McConnell v. State

Banke, Judge.

Appellants appeal their convictions for burglary, enumerating as error the denial of their motion to suppress evidence seized in the warrantless search of the automobile in which they were riding when arrested. The arresting officers, two Georgia state patrolmen, testified that around midnight on the date in question they received a radio call that a burglar alarm had gone off at a sporting goods store about a mile away from their location. As they proceeded in their patrol vehicle north to the store, a Buick Skylark with Tennessee license plates, driven by a black male, pulled out of a private driveway approximately 150 to 200 feet south of their destination. They had observed no other traffic at this late hour. The patrolman who was driving testified that he applied his brakes to avoid a collision. This occurred a minute after the alarm was received. The driveway from which the Skylark emerged was known by the officers to serve the residence of a white family. The state trooper noticed that there were two other black occupants in the vehicle. The patrolman proceeded on to the Sport Center where a broken window and merchandise scattered in the aisle confirmed that the alarm was genuine. They then reversed their path and pursued the Skylark. Although the automobile did not attempt evasive action, it did fail to stop immediately and continued onward for more than a mile at a slow speed before responding to the siren and blue lights. The appellants were arrested on suspicion of burglary. After their arrest, they were turned over to the Walker County Sheriffs Department. In accordance with standard operating procedure, the sheriffs department arranged to have the automobile towed in and impounded. The sheriffs deputies conducted an inventory search of the automobile and discovered 24 hand guns that had been stolen from the Sport Center.

The appellants concede that the state police were possessed of “specific and articulable facts” sufficient to make a brief investigative stop. See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 809) (1968). However, they contend that what followed the authorized “stop” was not the “minimal intrusion short of arrest” contemplated by Terry. We agree. They also contend that probable cause for their arrest and the subsequent search was lacking. We disagree.

A lesser standard of proof is required to establish probable cause than to prove guilt. Draper v. United States, 358 U. S. 307 (79 SC 329, 3 LE2d 327) (1958). “Probable cause for an arrest without a warrant exists where the facts and circumstances within the officers’ knowledge and of which they have reasonably trustworthy information are sufficient to give them reasonable ground to believe that the accused has committed a felony.” Carroll v. State, 142 Ga. App. 428, 429 (1) (236 SE2d 159) (1977).

“In dealing with probable cause... as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U. S. 160, 175 (69 SC 1302, 93 LE 1879) (1948). Although the mere presence of the defendants near the scene of the crime would not alone authorize their conviction, the fact that they were found departing a private driveway adjacent to the crime scene within a minute of the time of the alarm, combined with the additional circumstances as set forth above, provided reasonable grounds for the state troopers to believe that defendants had burglarized the Sport Center.

Submitted June 6, 1980

Decided November 26, 1980

Jon Bolling Wood, for appellant.

William M. Campbell, District Attorney, for appellee.

The stolen property was found in defendants’ automobile after the defendants had been arrested. As there was no person present to whom defendants’ vehicle might properly be turned over, law enforcement officers acted properly in impounding the vehicle and conducting an inventory of its contents. The evidence discovered in the course of the inventory was properly introduced at trial. Highland v. State, 144 Ga. App. 594, 595 (241 SE2d 477) (1978).

Judgment affirmed.

Deen, C. J., Quillian, P. J., McMurray,P. J., Shulman, Birdsong, Carley and Sognier, JJ., concur. Smith, J., dissents.