concurring specially.
I concur in the judgment only, because with respect to Division 1, I am puzzled by the conclusion that “the constitutional requirement of probable cause was met.” Defendant did not properly raise a constitutional challenge on appeal, but only expressly invoked the Georgia statute (currently OCGA § 17-4-20). Although near the end of his argument he uses the “probable cause” language and a partially-federal, partially-state articulated test found in the state case of Harris v. State, 128 Ga. App. 22 (195 SE2d 262) (1973), that case also for an unclear reason discusses “probable cause” when the claim is based on an alleged violation of the statute. It appears to engraft probable cause into an analysis of whether a crime is committed “within the immediate knowledge” category of statutorily-allowed warrantless arrests. That is, it must be “probable cause” knowledge, not absolute or certain knowledge.
If defendant is raising in this court a constitutional as well as a statutory basis for enumerating as error the denial of the motion to suppress, then which constitution and what provision? Merely asserting in the enumeration that the arrest was “unconstitutional,” and arguing that a test which used constitutional law language to construe a statute whose violation was claimed in the case in which it was stated, should not be regarded as sufficient to raise a constitutional *829challenge.
Decided May 22, 1985. Tony L. Axam, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Robert A. Weathers, Richard E. Hicks, Assistant District Attorneys, for appellee.Even if the issue is regarded as properly raised, and we decide that “the constitutional requirement of probable cause was met,” I do not see how that makes the arrest valid “whether or not OCGA § 17-4-20 (a) was violated.” If the statute was violated, the arrest was unlawful according to state law, without ever reaching the question of constitutionality, be it state constitution or federal constitution. That is, just because an act does not offend the constitution does not ipso facto render it legal despite its noncompliance with a statute. As is often the case, the statute may require more or something different than does the constitution, or even less.
Citing Quick v. State, 166 Ga. App. 492 (2) (304 SE2d 916) (1983), only exacerbates the problem. I grant that it says what the majority opinion in this present case cites it for. But it makes the statute absolutely meaningless when we say that it does not matter if it was violated, and what is worse, we completely abdicate our responsibility to apply state law and the state constitution independently, and to construe them independently, when we say as said in Quick v. State, “[a]n arrest and search, legal under federal law, are legal under state law.” Id. at 494.
I do not believe we should promote this departure from federalism.