Davidson v. State ( 1972 )

Bell, Chief Judge.

The defendant was convicted of the possession of marijuana and he appeals. Held:

The defendant’s motion to suppress certain evidence in this case was overruled and he enumerates this as error. The defendant’s automobile and his person were searched and physcial evidence seized, viz., a pipe from the car and a quantity of marijuana from his person. All of this was accomplished without warrants to arrest or to search. The evidence reveals that defendant, who was accompanied by two other individuals, parked and locked his car on a public street in Carrollton, Georgia, and started walking down the street. They were stopped by policemen some 50 yards distant from the parked automobile and were required to get into the police car. A policeman present testified that he had observed none of these individuals performing any criminal activity. According to the State’s evidence the only justification advanced for this apprehension was that the city police had been earlier notified by the campus police of West Georgia College to be on the lookout for a car fitting the description of defendant’s because a college parking ticket had been placed on the car as it was not registered on campus and the campus police wanted to advise the defendant that he would have to pay the parking fine. After the defendant’s apprehension, the campus police were notified and a member of the force arrived at the scene. The defendant was required by the police to return to his car as the latter wanted to give the car a "routine check.” Defendant unlocked it and a "hash” pipe was found in the car. Then defendant’s person was searched and a quantity of marijuana was found.

The search and seizure in this case can only be justified if it was made incident to a lawful arrest. The curtailing of defendant’s locomotion by the city police officers under these facts constitutes an arrest. Code §27-201; Conoly v. Imperial Tobacco Co., 63 Ga. App. 880, 885 (12 SE2d 398). Under our statutory law an arrest without a warrant may only be made when an offense is committed in the presence of an officer; when the offender is endeavoring to escape; or for other cause where there is likely to be a failure of justice for the want of an officer to issue a warrant. Code § 27-207. See Section 1 of the Act approved March 16, 1966 (Ga. L. 1966, p. 567; Code Ann. § 27-301).

The issues and facts of this case are in all essentials identical with those in the case of MacDougald v. State, 124 Ga. App. 619 (184 SE2d 687). The defendant here and the defendant in MacDougald were in the same car; were walking down the street together when apprehended; were indicted by the same grand jury by identical indictments for the same offense; were tried in separate trials on the same day before the same judge; the same witnesses testified to the same thing in each of the trials, the only thing being different at all is that in MacDougald the defendant was searched in the police station where marijuana was found in his boot while the defendant here was searched just outside the automobile — and that is no material difference at all! Thus the holding in MacDougald is controlling and requires reversal. Here, as in MacDougald, there was no evidence that defendant was violating any law at the time of his arrest; no evidence of flight; and no evidence to authorize the arresting officer to arrest the defendant because there was likely to be a failure of justice if arrest was not made. The issuance of the earlier parking citation affords no basis for the arrest of defendant. Under these facts the defendant’s arrest was clearly unlawful. Thus the search cannot be justified as an incident of a lawful arrest. See Sibron v. New York, 392 U. S. 40 (88 SC 188920 LE2d 917), and Uva v. State, 124 Ga. App. 486 (184 SE2d 200).

Argued November 1, 1971 Decided February 17, 1972. Murray M. Silver, for appellant.

It was error for the trial court to overrule the motion to suppress the evidence as the search and seizure was unlawful and reversal is required.

Judgment reversed.

Jordan, P. J., Hall, P. J., Eberhardt, Deen, Evans and Clark, JJ., concur. Pannell and Quillian, JJ., dissent.