Powell v. StatePowell v. State
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Possession with intent to distribute marijuana. Powell contends on appeal that the trial court erred by denying his motion to suppress evidence, and that the evidence is not sufficient to support the verdict.
About 8:00 p.m., July 17, 1981 law enforcement officers had three marijuana patches in a wooded rural area under surveillance. Ellis, a GBI agent, saw appellant on a dirt road looking at the road and the ditches alongside the road; Ellis moved closer and noticed a pickup truck and appellant’s son standing by the truck. (At the time, Ellis had never seen Powell or his son before, and none of the other officers knew him or had seen him before.) Appellant returned to the truck and after driving along slowly, still looking at the road, departed. Ellis went into a field near the area where Powell stopped and saw about 100 marijuana plants which appeared to be freshly planted. He radioed Lieutenant Herrin, who picked up Ellis and three other officers. They followed the truck tracks which led to a compound known as the Bennett place. Herrin drove on and a short time later noticed a car behind him. He drove to Beach, Georgia, turned around and returned to the dirt road, which ran in a circle about five miles in circumference. A car approached and Herrin
Both Ellis and Herrin testified that at the time Powell was stopped on the road to Beach he had committed no crime in their presence and made no attempt to escape. On the contrary, he was very cooperative. Both Herrin and Ellis testified that when Powell was first stopped, his liberty was restrained and he was not free to depart; Herrin testified that Powell was under arrest at this time.
Powell contends that his warrantless arrest was illegal and, therefore, it was error to deny his motion to suppress evidence obtained as a result of his arrest. We agree.
Code Ann. § 27-207 (a) provides, in pertinent part: “An arrest for a crime may be made by an officer... without a warrant if the offense is committed in his presence, or the offender is endeavoring to escape ... or for other cause there is likely to be a failure of justice for want of an officer to issue a warrant.” Both Ellis and Herrin testified that Powell committed no crime in their presence and made no effort to escape. Further, there is nothing to indicate there would be a “failure of justice for want of an officer to issue a warrant.”
The marijuana patches were at least a mile from appellant’s residence, and were on land owned or leased by a timber company. Appellant was never observed in any of the patches or checking any side roads that led to the patches. In short, there was no evidence of any unlawful or criminal activity on the part of Powell at the time of his arrest, the police had never seen him before, and were unaware of his name or where he lived. In
Kelly v. State,
129 Ga. App. 131, 132 (1) (198 SE2d 910) (1973), we held: “In exigent circumstances such as the
In the instant case we find no probable cause to arrest appellant, as the only thing he was observed doing which might even be considered suspicious was walking along a road looking at it, and this hardly rises to the level of probable cause to believe he was in possession of marijuana with intent to distribute the same. This is particularly true in view of the fact that the law enforcement officials had never seen or heard of Powell, did not know where he lived and did not know who he was. Since there was no probable cause to arrest appellant and the objectionable evidence was seized as a direct result of, and immediately after, the illegal arrest, we must reverse the trial court’s denial of appellant’s motion to suppress. Bowers v. State, 151 Ga. App. 46 (258 SE2d 623) (1979). (See also the discussion On Motion for Rehearing in Bowers at page 50). “Evidence obtained under a void warrant [or illegal arrest] is evidence illegally obtained and it has been settled once and for all that the taint of illegal procurement forbids its use as evidence.” Garner v. State, 124 Ga. App. 33, 36 (182 SE2d 902) (1971); Kelly, supra, at 134 (3).
The state argues that appellant consented to the search of his premises and, thus, the evidence is admissible. At the time appellant allegedly consented to a search of his premises, he was surrounded by five law enforcement officers and had just been informed he was under arrest and advised of his rights. When appellant stated he would go into his house and get his identification he was informed that he could not go into his house unless accompanied by a police officer. It was at this point that Herrin asked for permission to search the premises, and he testified that appellant gave his permission.
We have held previously that “[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 request, he is indirectly forced to comply.”
Raif v. State,
109 Ga. App. 354, 358 (136 SE2d 169) (1964). Accord,
Holtzendorf v. State,
125 Ga. App. 747, 751 (188 SE2d 879) (1972);
Hunt v. State,
133
In view of our holding on this issue, we need not discuss the remaining enumerations of error.
Judgment reversed.
Deen, P. J., and Pope, J., concur.