Arbee v

Collins, 219 Ga. App. 63, 463 S.E.2d 922 (1995). Summary judgment was improperly granted in favor of the employer based on the employer procuring the employee’s false imprisonment when the employee was arrested by a detective because, although two of the loss prevention officers both averred that neither of the officers encouraged or directed the police to arrest the employee, the officers told a third loss prevention officer that the officers were going to obtain the employee’s arrest based on a videotape; there was a conflict in the evidence as to whether the employer directly or indirectly caused the police to arrest the employee; and a question of fact remained regarding whether the detective had probable cause to believe that the employee was involved in the theft or lied when denying being so involved. Smith v. Wal-Mart Stores East, LP, 330 Ga. App. 340, 765 S.E.2d 518 (2014). Summary judgment was improperly granted to the employer because a question of fact remained as to whether the employer procured the employee’s false imprisonment as there was a conflict in the evidence about whether the employer caused the detective to arrest the employee as the evidence did not show as a matter of law that the police made a sufficiently independent investigation of the theft; and because a question of fact remained as to whether the detective had probable cause to arrest the employee in connection with the theft as there was a dispute about whether the employee actually saw a person take the electronics out of a case and failed to report it, giving rise to a reasonable suspicion that the employee was working with the thieves. Smith v. Wal-Mart Stores East, LP, 330 Ga. App. 340, 765 S.E.2d 518 (2014). Neutral magistrate determination required before warrant for seizure of pornography. — Constitution at a 82 minimum requires the imposition of a neutral, detached magistrate in the procedure to make an independent judicial determination of probable cause prior to issuing an arrest warrant or some other warrant authorizing the seizure of allegedly obscene material to be used as evidence. Penthouse Int’l, Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir.), cert. dismissed, 447 U.S. 931, 100 S. Ct. 3031, 65 L. Ed. 2d 1131 (1980). Unreasonable attempt to arrest with unlicensed semi-automatic weapon. — There was no evidence that the defendant, who murdered the victim with a rifle, was attempting to effect a valid citizen’s arrest and, hence, the defendant was not entitled to an involuntary manslaughter charge. It was not reasonable for the defendant to attempt an arrest with a semi-automatic weapon which the defendant was not licensed to carry as deadly force in effecting an arrest is limited to self-defense or to a situation in which it is necessary to prevent a forcible felony. Hayes v. State, 261 Ga. 439, 405 S.E.2d 660 (1991). Off-duty officer employed as security guard. — There was evidence that the off-duty officer’s duties as a security guard included arresting disorderly persons to remove the persons from the premises, so it cannot be said as a matter of law that the arrest was lawful under O.C.G.A. § 17-4-20(a). Rather, whether the arrest was lawful as one made by a police officer is a jury question. Smith v. Holeman, 212 Ga. App. 158, 441 S.E.2d 487 (1994). ‘‘Deadly force’’ instruction given when police prosecuted. — In a prosecution against police officers for manslaughter, arising out of the shooting of the victim in a parking lot following a report that the victim had threatened someone with a knife, the justification charge given was wholly inadequate, as it applied to ordinary citizens, not to law enforcement officers acting in the line of duty, who are allowed to use deadly force on the reasonable belief that the suspect possesses a deadly weapon. Because this omission was harmful as a matter of law, the case was reversed, notwithstanding the fact that the charge was verbally requested after the jury began deliberating. 