Raif v. State , 109 Ga. App. 354 ( 1964 )

Nichols, Presiding Judge.

1. These cases were tried under the law enunciated in Winston v. State, 79 Ga. App. 711 (2a) (54 SE2d 354), and the cases there cited which held: “Although evidence against a defendant in a criminal case may be obtained by peace officers in the course of an unlawful, unwarranted, unreasonable, and reprehensible search of the home of the defendant, in a flagrant violation of the Fourth Amendment of the Federal Constitution and article 1, section 1, paragraph 16 of the Constitution of the State of Georgia, this does not affect the admissibility of the evidence thus obtained. Williams v. State, 100 Ga. 511 (1) (28 SE 624, 39 LRA 269).”

Judge Townsend, in that case, recognized the effect of such decisions and, speaking for himself and not for the court, said: “These decisions have had the effect of making but an empty shell of what was intended by the framers of these great guaranties of liberty to be the living seed of freedom. The Bills of Bights were ordained and established to protect the citizen against his public officers. A part of the first provision of the Constitution of the State of Georgia (article 1, section 1, paragraph 1) provides as follows: ‘Public officers are the trustees and servants of the people, and at all times amenable to them.’ The foregoing decisions of our Supreme Court, coupled with the law not in conflict therewith, say in effect to the peace officers of this State, ‘You shall not make an unreasonable search and seizure of the home of a citizen, because his home is his castle. The breaking down of his door is a trespass for which you are responsible both civilly and criminally. An unlawful search and seizure by you amounts to a violation of the most sacred rights given under our organic law. However, if you do make such a search, bring the evidence you thus obtained into a court of justice, and it will be given the same consideration as evidence honorably obtained.’ ”

At the time the Winston case and other similar cases were decided the decisions of the U. S. Supreme Court permitted each State to determine if such illegally obtained evidence was admissible in the courts of that State. See Wolf v. Colorado, 338 U. S. 25 (69 SC 1359, 93 LE 1782). And following such decisions this court in Winston and similar cases followed the decisions of the Supreme Court of Georgia. Since that time the U. S. Supreme Court has repudiated its decision in the Wolf case and in Mapp v. Ohio, 367 U. S. 643 (81 SC 1684, 6 LE2d 1081) held that evidence obtained as a result of an illegal search and seizure is not admissible in either Federal or State courts. See also Fahy v. Connecticut, 375 U.S. 85 (84 SC 229, 11 LE2d 171). Thus, under such decision evidence obtained under an illegal arrest is not admissible in state courts. In Ker v. California, 374 U. S. 23 (83 SC 1623, 10 LE2d 726), it was decided that evidence obtained in connection with a legal arrest was admissible although obtained from the defendant’s home without a search warrant and although the arrest was made without a warrant. The officer there had reasonable grounds to believe an offense was being committed and such case is of course distinguishable from the present case where there was no evidence that the defendants were violating any law or municipal ordinance at the time of the arrest, no evidence of flight, and no evidence to authorize the arresting officer to arrest the defendants because there was likely to be a failure of justice if the arrest was not made. See Code § 27-207. The arresting officers, according to the evidence, did not know of the particular crime having been committed and there was no evidence that such arrests were made because the officers had reasonable grounds to suspect that they had committed a felony. Mere suspicion that some crime, which would include a misdemeanor, may have been committed is insufficient to authorize an arrest without a warrant, and Code Ann. § 27-212 which requires that when an arrest shall be made without a warrant the person making the arrest shall without delay convey the offender before the most convenient officer authorized to receive an affidavit and issue a warrant (and that no such imprisonment shall be legal beyond 48 hours), presupposes a legal arrest without a warrant and such Code section cannot be used as a basis for legitimatizing an otherwise illegal arrest. There is no authority in Georgia under which a citizen may be arrested without a warrant and held for investigation to determine if he has committed some crime merely because the person making the arrest has a suspicion that the person arrested may have committed some then unknown crime.

The arrests were illegal and if the evidence obtained after such illegal arrests from the defendants was not voluntarily given then, under the Mapp case, supra, such evidence being the fruits of an illegal search and seizure of the persons, was inadmissible. The police officers, who obtained such evidence, testified they merely asked the prisoners for the evidence and they gave it to them. It is contended that such evidence was freely and voluntarily furnished by the defendants and under such circumstances was admissible. In reply to this contention it is only necessary to refer to the language of Justice Lumpkin in Chattahoochee Brick Co. v. Braswell, 92 Ga. 631, 634 (18 SE 1015): “The plaintiff was a convict, and according to the evidence, his movements were absolutely controlled and directed by a guard, or ‘boss,’ whose orders he was compelled to obey. This guard had and exercised over him the most complete dominion and authority. The plaintiff’s position, so far as the power of the guard was concerned, was more that of a slave than a mere servant, and it is apparent that he dared not disobey any of the guard’s commands.” A prisoner in police custody by reason of an illegal arrest is in no position to refuse to comply with the demands of the officer in whose custody he is placed whether such demand is couched in the language of a polite request or a direct order. If a command, the prisoner is directly forced to comply, and if a request, he is indirectly forced to comply.

As previously shown, the arrests were illegal, and the defendants were directly or indirectly forced to furnish such evidence. Thus the question is presented as to whether the law exemplified in the holding in the Winston case, supra, following prior decisions of the Supreme Court of Georgia is binding upon this court or whether the interpretation placed on the Fourth, Fifth and Fourteenth Amendments of the U. S. Constitution by the Supreme Court of the United States in the Mapp case, supra, is controlling.

