Summary
In Clark v. State, 131 Ga. App. 583 (2) (206 S.E.2d 717) (1974), it was held: "When the detective advised defendant at the scene that he was a police officer, and defendant reached in his pocket, the detective had a right to stop and frisk defendant in order to protect himself," citing Terry.
Summary of this case from Pace v. StateOpinion
49141.
SUBMITTED MARCH 6, 1974.
DECIDED APRIL 9, 1974.
Drug violation. Fulton Superior Court. Before Judge Alverson.
James R. McGraw, for appellant.
Lewis R. Slaton, District Attorney, Raoul Lerow, Morris H. Rosenberg, for appellee.
Defendant was convicted for violation of the drug abuse act. He was sentenced to serve a term of four years. Motion for new trial was denied. Defendant appeals. Held:
1. No motion was made to suppress the evidence (narcotics) or the testimony in regard thereto. There was no error in allowing in evidence testimony in regard to drugs found at the scene of the arrest. See Gilmore v. State, 117 Ga. App. 67 (2) ( 159 S.E.2d 474). The officers had ample authority under Code § 27-207 to investigate, believing a crime had occurred or was about to occur in their presence. Novak v. State, 130 Ga. App. 780 ( 204 S.E.2d 491).
2. When the detective advised defendant at the scene that he was a police officer, and defendant reached in his pocket, the detective had a right to stop and frisk defendant in order to protect himself. The officer struggled with defendant and was justified, as he thereby sought to defend himself. After that, defendant threw the drugs away from his person. We find no evidence of illegal arrest. Terry v. Ohio, 392 U.S. 1 ( 88 SC 1868, 20 L.Ed.2d 889), allows officers who see persons acting suspiciously (such as here) to stop and investigate, including "stop and frisk." See also Adams v. Williams, 407 U.S. 143 ( 92 SC 1921, 32 L.Ed.2d 612).
3. The credibility of the witnesses is for jury determination under Code § 38-1805. Union v. State, 7 Ga. App. 27 (2) ( 66 S.E. 24); Brown v. State, 10 Ga. App. 50 (2) ( 72 S.E. 537). The evidence submitted was sufficient to support the verdict of guilty.
4. The officer attempted to detain defendant, who then deliberately threw a package away. The package bounced off a brick wall, and was found and illegal drugs were discovered therein. The officer was not afforded sufficient time to advise defendant of his rights during the altercation, especially as defendant's possession of the drugs was learned by the officer at the scene of the crime and during such altercation. Miranda v. Arizona, 384 U.S. 436 ( 86 SC 1602, 16 L.Ed.2d 694, 10 ALR3d 974), has no application here.
Further, no defense motion was made in respect to the propriety of warnings to the defendant; hence, any alleged error in regard thereto was waived. Starr v. State, 229 Ga. 181 (1), 183 ( 190 S.E.2d 58); Mallory v. State, 230 Ga. 657 (2) ( 198 S.E.2d 677).
Judgment affirmed Eberhardt, P. J., and Pannell, J., concur.