17-4-20 Robinson v. State, 221 Ga. App. 865, 473 S.E.2d 519 (1996). Use of deadly force not justified if fleeing suspect wanted only for traffic offense. — Deputy sheriff who rammed a fleeing suspect’s car causing injury to the suspect was not entitled to qualified immunity from suit alleging a violation of the Fourth Amendment right to be free from unlawful seizure because a reasonable officer would have known that a vehicle could be used to apply deadly force to effect a seizure, and that deadly force could not constitutionally be used to apprehend a fleeing suspect wanted only for speeding. Harris v. Coweta County, 406 F.3d 1307 (11th Cir. 2005). Arrest of passenger on warrant authorized stop of vehicle. — Trial court properly denied a defendant’s motion to suppress the evidence of drugs and a handgun found during the warrantless search of the defendant’s vehicle as the arrest of the defendant’s passenger on an outstanding warrant authorized the stop of the defendant’s vehicle and the mobility of the car, coupled with the existence of probable cause to believe the car contained marijuana, based on the officer smelling the marijuana upon approaching the vehicle, authorized the search. Somesso v. State, 288 Ga. App. 291, 653 S.E.2d 855 (2007), cert. denied, No. S08C0505, 2008 Ga. LEXIS 281 (Ga. 2008). Officer may arrest a suspect without an arrest warrant if an offense has been committed in the officer’s presence and while an officer generally must have a search warrant or consent to enter a home to make an arrest, an officer can enter a home to arrest a suspect when the officer has followed the suspect there in ‘‘hot pursuit.’’ A suspect may not defeat an arrest which has been set in motion in a public place . . . by the expedient of escaping to a private place. For Fourth Amendment purposes, one who is in the threshold of one’s dwelling is in a public place and not within the dwelling. Lawson v. State, 299 Ga. App. 865, 684 S.E.2d 1 (2009), cert. dismissed, No. S10C0118, 2010 Ga. LEXIS 195 (Ga. 2010), cert. denied, No. S10C0117, 2010 Ga. LEXIS 206 (Ga. 2010). 83 General Consideration (Cont’d) No grounds for challenge to arrest warrant. — Defendant failed to show trial counsel’s performance was deficient for failing to challenge the arrest warrant on the basis that the warrant was not properly sworn because the record showed that the defendant was taken into custody and arrested before the warrant was issued and there was a valid, warrantless arrest of the defendant, making the later-issued warrant superfluous; thus, any defect in the arrest warrant was moot, and a challenge to the arrest warrant would have been futile. Williams v. State, 326 Ga. App. 784, 757 S.E.2d 448 (2014). Trial court required to address tainted fruit rule. — Trial court erred by granting the defendant’s motion to suppress after concluding that the state failed to prove the legality of the defendant’s arrest for failing to tender the open container ordinance as the trial court was required to go on to address and rule on whether the drugs discovered during