State v. Brown

Deen, Presiding Judge,

dissenting.

I must respectfully dissent.

An unlawful arrest or seizure does not bar a criminal prosecution. Lackey v. State, 246 Ga. 331, 333 (271 SE2d 478) (1980); Mortimer v. State, 177 Ga. App. 679, 680 (340 SE2d 649) (1986); Thompson v. State, 175 Ga. App. 645, 648 (334 SE2d 312) (1985). The trial court therefore was not authorized to dismiss the indictment because of the defendant’s wrongful detention, seizure, and arrest at the airport.

Appellee argues that his motion to dismiss was properly granted because he was being prosecuted for something new, in that the indictment in question did not pertain to the cocaine found near the chair where he was sitting when he was detained at the airport. I must disagree. There was only one indictment, and it charged him with possession of cocaine. It did not specify that he was being charged only with possession of the cocaine found on his person as opposed to the cocaine found on the chair near where he was seated. Both quantities of cocaine were seized at the same time, and he was charged with possession of both packages. The cocaine found on his person was ordered suppressed by this court in Brown v. State, 191 Ga. App. 779 (383 SE2d 170) (1989). That case specifically points out that appellant stipulated at the suppression hearing that he was not contesting the admissibility of the cocaine found near his chair. As the defendant did not contest the admissibility of this evidence and the indictment merely charged him with possession, rather than a specific type of possession, he can be tried on this charge.

Decided December 5, 1990 Rehearing denied December 20, 1990 Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellant. Joseph A. Maccione, for appellee.

Accordingly, the judgment of the trial court should be reversed.

I am authorized to state that Judge Birdsong joins in this dissent.