Free access — add to your briefcase to read the full text and ask questions with AI

Williams v. State, 325 S.E.2d 783, 173 Ga. App. 207, 1984 Ga. App. LEXIS 3109 (Ga. Ct. App. 1984).

325 S.E.2d 783 (Williams v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Johnson v. State
569 S.E.2d 625 (Court of Appeals of Georgia, 2002)
Bair v. State
551 S.E.2d 84 (Court of Appeals of Georgia, 2001)
King v. State
437 S.E.2d 809 (Court of Appeals of Georgia, 1993)
Rucker v. State
406 S.E.2d 277 (Court of Appeals of Georgia, 1991)
Clark v. State
375 S.E.2d 783 (Court of Appeals of Georgia, 1988)
State v. Isleib
356 S.E.2d 573 (Supreme Court of North Carolina, 1987)
Collier v. State
338 S.E.2d 724 (Court of Appeals of Georgia, 1985)
Robinson v. State
335 S.E.2d 2 (Court of Appeals of Georgia, 1985)
Turner v. State
328 S.E.2d 368 (Court of Appeals of Georgia, 1985)
Williams v. State
325 S.E.2d 783 (Court of Appeals of Georgia, 1984)