the subsequent search of the backpack in the vehicle constituted tainted fruit of the arrest based on the officers’ testimony regarding the smell of marijuana. State v. Alford, 347 Ga. App. 208, 818 S.E.2d 668 (2018). Cited in Glaze v. State, 156 Ga. 807, 120 S.E. 530 (1923); Seals v. State, 33 Ga. App. 818, 128 S.E. 224 (1925); Whitfield v. State, 51 Ga. App. 439, 180 S.E. 630 (1935); Griffin v. State, 183 Ga. 775, 190 S.E. 2 (1937); Booker v. State, 183 Ga. 822, 190 S.E. 356 (1937); Sheppard v. Hale, 58 Ga. App. 140, 197 S.E. 922 (1938); Murphy v. City of Atlanta, 64 Ga. App. 752, 14 S.E.2d 232 (1941); Newmans v. State, 65 Ga. App. 288, 16 S.E.2d 87 (1941); Bentley v. State, 70 Ga. App. 494, 28 S.E.2d 658 (1944); Cawthon v. State, 71 Ga. App. 497, 31 S.E.2d 64 (1944); Smith v. Glen Falls Indem. Co., 71 Ga. App. 697, 32 S.E.2d 105 (1944); Benford v. State, 73 Ga. App. 426, 36 S.E.2d 833 (1946); Moore v. State, 205 Ga. 37, 52 S.E.2d 282 (1949); Goodwin v. Allen, 89 Ga. App. 187, 78 S.E.2d 804 (1953); Hill v. Henry, 90 Ga. App. 93, 82 S.E.2d 35 (1954); Sharpe v. Lowe, 214 Ga. 513, 106 S.E.2d 28 (1958); Crosby v. State, 100 Ga. App. 49, 110 S.E.2d 94 (1959); 17-4-20 Savannah News-Press, Inc. v. Harley, 100 Ga. App. 387, 111 S.E.2d 259 (1959); Mullins v. State, 216 Ga. 183, 115 S.E.2d 547 (1960); Collins v. United States, 289 F.2d 129 (5th Cir. 1961); Pistor v. State, 219 Ga. 161, 132 S.E.2d 183 (1963); Pugh v. State, 219 Ga. 166, 132 S.E.2d 203 (1963); Hart v. United States, 316 F.2d 916 (5th Cir. 1963); Paige v. State, 219 Ga. 569, 134 S.E.2d 793 (1964); Raif v. State, 219 Ga. 649, 135 S.E.2d 375 (1964); Barron v. State, 109 Ga. App. 786, 137 S.E.2d 690 (1964); Walker v. State, 220 Ga. 415, 139 S.E.2d 278 (1964); Graham v. State, 111 Ga. App. 542, 142 S.E.2d 287 (1965); Harris v. State, 221 Ga. 398, 144 S.E.2d 769 (1965); Bloodworth v. State, 113 Ga. App. 278, 147 S.E.2d 833 (1966); McEwen v. State, 113 Ga. App. 765, 149 S.E.2d 716 (1966); Manuel v. United States, 355 F.2d 344 (5th Cir. 1966); Lovelace v. United States, 357 F.2d 306 (5th Cir. 1966); Henderson v. United States, 405 F.2d 874 (5th Cir. 1968); Crone v. United States, 411 F.2d 251 (5th Cir. 1969); Davidson v. State, 125 Ga. App. 502, 188 S.E.2d 124 (1972); Vaughn v. State, 126 Ga. App. 252, 190 S.E.2d 609 (1972); Bradford v. State, 126 Ga. App. 688, 191 S.E.2d 545 (1972); Patterson v. State, 126 Ga. App. 753, 191 S.E.2d 584 (1972); Barnwell v. State, 127 Ga. App. 335, 193 S.E.2d 203 (1972); Traylor v. State, 127 Ga. App. 409, 193 S.E.2d 876 (1972); Blair v. State, 230 Ga. 409, 197 S.E.2d 362 (1973); Brooks v. State, 129 Ga. App. 109, 198 S.E.2d 892 (1973); Brooks v. State, 129 Ga. App. 393, 199 S.E.2d 578 (1973); Brice v. State, 129 Ga. App. 535, 199 S.E.2d 895 (1973); Ivins v. State, 129 Ga. App. 865, 201 S.E.2d 683 (1973); Caito v. State, 130 Ga. App. 831, 204 S.E.2d 765 (1974); Jones v. State, 131 Ga. App. 699, 206 S.E.2d 601 (1974); Luke v. State, 131 Ga. App. 799, 207 S.E.2d 213 (1974); Meneghan v. State, 132 Ga. App. 380, 208 S.E.2d 150 (1974); Godwin v. State, 133 Ga. App. 397, 211 S.E.2d 7 (1974); McCorquodale v. State, 233 Ga. 369, 211 S.E.2d 577 (1974); Patterson v. State, 133 Ga. App. 742, 212 S.E.2d 858 (1975); Lawson v. State, 234 Ga. 136, 214 S.E.2d 559 (1975); Wright v. State, 134 Ga. App. 406, 214 S.E.2d 688 (1975); Sanders v. State, 235 Ga. 425, 219 S.E.2d 84 17-4-20 768 (1975); Little v. State, 136 Ga. App. 189, 220 S.E.2d 490 (1975); Lentile v. State, 136 Ga. App. 611, 222 S.E.2d 86 (1975); Mitchell v. State, 