Harvey v. State , 266 Ga. 671 ( 1996 )

Benham, Chief Justice,

dissenting.

I concur fully with Justice Sears’s dissent and write separately to address the majority opinion’s treatment of State v. Stringer, 258 Ga. 605 (372 SE2d 426) (1988), and Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992).

The majority opinion’s attempt to distinguish Stringer on the ground that there was no stipulation in this case that the bench warrant was invalid is ineffective: though there is no stipulation here, there is no question of fact regarding the validity of the warrant. A stipulation contains no magic, but is merely a device to dispense with the need for formal proof. See Whatley v. State, 189 Ga. App. 173 (4) (375 SE2d 245) (1988). The uncontradicted evidence in this case that the warrant was invalid is the functional equivalent of the stipulation in Stringer and cannot serve to distinguish that case from this one. Just as there was no probable cause in Stringer other than the invalid warrant, there was no probable cause in this case.

The fact that there was an NCIC check in this case does not change the fact that here, as in Stringer, the warrant had been recalled. Paxton v. State, 160 Ga. App. 19 (1) (285 SE2d 741) (1981), the case cited in the majority opinion for the proposition that NCIC printouts provide probable cause for arrest, involved not an invalid arrest warrant, but information that the car the officer saw had been stolen. In that case, the officer was entitled to arrest without a warrant because the officer had reliable information that Paxton was at that time driving a stolen car. There was nothing to justify the arrest in the present case other than an invalid warrant. The effort to use this factor to distinguish Stringer from the present case ignores this Court’s holding in the last paragraph of Stringer: “Mere receipt of a bulletin or ‘computer hit’ does not provide probable cause justifying an arrest if the information in the computer system is inaccurate. [Cits.]”

The citation to Watts v. Cannon, 224 Ga. 797 (1) (164 SE2d 780) (1968), for the proposition that the arrest was lawful because the officer was “acting on reliable information that there was an outstanding felony warrant against Harvey” is inaccurate. The warrant in that case, so far as the opinion shows, was valid. The unavoidable fact, which the majority opinion seeks to avoid, is that the warrant in the present case was invalid and was the only reason for the arrest.

The majority opinion incorrectly states that “probable cause for [Harvey’s] warrantless arrest existed, . . . .” Since the actual basis for the arrest was the invalid search warrant, and no other basis for probable cause appears in this case, the majority opinion is bootstrapping — it finds the arrest to be supported by probable cause in the form of the arresting officer’s good-faith belief that the warrant was valid, then attempts to use that finding to distinguish this case from Stringer. The plain fact of this case is that this was not a warrantless arrest on probable cause. This case involved only an arrest on an invalid warrant, as did Stringer. As Justice Sears notes correctly in her dissent, “Stringer v. State requires this Court to hold that Harvey’s arrest pursuant to an invalid bench warrant constituted an arrest without probable cause. . . .”

Finally, I am compelled to note that the majority opinion, in its effort to avoid the effect of binding precedent without facing up to the necessity of overruling it, indulges in circular reasoning: the arrest pursuant to the warrant was invalid, but the search is valid if there was probable cause to arrest, and the warrant provided that probable cause. What the majority opinion asserts, in plain language, is that the warrant, although entirely invalid, provided sufficiént probable cause to arrest. That is plainly contrary to reason and to the law of this state.

The other feature of the majority opinion which I feel compelled to address is the mention of Gary v. State, 262 Ga. 573 (422 SE2d 426) (1992), followed by a holding which amounts to a sub silentio overruling of Gary. The reasoning leading to the holding that the arresting officer had probable cause to arrest is based on decisional authority taken out of context. The majority opinion quotes Singleton v. State, 194 Ga. App. 423 (1) (390 SE2d 648) (1990), as follows: “The radio transmission, which confirmed the outstanding warrants, established the necessary probable cause to arrest [Harvey]. [Cit.]” In Singleton, however, there was no question regarding the validity of the warrant. The quoted statement was made in that case to refute the appellant’s argument that the officers were required to have the warrants in their physical possession at the time of the arrest. That statement does not fairly stand, as the majority opinion used it, for the proposition that probable cause is established by information about the existence of a warrant which later proves to be invalid. If that were the holding in Singleton, it would be, as is the majority opinion, in direct opposition to Stringer and Gary.

This Court decided Gary less than three-and-one-half years ago. That decision was based on Georgia statutory law. If this Court is to turn around so quickly and overrule its holding in Gary, to abandon the principles stated in that case, it should do so honestly and forthrightly, not by purporting to honor it, and then deciding a case directly contrary to its principles. This case is governed by Stringer, which is directly on point, and by Gary, which clearly and directly rejected the process undertaken by the majority opinion. Under the existing decisional law of this state, the judgment of the Court of Appeals was erroneous and should be reversed.

I am authorized to state that Presiding Justice Fletcher and Justice Sears join in this dissent.