Sanders v. State

¶1dissenting.

¶2Without any question, the jury’s finding that David Sanders is guilty of murdering Sheila Hunnicutt is supported by the overwhelming weight of the evidence admitted at trial. That however is, unfortunately, not the legal issue.

¶3The legal issue which divides this court is the exclusionary rule.

¶4If that rule is applicable to the physical and testimonial evidence here involved, then a new trial must be granted but the admissible evidence would be *451insufficient to convict that person shown by the excluded evidence to be guilty of murder.

¶5The majority seek to avoid this unwanted result by finding that probable cause to arrest David Sanders existed at 11:30 a.m. on July 6.1 am unable to accept that finding because the sheriff testified that he did not have sufficient evidence to obtain an arrest warrant at that time. Moreover, the sheriff testified that before he questioned Sanders that evening, he did not think that David Sanders had committed the crime. Therefore, I am unable to find probable cause for the "arrest” at 11:30 a.m. and thus I am unable to concur in Division II of the per curiam opinion.

¶6On the other hand, implicit in the constitutional protections afforded criminal defendants is the right of a government to protect its citizens by securing convictions of those persons guilty of crimes against other citizens. It is acceptable to protect the rights of privacy of all citizens by freeing gamblers and smut peddlers. Weeks v. United States, 232 U. S. 383 (34 SC 341, 58 LE2d 652) (1914); Mapp v. Ohio, 367 U. S. 643 (81 SC 1684, 6 LE2d 1081) (1961). It is quite a different thing to "protect” citizens by freeing murderers. It is for the foregoing reasons that I am unable to join an absolutist dissent in this case.

¶7Being unable to agree with either the majority or the dissents, I would find that the arrest occurred Friday evening when David Sanders, after being advised of his Miranda rights (including his rights to counsel), told the sheriff he had gone to Hamm’s store for cigarettes, an assertion which the sheriff already knew to be false. At that point, coupled with other known information the sheriff had probable cause for arrest.1 Thus, the fingerprints, boots and trousers were legally taken that Friday evening. To me, an 8:30 p.m. arrest is consistent with the facts and is a determination which a court can make. It is also consistent with the sheriffs testimony *452given at the commitment hearing that he did not consider Sanders to be in custody until "About 8:30 that night when we started talking to him, when we had some restraint on him.”

¶8It is true that Sanders spent the afternoon and early evening in a room at the jail, but according to the testimony he was watching television. Moreover, the deputy was not sent to arrest Sanders at 11:30 a.m. He was sent to question his brother and then to bring Sanders to the office. The questioning of the brother prior to driving Sanders to town is, to me, consistent with the sheriffs testimony.

¶9Eight and a half unexplained hours is, indeed, a long time to wait at the jail to answer questions. However, the sheriff undoubtedly had plenty to do on the afternoon and evening of July 6. Unfortunately, the record does not provide a detailed account of all the sheriffs activities.2

¶10On the other hand, the evidence offered by the state which shows that Sanders was not arrested at 11:30 a.m. stands unrefuted by the evidence offered by the defendant.

¶11Based upon an 8:30 p.m. arrest with probable cause, I would find the fingerprints, boots and trousers admissible under the Fourth Amendment. Hence the incriminating statement would be admissible. I would find the hair samples taken Monday morning to be inadmissible under the Fourth Amendment.

¶12Turning to Georgia law, I would find the boots and trousers inadmissible under Georgia’s exclusionary statute, Code Ann. § 27-313 (a) (1). Insofar as Georgia’s exclusionary statute might be applicable to the fingerprints, see dissenting opinion of Mr. Justice *453Stewart in Davis v. Mississippi, 394 U. S. 721, 730 (89 SC 1394, 22 LE2d 676) (1968).

¶13I would reverse the conviction and remand this case for a new but meaningful trial. Although I concur in the first and third divisions of the per curiam opinion of the court, I respectfully dissent from the remainder of the opinion for the reasons stated above.