136 Ga. App. 658, 222 S.E.2d 160 (1975); Allen v. State, 137 Ga. App. 21, 222 S.E.2d 856 (1975); Pate v. State, 137 Ga. App. 677, 225 S.E.2d 95 (1976); Reeves v. State, 139 Ga. App. 214, 228 S.E.2d 201 (1976); Keating v. State, 141 Ga. App. 377, 233 S.E.2d 456 (1977); Quarles v. State, 142 Ga. App. 394, 236 S.E.2d 139 (1977); Floyd v. State, 142 Ga. App. 425, 236 S.E.2d 157 (1977); Carroll v. State, 142 Ga. App. 428, 236 S.E.2d 159 (1977); State v. Handspike, 240 Ga. 176, 240 S.E.2d 1 (1977); Johnson v. State, 143 Ga. App. 826, 240 S.E.2d 207 (1977); Smith v. State, 144 Ga. App. 785, 242 S.E.2d 376 (1978); Walker v. State, 144 Ga. App. 838, 242 S.E.2d 753 (1978); Reese v. State, 145 Ga. App. 453, 243 S.E.2d 650 (1978); Cook v. State, 145 Ga. App. 544, 244 S.E.2d 64 (1978); Dougherty v. State, 145 Ga. App. 718, 244 S.E.2d 638 (1978); State v. High, 145 Ga. App. 772, 244 S.E.2d 888 (1978); Morgan v. State, 241 Ga. 485, 246 S.E.2d 198 (1978); State v. Stone, 147 Ga. App. 192, 248 S.E.2d 228 (1978); Kiriaze v. State, 147 Ga. App. 832, 250 S.E.2d 568 (1978); Booker v. State, 242 Ga. 773, 251 S.E.2d 518 (1979); Parks v. State, 150 Ga. App. 446, 258 S.E.2d 66 (1979); Washington v. State, 245 Ga. 117, 263 S.E.2d 152 (1980); State v. Sanders, 154 Ga. App. 305, 267 S.E.2d 906 (1980); Baxter v. State, 154 Ga. App. 861, 270 S.E.2d 71 (1980); Starr v. State, 159 Ga. App. 386, 283 S.E.2d 630 (1981); Ellis v. State, 248 Ga. 414, 283 S.E.2d 870 (1981); Butler v. State, 159 Ga. App. 895, 285 S.E.2d 610 (1981); Nelson v. State, 160 Ga. App. 168, 286 S.E.2d 504 (1981); Blackwell v. State, 248 Ga. 138, 281 S.E.2d 599 (1981); Robertson v. State, 161 Ga. App. 715, 288 S.E.2d 362 (1982); Mobley v. State, 164 Ga. App. 154, 296 S.E.2d 617 (1982); Cornelius v. State, 165 Ga. App. 794, 302 S.E.2d 710 (1983); Collins v. Sadlo, 167 Ga. App. 317, 306 S.E.2d 390 (1983); Mines v. State, 167 Ga. App. 766, 307 S.E.2d 291 (1983); Bodiford v. State, 169 Ga. App. 760, 315 S.E.2d 274 (1984); Edwards v. State, 169 Ga. App. 958, 315 S.E.2d 675 (1984); Bowen v. State, 170 Ga. App. 49, 316 S.E.2d 33 (1984); Crews v. State, 170 Ga. App. 104, 316 S.E.2d 549 (1984); Powell v. State, 170 Ga. App. 185, 316 S.E.2d 779 (1984); Waits v. State, 172 Ga. App. 524, 323 S.E.2d 624 (1984); Parker v. State, 172 Ga. App. 540, 323 S.E.2d 826 (1984); Scott Hous. Sys. v. Hickox, 174 Ga. App. 23, 329 S.E.2d 154 (1985); Stansell v. State, 174 Ga. App. 511, 330 S.E.2d 441 (1985); Moore v. State, 174 Ga. App. 826, 331 S.E.2d 115 (1985); Ridley v. State, 176 Ga. App. 669, 337 S.E.2d 382 (1985); Rogers v. State, 256 Ga. 139, 344 S.E.2d 644 (1986); Minor v. State, 180 Ga. App. 869, 350 S.E.2d 783 (1986); Young v. City of Atlanta, 631 F. Supp. 1498 (N.D. Ga. 1986); Parrish v. State, 182 Ga. App. 247, 355 S.E.2d 682 (1987); Robinson v. State, 182 Ga. App. 423, 356 S.E.2d 55 (1987); Harley v. State, 183 Ga. App. 253, 358 S.E.2d 653 (1987); Ferguson v. City of Doraville, 186 Ga. App. 430, 367 S.E.2d 551 (1988); Roberson v. State, 186 Ga. App. 808, 368 S.E.2d 568 (1988); Dorsey v. State, 187 Ga. App. 725, 371 S.E.2d 207 (1988); Arnold v. State, 198 Ga. App. 514, 402 S.E.2d 312 (1991); Mitchell v. State, 200 Ga. App. 146, 407 S.E.2d 115 (1991); Lufburrow v. State, 206 Ga. App. 250, 425 S.E.2d 368 (1992); Watkins v. State, 206 Ga. App. 575, 426 S.E.2d 26 (1992); State v. Weathers, 234 Ga. App. 376, 506 S.E.2d 698 (1998); Schroeder v. State, 261 Ga. App. 879, 583 S.E.2d 922 (2003); Hight v. State, 293 Ga. App. 254, 666 S.E.2d 678 (2008); Ferrell v. Mikula, 