354 S.E.2d 650 | Ga. Ct. App. | 1987
Keith Lindsey, the defendant, appeals his conviction of the offenses of armed robbery and possession of a firearm during the commission of a felony. On Friday evening, October 18, 1985, Andre Bradford, a student at Morehouse College, was returning to the college campus when he came up behind two men. One of the men turned around, pointed a pistol at him, demanded his wallet and told him not to run or he would shoot. Bradford said the robber was approximately five feet from him when he made the demand, but then approached him, “clicked” the pistol, pointed it at his head and reached inside his pocket and removed his wallet. The robber’s com
1. Defendant alleges that the Atlanta University security police had no “probable cause to stop the defendant for questioning and have [Q]fficer Blackshear of Morehouse Security take a photograph of the defendant.” At approximately 5:30 a.m. on the morning of October 20, 1985, Officer Revere was on routine patrol when he saw a car which matched the description of a vehicle described in a “look out” bulletin as having been seen previously in an area where some robberies had been reported. He saw two black males in the car and one of them had an earring. The car departed and Revere called for assistance. When Revere saw the same car approximately five minutes later, the defendant was on the sidewalk beside it. Officer Revere said he notified the Atlanta police but they could not identify defendant. Officer Blackshear, Morehouse security, testified that he was called on the morning of October 20 to photograph the defendant in the Atlanta University security office. Officer Revere asked Blackshear if Morehouse had any robberies recently, that he had “picked up a suspect and he wanted the students to try to identify him.” After taking the photograph, Officer Blackshear examined his security records and found the report filed by Bradford. Bradford’s description of his robber matched the description of the defendant so Officer Blackshear took the defendant’s photograph to Bradford and asked him if he could identify the person. Bradford told him “that’s the man.”
We need not reach the issue of “probable cause” to arrest. Prior to trial, counsel for defendant filed a “Plea in Bar and Motion to Suppress Identification.” The grounds stated in the motion were lack of
In summary, defendant contends his detention was an arrest, that the arrest was illegal because it was without probable cause, and because the procedures used to identify him as the robber were in violation of his constitutional rights, his in-court identification should be prevented, the indictment dismissed, and his plea in bar of trial granted.
Under Mapp v. Ohio, 367 U. S. 643 (81 SC 1684, 6 LE2d 1081), the sanction for an unconstitutional search is the exclusion of evidence obtained during the search. Similarly, the sanction for an unconstitutional arrest is exclusion of any evidence obtained during the arrest. Lackey v. State, 246 Ga. 331, 333 (271 SE2d 478). A plea in bar of prosecution is not an authorized sanction for an unconstitutional arrest. Stallings v. Splain, 253 U. S. 339, 343 (40 SC 537, 64 LE 940). Hence, an illegal arrest, without probable cause, does not require release of the accused (United States v. Crews, 445 U. S. 463 (100 SC 1244, 63 LE2d 537)), but does require suppression of any physical evidence thereby obtained (Hayes v. Florida, 470 U. S. 811 (105 SC 1643, 84 LE2d 705)). Battle v. State, 254 Ga. 666 (3) (333 SE2d 599). Thus, in the instant case, while it is arguable that the
In the instant case, the testimony of Bradford at trial clearly showed that he based his in-court identification of the defendant upon the things he saw during the progress of the robbery. Bradford testified to the well-lighted area beside the church where he was robbed, that he “had face-to-face contact” with the defendant, and they were “about an inch apart,” when the robber reached in his pocket and removed his wallet. The defendant’s “face looked so vivid in my mind.” “I had eye-to-eye contact with him for a few minutes. . . .” The witness was “positive” and had “[n]o doubt at all.” Assuming arguendo an illegal arrest, it would not be a bar to prosecution (Hamby v. State, 173 Ga. App. 750 (328 SE2d 224); Worley v. State, 166 Ga. App. 794 (305 SE2d 485)), nor would it bar in-court identification where such identification is based on events surrounding the robbery (Manson v. Brathwaite, 432 U. S. 98 (97 SC 2243, 53 LE2d 140); Code v. State, 234 Ga. 90, 99 (214 SE2d 873); Anthony v. State, 160 Ga. App. 842, 844 (287 SE2d 686); Tate v. State, 153 Ga. App. 508, 509 (265 SE2d 818).
2. Defendant argues that the court erred “in not suppressing the out-of-court identification of the defendant and allowing testimony of the out-of-court identification during the in-court identification.” Counsel contends the “display of a single photo is impermissibly suggestive . . . [and] [l]ater that afternoon the defendant and the victim were in the same room together and in fact transported to the City of Atlanta Police Department in the same vehicle. . . . Therefore, the defendant’s in-court identification has been so tainted by the previous out-of-court identification, the in-court and out-of-court testimony should have been suppressed.”
Bradford admitted that he had been shown one photo of the defendant in his room, but denied that he saw the defendant when he went to the campus security office to pick defendant’s picture out of the photo show-up, and stated that all he could see of the defendant in the van on the ride to Atlanta Police headquarters was the back of his head.
Appellate courts continuously condemn one-on-one photo show-ups and confrontations between an accused and his accuser. Anthony, supra at 844. However, the occurrence of a one-on-one show-up, without more, does not necessarily require suppression of in-court identification. Neil v. Biggers, 409 U. S. 188, 198 (93 SC 375, 34 LE2d 401).
Judgment affirmed.