This court is bound by the decisions of the Supreme Court of Georgia (Constitution of 1945, Art. VI, Sec. II, Par. VIII; Code Ann. § 2-3708), and under the decision of the Supreme Court in Watkins v. State, 199 Ga. 81, 88 (33 SE2d 325), as to interpretation of the Constitution of the United States by the Supreme Court of the United States, the Supreme Court of Georgia is bound by such decisions, for as was there said: “In Padelford v. Savannah, 14 Ga. 438, may be found the statement that 'The Supreme Court of Georgia is co-equal and co-ordinate with the Supreme Court of the United States; and therefore the latter cannot give the former an order, or make for it a precedent.’ Judge Benning’s reasoning in that case is buttressed by many expressions from outstanding statesmen and jurists who flourished in the dawn of the republic, and is based on a concept that was common to leading men of all sections in the earlier days; yet, as time rolled on, the very stars in their courses seemed arrayed against the plan of the founding fathers. One is sometimes led to wonder if the States, once sovereign, have not become, from a practical standpoint, under the expanding powers of the Federal government, the exercise of which has been sanctioned by the Supreme Court of the United States under its interpretation of the powers delegated by the States, little more than geographical subdivisions of a consolidated government, with but a minimum of authority to regular their own internal affairs, and shorn of power to deal with their own domestic problems in their own way. Views similar to those uttered by the Georgia judge in Padelford v. Savannah, supra, were expressed by Chief Justice McKean of Pennsylvania in Respublica v. Cobbet, 3 Dallas, 467, and by the great Judge Spencer Roane of the Supreme Court of Appeals of Virginia in Hunter v. Martin, 4 Munford (18 Va.) 1. Nor were such opinions foreign to the courts of Massachusetts, Ohio, Wisconsin, California, Missouri, and Illinois. Weatherbee v. Johnson, 14 Mass. 417; Johnson v. Gordon, 4 Cal. 368; In re Booth, 3 Wis. 1, 49; Knoup v. Piqua Branch of State Bank, 1 Ohio St. 603; Chadwick v. Moore, 8 Watts & Serg. (Pa.) 49 (42 AD 267). To recall how prevalent such statements were at one time in various sections of the country, as found in court decisions, resolutions of State legislators, and the deliverances of representatives and senators on the floor of the American Congress, one has but to acquaint himself with Warren’s The Supreme Court in United States History. But such language as was contained in the Georgia case referred to above to-day sounds like a voice from the tomb. Indeed one who went to battle for four years, seeking to maintain the principle on which that pronouncement rests, observed with reference to that opinion as follows: ‘The war killed that decision as it did the one in the Dred Scott case, and both are buried in the same grave.’ Report of Georgia Bar Association (1909), pp. 132, 134. The writer referred, of course, to the controlling pronouncement in that decision which was that the Supreme Court of Georgia had the right to decide for itself whether or not a municipal ordinance, or an act of the General Assembly, was a violation of the Constitution of the United States, regardless of the interpretation placed thereon by the Federal Supreme Court. A similar thought to that contained in the words quoted was in the mind of Chief Justice Bleckley when, speaking for this court in Wrought Iron Range Co. v. Johnson, 84 Ga. 754 (11 SE 233, 8 LRA 273), he said: ‘After the State has yielded to the Federal army, it can very well afford to yield to the Federal judiciary. . . The doctrine of co-equality and co-ordination between the Supreme Court of Georgia and the Supreme Court of the United States, so vigorously announced by Benning, J., in Padeljord v. Savannah, 14 Ga. 439, regarded now from a practical standpoint, seems visionary. Its application to this, or any like case, would be a jarring discord in the harmony of law. Moreover, any attempt to apply it effectively would be no less vain than discordant. When we know with certainty that a question arising under the Constitution of the United States has been definitely decided by the Supreme Court of that government, it is our duty to accept the decision, for the time being, as correct, whether it coincides with our opinion or not. Any failure of due subordination on our part would be a breach, rather than the administration, of law.’ It needs scarcely to be added that this court, when a question arises as to the construction of a portion of the Constitution of the United States, or a statute enacted in pursuance thereof, feels it to be its duty to follow, as binding precedents, the adjudications of the Supreme Court of the United States. State v. Atlantic & Gulf Railroad Co., 60 Ga. 268; Georgia Railroad v. Cubbedge, 75 Ga. 321; Murray v. Miller, 157 Ga. 11 (121 SE 113); Slicer v. State, 168 Ga. 566 (148 SE 385).” Accordingly, the law as exemplified in the Winston case, supra, and similar cases decided by this court and the Supreme Court of Georgia is no longer the law and we are bound to follow the interpretation of the Supreme Court of the United States in the Mapp case, supra, as to the admissibility of evidence obtained by an illegal search and seizure resulting from an illegal arrest. See Scott v. State, 14 Ga. App. 806, supra, and Pickett v. State, 99 Ga. 12,15 (25 SE 608, 59 ASR 226).

Therefore, the judgment overruling the special grounds of the amended motion for new trial which complained of the admission of evidence obtained from the defendants by an illegal search and seizure while they were under an illegal arrest must be reversed.

2. Other special grounds of the motion for new trial present questions which will probably, in view of the ruling in the first division of the opinion, not recur on another trial of the case and therefore will not be passed upon. In as much as the evidence may not be the same on another trial the usual grounds of the motion for new trial are not passed upon.

Judgments reversed.

Felton, C. J., Frankmn, Hall, Eberhardt, Russell and Pannell, JJ., concur. Bell, P. J., and Jordan, J., dissent.