In Anderson v. State, 123 Ga. App. 57, supra, the detention was held to be justified where appellant was observed driving out of a closed shopping mall at 2:00 a. m.Summary of this case from Allen v. State
SUBMITTED NOVEMBER 3, 1970.
DECIDED DECEMBER 2, 1970.
Motion to suppress. Fulton Superior Court. Before Judge McKenzie.
Neil L. Heimanson, for appellant. Lewis R. Slaton, District Attorney, Stephen A. Land, Tony H. Hight, for appellee.
1. Where in connection with other suspicious circumstances a police officer looking into an automobile saw in plain view a large quantity of loose money and other paraphernalia which might reasonably have been used as burglary tools, he was justified in arresting the operator and searching the vehicle without a warrant, the totality of circumstances constituting probable cause for the belief that what the officer saw was in fact stolen property.
2. In connection with the police power of the State there is a limited right to speak to and even momentarily detain a citizen for a routine check of driver's license or identification which does not amount to an arrest or search and seizure. Such an act is in itself an invasion of the citizen's right of privacy and is permissible only to the extent that it is necessary to the proper safeguard of the public welfare.
SUBMITTED NOVEMBER 3, 1970 — DECIDED DECEMBER 2, 1970.
The motion to suppress, the denial of which is enumerated as error, is based on an arrest and search without a warrant under the following circumstances: A police officer on patrol at approximately 2 a. m. noticed an automobile emerging from a mall known as Atlanta Trade Center adjacent to Fulton Industrial Boulevard, an area which it was his duty to patrol. He knew that nothing was open in the mall at that hour of the morning, and testified that he knew 90% of the people up there, knew when they were there and when they were not, that he had checked the area on a previous round and found all the businesses closed up. The mall itself is a horseshoe-shaped complex occupied only by wholesale business establishments and Horne's Restaurant which closes prior to 10:30 p. m. He followed the car until it prepared to turn into a freeway entrance, at which time he signaled it to pull over and stop. This the driver did. The officer asked to see the operator's identification and driver's license, and, noticing that the suspect was moving one foot in an apparent attempt to conceal something, looked into the car and saw on the back floorboard a quantity of money, screwdriver, flashlight and gloves. He then placed the driver under arrest, searched the car, and found a money bag, change wrappers, vouchers and personal checks some of which bore identification showing them to be the property of Horne's Restaurant.
The witness thereupon put in a call to have Horne's Restaurant checked, and it was found to have been broken into and the safe rifled. A screwdriver tip wedged in the safe matched the screwdriver found in the defendant's car, the tip of which had been broken off. The checks, vouchers and money were identified as coming from the safe, and a Polaroid camera in defendant's possession was identified by the manager of Horne's as his personal property. The defendant was convicted on indictments for burglary and possession of burglary tools.
1. A police officer has a right to arrest without a warrant when he has probable cause to believe a crime is being committed in his presence. Code § 27-207. And while a warrantless search of a vehicle may result in the suppression of the evidence of the fruits of the illegal search where it is based upon an arrest not reasonable as without probable cause (Collins v. United States, 289 F.2d 129), it is also true under some circumstances that the "right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law." Carroll v. United States, 267 U.S. 132, 158 ( 45 SC 280, 69 LE 543, 39 ALR 790). Therefore, if probable cause exists, a search of an automobile will be upheld under circumstances which would not justify a warrantless search of a home or office; the same probable cause which justifies the arrest may justify the search, and, given probable cause, no Fourth Amendment distinction exists between making an immediate search without a warrant or impounding the vehicle until a warrant may be obtained. Chambers v. Maroney, 399 U.S. 42 ( 90 SC 1975, 26 L.Ed.2d 419). This is always dependent on the exigencies of the immediate situation. The officer here testified that he looked into the automobile and saw burglary tools, but whether a screwdriver, gloves, chisel and so forth are burglary tools, or a legitimate part of an automobile repair kit, or household tools being transported for the convenience of the owner is itself a thing impossible to decide without other circumstances. The officer's conclusion that he was looking at burglary tools was obviously colored by his suspicions aroused when the vehicle was seen leaving the deserted mall, but it was also influenced by his view of the money and torn money bag on the floorboard which, taken together, gave him probable cause to believe that he had in view the "fruits of crime." Under these circumstances, the articles being in plain view without a search and being sufficient in connection with the totality of circumstances to constitute probable cause for the belief that a crime was being committed in his presence, the arrest was valid and the search incident thereto was reasonable. Code Ann. § 27-301 (c). See also State v. Durham, 367 S.W.2d 619 (Mo.), cert. den., 375 U.S. 861 ( 84 SC 130, 11 L.Ed.2d 89); 10 ALR3rd, Ann. p. 314 et seq.