295 Ga. App. 326, 672 S.E.2d 7 (2008). Grounds for Warrantless Arrest 1. In General Three exceptions to having warrant for any public officer. — Only three exceptions to the general rule that the law requires a warrant in order to render an arrest legal, whether the arrest be made by a police officer or any public officer, are recognized by this section. Thomas v. State, 91 Ga. 204, 18 S.E. 305 (1892); Graham v. State, 143 Ga. 440, 85 S.E. 328, 1917A Ann. Cas. 595 (1915). Arrest illegal if not under three exceptions. — Unless an arrest without a warrant falls within the three exceptions specified in this section, it is an illegal 85 Grounds for Warrantless Arrest (Cont’d) 1. In General (Cont’d) arrest. Conoly v. Imperial Tobacco Co., 63 Ga. App. 880, 12 S.E.2d 398 (1940). When warrantless arrest permitted. — An arrest for a crime may be made by an officer without a warrant in three instances only: (1) if the offense is committed in the official’s presence; or (2) the offender is endeavoring to escape; or (3) for other cause there is likely to be a failure of justice for want of an officer to issue a warrant. Napier v. State, 200 Ga. 626, 38 S.E.2d 269 (1946); Finch v. State, 101 Ga. App. 73, 112 S.E.2d 824 (1960); Puckett v. State, 239 Ga. App. 582, 521 S.E.2d 634 (1999). Warrantless arrest is not violative of O.C.G.A. § 17-4-20 if the officer had probable cause to make an arrest, i.e., if the officer knew facts and circumstances, based on reasonably trustworthy information, sufficient to warrant a prudent man to believe that the defendant committed an offense. Ellis v. State, 164 Ga. App. 366, 296 S.E.2d 726 (1982), appeal dismissed, 462 U.S. 1113, 103 S. Ct. 3079, 77 L. Ed. 2d 1344, cert. denied, 462 U.S. 1119, 103 S. Ct. 3087, 77 L. Ed. 2d 1348 (1983); State v. Thurmond, 203 Ga. App. 230, 416 S.E.2d 529, cert. denied, 203 Ga. App. 907, 416 S.E.2d 529 (1992). If a police officer has probable cause to believe that the defendant made terroristic threats, the officer’s arrest and pat-down search of the defendant were lawful. Medlin v. State, 168 Ga. App. 551, 309 S.E.2d 639 (1983). Warrantless arrest of the defendant for a domestic violence act of assault, given the information provided by the defendant’s girlfriend, the girlfriend’s obvious injuries, and the defendant’s attempt to flee, was supported by sufficient probable cause and thus upheld on appeal. Rivers v. State, 287 Ga. App. 632, 653 S.E.2d 78 (2007). Arresting officer’s knowledge. — It is the facts and circumstances existing within the knowledge of the arresting officer at the moment arrest is made which are controlling. Barnett v. State, 204 Ga. App. 491, 420 S.E.2d 43 (1992). 17-4-20 Felony charges from foreign state. — General Assembly by the enactment of Ga. L. 1951, p. 726, § 14 (see O.C.G.A. 17-13-34), provided that an arrest without a warrant might be lawfully made by any peace officer upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding one year. Fields v. State, 211 Ga. 335, 85 S.E.2d 753 (1955); Peterkin v. State, 147 Ga. App. 437, 249 S.E.2d 152 (1978). Arrest meeting the constitutional requirements of probable cause is valid whether or not O.C.G.A. § 17-4-20 is violated. Quick v. State, 166 Ga. App. 492, 304 S.E.2d 916 (1983). Subsequent guilt or innocence does not determine legality of arrest. — Fact that the defendant is found not guilty of a charge is immaterial as to the legality of the arrest because it is not necessary that the accused be found guilty for the arrest may still be lawful. Brooks