Thompson v. State , 248 Ga. 343 ( 1981 )

Smith, Justice,

dissenting.

The unconstitutionality of the arrest in the instant case cannot be seriously challenged. “There remains the question whether the connection between this unconstitutional police conduct and the incriminating statements and [evidence obtained from appellant’s home] ... was nevertheless sufficiently attenuated to permit [their] use at trial... [Cits.] ” Dunaway v. New York, 442 U. S. 200, 216 (99 SC 2248, 60 LE2d 824) (1979).

For Fourth Amendment purposes, appellant was seized when the police entered his home and arrested him without a warrant. Id. at 206-207. “[Although a confession after proper Miranda warnings may be found ‘voluntary’ for purposes of the Fifth Amendment, this type of‘voluntariness’ is merely a ‘threshold requirement’ for Fourth Amendment analysis . . .” Id. at 217.

“Brown identified several factors to be considered ‘in determining whether the confession is obtained by exploitation of an illegal arrest: [t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, . . . and, particularly, the purpose and flagrancy of the official misconduct... And the burden of showing admissibility rests, of course, on the prosecution.¹ Id. at 218.

It is undisputed that the arrest, “confession” and “consent” to search all took place around the same time. No “intervening circumstances” have been shown. The majority thus looks solely to the “purpose and flagrancy of the official misconduct.” It finds an “honest” mistake on the part of the police.

Honest or not, the mistake constituted flagrant misconduct in the constitutional sense. “The Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms: ‘The right of the people to be secure in their . . . houses . . . shall not be violated.’ That language unequivocally establishes the proposition that ‘ [a]t the very core (of the Fourth Amendment) stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.’ Silverman v. United States, 365 U. S. 505, 511. In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” Payton v. New York, 445 U. S. 573, 589-590 (100 SC 1371, 63 LE2d 639) (1980).

Applying the factors set forth in Brown to the facts of the instant case, I must conclude that the state has not carried its burden of showing that the “confession” and “consent” were not obtained by exploitation of an illegal arrest. I therefore respectfully dissent.

1 See Brown v. Illinois, 422 U. S. 590, 603-604 (95 SC 2254, 45 LE2d 416) (1975).