Humphrey v. State , 231 Ga. 855 ( 1974 )

Ingram, Justice,

dissenting. I respectfully dissent to Division I of the court’s opinion and to the judgment affirming the overruling of the motion to suppress the evidence seized at the time of appellant’s arrest.

These officers certainly had good probable cause to conclude that a crime had been committed and that the appellant should be arrested. However, I do not read the record to authorize a conclusion that the crime was committed "in the presence” of the officers. They were given the signal by Councilman Morgan, as he came out of appellant’s office, that informed them the alleged bribe money had been accepted by appellant. But the officers did not see or hear the commission of the crime and they were not present in appellant’s office when he allegedly accepted the bribe money.

The facts of this case do not bring it within any of the three exceptions from which the statute authorizes an arrest without a warrant. Therefore, I must stand with Chief Justice Bleckley’s position in Thomas v. State, 91 Ga. 204, 206 (18 SE 305) that: "No one who properly appreciates the sacredness of personal liberty, and the jealousy of the law in guarding the same, can doubt that as a general rule the law requires a warrant in order to render an arrest legal, whether it be made by a policeman or any public officer. Only three exceptions to this rule are recognized by the Code. See Section 4723. The first is, where an offense is committed in the officer’s presence; the second, where the offender is endeavoring to escape; and the third, where from other cause there is likely to be a failure of justice for want of an officer to issue a warrant. Where an arrest for a past offense is intended, and there is no present emergency, no want of time or opportunity for obtaining a warrant, why should a policeman be allowed to dispense with a warrant when other officers of the law could not? Any information as to the commission of an offense which would serve as a reasonable basis for making an arrest, would serve for suing out a warrant.”

For additional authority, see Vlass v. McCrary, 60 Ga. App. 744 (5 SE2d 63); and Ronemous v. State, 87 Ga. App. 588, 591 (74 SE2d 676).

Since the appellant’s arrest without a warrant was unlawful, it follows that the evidence seized incident to that arrest must be suppressed.