v. State, 166 Ga. App. 704, 305 S.E.2d 436 (1983). Warrantless search legal under federal law is legal under state law. — Warrantless arrest legal under federal law—that is, one made on the basis of probable cause—is legal under state law, and the requirements of O.C.G.A. § 17-4-20 and federal law are the same. State v. Thurmond, 203 Ga. App. 230, 416 S.E.2d 529, cert. denied, 203 Ga. App. 907, 416 S.E.2d 529 (1992). Person under investigation subject to arrest without warrant on probable cause. — When the offender knows that the offender is under investigation, a police officer, once the officer finds probable cause for arrest, is justified in proceeding directly to arrest the offender without first obtaining a warrant. Fitzgerald v. State, 166 Ga. App. 307, 304 S.E.2d 114 (1983). Arrest inside suspect’s home. — Warrantless arrest may be made inside a suspect’s home only with the suspect’s consent or under exigent circumstances. Mincey v. State, 251 Ga. 255, 304 S.E.2d 882, cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983). When a suspect is telephonically requested to exit the suspect’s home and voluntarily does so, the suspect’s ar- 86 rest, outside the suspect’s home, by officers who have probable cause to believe that the suspect has participated in a felony is constitutionally valid. Mincey v. State, 251 Ga. 255, 304 S.E.2d 882 (1983), cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983). Probable cause for an arrest without a warrant exists when the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a belief by a person of reasonable caution that a crime has been committed. Cornelius v. State, 165 Ga. App. 794, 302 S.E.2d 710 (1983). When at the time the defendant was arrested one officer had been told by the victim what happened and that the officer radioed other officers to alert the officers to look for the defendant and the defendant’s vehicle, based on that information, another officer properly placed the defendant under arrest. Gilbert v. State, 209 Ga. App. 483, 433 S.E.2d 664 (1993). Grounds must be more than arbitrary harassment. — What is a reasonable articulable ground for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. State v. Thurmond, 203 Ga. App. 230, 416 S.E.2d 529, cert. denied, 203 Ga. App. 907, 416 S.E.2d 529 (1992). Probable cause that an act of family violence had been committed. Clark v. State, 180 Ga. App. 280, 348 S.E.2d 916 (1986). Uncontradicted testimony of the police witness concerning the victim’s statement accusing the victim’s spouse of stabbing the victim, the presence of a stab wound on the victim’s back, the presence of several weapons, and the disordered condition of the scene clearly established that the officers had probable cause to believe that an act of family violence had occurred. Watkins v. State, 183 Ga. App. 778, 360 S.E.2d 47 (1987). Wife’s statement to officers that her husband had struck her provided probable cause to arrest the defendant, and since the offense which the officers had probable cause to believe had been committed was an act of family violence, a warrantless arrest was authorized. McCauley v. State, 222 Ga. App. 600, 475 S.E.2d 669 (1996). 17-4-20 Victim’s on-the-scene accusations against the defendant, along with ‘‘visible bodily harm’’ to the victim’s face, provided sufficient probable cause to believe that the defendant had committed battery, and it was unnecessary for the officer to investigate the defendant’s explanation of the domestic dispute as required by O.C.G.A. § 17-4-20.1. McCracken v.