2. The defendant further contends, however, that the operator and vehicle were seen violating no law, had a right to be on the public road where the officer first saw them, and that the initial detention at the freeway entrance itself constituted an unlawful arrest as the officer had no right to stop the defendant for interrogation. Here we move into murkier territory. Was the mere presence of the defendant on the mall at a time when the witness knew all business offices were closed in itself a sufficient reason for his pursuing and stopping the car? Would he be within his rights in stopping the vehicle and conducting a minimum check of the driver's credentials with no objective justification whatever? The subject is candidly discussed by Professor Charles A. Reich in the article "Police Questioning of Law Abiding Citizens," Yale Law Journal, Vol. 75, p. 1161. The writer queries: "The first issue that troubles me is whether the police have any power at all to stop a law abiding person on a public street... The next issue is what questions the police may ask... Closely related to questioning is the issue of the individual's replies. May he refuse to answer? May he demand to know the identity of the officer? May he demand to know why he is being stopped? May he lie to the officer about his age, or why he is out on the street? May he turn and go on his way? I submit that very few people know what their rights are under such circumstances. I do not even know how to find out."
While it has been held that the stopping of a moving automobile to investigate a suspected connection between the occupant and a felony was not a mere momentary detention but an unlawful arrest for investigation (Bowling v. United States, 350 F.2d 1002), and while there is also some scant authority for the proposition that where there is no room for suspicion other than mere subjective hunch, a detention for questioning, even though perfunctory, is a serious invasion of the privacy of the individual. It has also been held that the mere act of stopping does not ipso facto constitute an arrest (United States v. Thomas, 250 F. Supp. 771; Rodgers v. United States, 362 F.2d 358) and that circumstances short of probable cause for arrest may justify the stopping of a pedestrian or motorist for limited questioning. United States v. Bonds, 422 F.2d 660 (Mo.); United States v. Unverzagt, 424 F.2d 396 (Neb.); Cunha v. Superior Ct. of Alameda County, 2 Cal.3d 335 ( 466 P.2d 704, 85 Cal Rptr. 160); People v. Gibson, 220 Cal.App.2d 15 (33 Cal.Rptr. 775); State v. Padilla, 235 So.2d 309 (Fla.). In the present case the questioning was limited to a request for identification and driver's license and was prompted by the presence of the vehicle in an area and at a time when the witness felt it unlikely that a person with legitimate business would be present. As Professor Reich points out, one may legitimately be in such a place on no business whatever, perhaps merely to be alone or to watch the moon, and he has a right to do so without harassment. The point at which the routine protection of the public becomes an invasion of the right of privacy of the individual must rest on the particular circumstances involved. In the present instance we hold that the limited detention for identity check was justified and did not amount to an arrest, that the evidence lying in plain view in the car after it was stopped constituted probable cause for the arrest, and that the search of the automobile and seizure of its contents in connection with the arrest was not unlawful although without a warrant.
What has been said above disposes of all enumerations of error, including the admission of testimony concerning and photographs of the property recovered from the automobile.
Judgment affirmed. Evans, J., concurs. Hall, P. J., concurs in the judgment and in Division 1 of the opinion.