Allen v. State , 140 Ga. App. 828 ( 1976 )

Marshall, Judge.

The sole issue in this appeal is whether the trial court erred in refusing to suppress evidence seized from a pickup truck in which appellant was a passenger.

The circumstances of the seizure, as developed at the hearing on the motion to suppress evidence, were that two police officers on patrol observed a pickup truck traveling on a dirt road around 1:00 a.m. on August 8, 1975. The officers pulled behind the truck before it reached the paved highway and followed it a quarter of a mile before they turned on their blue light and stopped the truck. Prior to stopping the truck, the officers had observed that there were two or three occupants in the cab and a large piece of plywood in the bed of the truck. The truck had not been speeding or weaving or committing any traffic violations, and both officers testified that they noticed nothing peculiar or unusual about the truck. There had been no reports of burglaries or other crimes in that area that evening. One officer stated that the reason for stopping the truck "was to identify the driver and see if he had a valid driver’s license.” The other officer testified that the truck was stopped for a license check. "There had been many burglaries in that area. Before it happened, I didn’t know but one of them, and that was the defendant, I didn’t say to myself, there goes three burglars. I just thought the truck should be stopped and the driver ID’ed and his license checked and find out what they might be doing in that area at that time of night.” While one of the officers was examining the driver’s license, the other officer observed on the floorboard of the truck a box of flags and some other articles outside the box. One of the articles was a stamp pad with the words "Fowler Drive School” on the outside. Subsequent investigation revealed that the Fowler Drive School had been burglarized and the numerous articles found in the truck (tape recorder, fire extinguisher, flags, staples, tape reels, pencils, etc.) had been taken from the school.

Appellant moved to suppress these articles from evidence on the ground that search of the truck and seizure of the articles violated his Fourth Amendment rights in that it was without a warrant, was not based on probable cause and was incident to an unlawful arrest. The trial court denied the motion and overruled appellant’s objections to the evidence on the same ground during the trial. The jury returned a verdict of guilty of burglary and from the judgment thereon appellant appeals. Held:

1. Appellant first contends that the police officers had no right to stop the truck for investigation, and that, because the detention was unlawful, the seizure which followed was unlawful. He cites Brooks v. State, 129 Ga. App. 109 (198 SE2d 892), wherein the police officer stopped appellant’s truck after it turned off the main highway onto a side road at 2:30 a.m. This court held that a bag of marijuana sticking out of appellant’s shirt pocket and seized by the police should have been suppressed. The only explanation for stopping the truck was that the policeman "suspected he [appellant] might be up to something that’s no good.” The court found that the two facts which might have prompted the detention, the lateness of the hour and the turning off the main road, were insufficient to give rise to an "articulable suspicion (less than probable cause, but greater than mere caprice) that the law has been violated, [and] the act of following and detaining a vehicle and its occupants must be judged as an impermissible intrusion on the rights of the citizen. Where this occurs, the penalty exacted by the law is that evidence turned up as a result of such intrusion may not be introduced against the defendant on the trial of his case.”

"It is clear that in cases where there are some reasonable articulable grounds for suspicion, the state’s interest in the maintenance of community peace and security outweigh the momentary inconvenience and indignity of investigatory detention.” Brisbane v. State, 233 Ga. 339, 343 (211 SE2d 294). It is also clear that what is a "reasonable articulable ground” for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. Brisbane v. State, 233 Ga. 339, 342, supra. Each case depends on its own facts. "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.” Anderson v. State, 123 Ga. App. 57, 61 (179 SE2d 286). Both Brooks and State v. Smith, 137 Ga. App. 101 (223 SE2d 30) are distinguishable on their facts.

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. In Brisbane v. State, 233 Ga. 339, supra, the court found the police were justified in stopping a car after it passed a service station a second time. See also Tanner v. State, 114 Ga. App. 35 (150 SE2d 189). In Connor v. State, 130 Ga. App. 74 (202 SE2d 200), this court held that the police were justified in stopping appellant’s car which was slowly cruising through a high school parking lot where frequent thefts had been reported. In Yawn v. State, 134 Ga. App. 77 (213 SE2d 178), this court held that a policeman had a right to stop appellant when he saw him driving away from a closed pool hall building at 4:45 a.m. In each of these cases the policeman’s stated purpose in stopping the vehicle was to check the driver’s license, or a "routine check” for identification under circumstances that appeared suspicious. In each case the court examined the facts and determined that the policeman’s suspicions were well-founded and that the detention was not arbitrary or harassing.

Here the officers observed a truck traveling along a dirt road after midnight in an area where recently several burglaries had taken place. One officer testified that he knew of three or four burglaries that had taken place adjacent to the dirt road within the past 6 or 8 months. In addition, a "pinball place,” which the police officers were checking out when the truck in which appellant was a passenger passed by, had been broken into twice. We cannot say that three males driving along a dirt road late at night in a high crime area does not give rise to an articulable ground for suspicion. " 'In Terry [Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889)] this court recognized that 'a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.’. .. The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response ... A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time.’ Adams v. Williams, 407 U. S. 143, 145 (92 SC 1921, 32 LE2d 612).” Cunningham v. State, 133 Ga. App. 305, 309 (211 SE2d 150).

2. Appellant further contends that even if the truck was lawfully stopped, the "plain view” rule cannot apply because the articles on the floorboard were not immediately identifiable as contraband. Cook v. State, 134 Ga. App. 712 (215 SE2d 728); Mobley v. State, 130 Ga. App. 80, 83 (202 SE2d 465). However, the coin collection in Cook and the bag in Mobley are clearly distinguishable from the stamp pad in the present case. The name of the school stamped on the pad made it apparent that it, and possibly the other articles, were property of the school.

Submitted July 6, 1976 Decided November 30, 1976 Rehearing denied December 17, 1976. J. H. Affleck, for appellant. Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.

For these reasons the trial court did not err in denying the motion to suppress, and in overruling appellant’s objections at trial.

Judgment affirmed.

Bell, C. J., Quillian, P. J., Stolz, Webb and McMurray, JJ., concur. Deen, P. J., Clark and Smith, JJ., dissent.