Flournoy v. State , 131 Ga. App. 171 ( 1974 )

Deen, Judge.

1. An arrest and search based only on information from a "reliable informer,” no facts being given to support this conclusion, and there being neither probable cause for arrest nor any warrant, is insufficient to allow the admission of contraband discovered as the result of such search. Kelly v. State, 129 Ga. App. 131 (198 SE2d 910); Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723); Spinelli v. United States, 393 U. S. 410 (89 SC 584, 21 LE2d 637).

2. One who accosts an individual who is violating no law so far as can be discerned by any of the senses, and holds him against his will, must be deemed to have seized the person of the defendant. Holtzendorf v. State, 125 Ga. App. 747 (188 SE2d 879); Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889); Brooks v. State, 129 Ga. App. 109 (198 SE2d 892).

3. Whether a consent to search is voluntary or the result of duress depends upon the facts of the individual case, but the burden is upon the state to demonstrate that the consent was in fact voluntarily given. Schneckloth v. Bustamonte, 412 U. S. 218 (93 SC 2041, 36 LE2d 854); Brand v. State, 129 Ga. App. 747 (201 SE2d 180).

4. Appellant Flournoy’s car was stopped by police officers at about 1:00 a.m. after one of them received a call from an unidentified source that she was on her way home from purchasing whiskey. They interrogated her and then asked permission to search the trunk of the car, which was refused. A radio call brought another police car whose officers kept her under guard while others went off in search of a warrant. After some ten minutes or so, the first officers not having returned and the defendant being alone, frightened, and upset, she consented for the trunk to be opened, and it was found to contain five quarts of tax-paid liquor. She was then taken to the police station, placed officially under arrest, and allowed to make bond, while the vehicle was seized for condemnation.

We agree with the appellant that under these circumstances and on the authority above cited there was no probable cause sufficient to support a search warrant had one in fact been sought, and no reason to believe that the defendant was in the act of absconding so as to bring her within the purview of Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543, 39 ALR 790) and other like automobile cases. The search without a warrant cannot be constitutionally justified nor was consent voluntarily given.

The trial court erred in overruling the motion to suppress.

Judgment reversed.

Bell, C. J, Quillian, Evans and Clark, JJ., concur. Hall, P. J., Eberhardt, P. J., Pannell and Stolz, JJ, dissent. Submitted January 16, 1974 Decided March 6, 1974. McMaster & Wommack, Robert W. Wommack, D. E. McMaster, for appellant. Thomas A. Hutcheson, Solicitor, for appellee.