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WILLIAMS et al. v. THE STATE.
65446.
CARLEY, Judge.
Burglary. Liberty Superior Court. Before Judge Harvey.
Appellants were convicted of burglary. They appeal from the judgment of conviction and sentence entered on the guilty verdict.
1. Appellants enumerate as error the denial of their motion to suppress. The evidence adduced at the hearing on the motion to suppress showed the following: The victim lives on a dead end road in a sparsely populated area of Lake George. He returned home one evening to find that his house had just been burglarized. He noticed tire tracks in his yard leading to the road, and then immediately saw a Buick with a missing taillight pass on the road outside his home. The Buick was coming from the direction of the dead end. The victim and a companion then left in the victim's automobile and soon again encountered the Buick as it was leaving Lake George via the only road leading to and from the area. The victim then followed the Buick which had been outside his house at or near the time the burglary had been discovered. The victim interrupted his pursuit at a roadside gas station long enough to let his companion out to inform a police officer parked there of the burglary. The companion related the entire series of events to the officer and described the articles taken in the burglary. The police officer joined the pursuit and pulled over the then speeding Buick. The appellants were asked to step behind the car. The victim arrived at the scene and described to the officer the items which had been taken from his home, including a stereo. As appellants stepped behind the automobile, the police officer noticed stereo speaker wires hanging from the trunk. Appellants at this time refused to consent to a search of the trunk and they were placed in the police officer's patrol car. By this time, other police officers began to arrive at the scene. The police officers testified that, as they were waiting for a wrecker to arrive, appellant Williams summoned an officer and asked if it would be better if he went along with the police. According to the officers, appellant then voluntarily opened the trunk. Appellants, however, assert that the police officers demanded that the trunk be opened. In the trunk were items matching the description of those taken from the victim's home, which the victim then positively identified as his.
On this evidence, no challenge is raised to the authority of the police officer to stop and briefly detain appellants in the speeding Buick. Instead, appellants assert that the police officers lacked the requisite probable cause to authorize a warrantless search of the automobile trunk.
"Generally, searches conducted without the prior approval of a judge or magistrate must be justified under one of the 'specifically established and well-delineated exceptions' to the warrant requirement. [Cit.] Among those exceptions is what is commonly denominated as the 'automobile exception' and which had its genesis in Carroll v. United States, 267 U. S. 132 (45 SC 280, 69 LE 543) (1925). The phrase 'automobile exception' connotes a legitimate warrantless search of this otherwise constitutionally protected area whenever (1) probable cause to believe that the automobile contains contraband or evidence of a crime conjoins with (2) exigent circumstances making the warrant procedure impractical and causing the resort to an immediate warrantless search to be reasonable and necessary. [Cits.]" McDonald v. State, 156 Ga. App. 143 (273 SE2d 881) (1980).
2. In view of our holding in Division 1, it is unnecessary to address the issue of whether the police obtained the voluntary consent of appellants. There being probable cause and exigent circumstances, a warrantless search was authorized with or without appellants' consent. See generally State v. Bradley, 138 Ga. App. 800 (227 SE2d 776) (1976).
3. Appellants assert that the trial court erred in admitting into evidence confessions given by both appellants. Appellants contended that the confessions are not admissible because they were obtained during an illegal arrest. Even assuming without deciding that appellants' confessions were obtained during an illegal arrest, we find that such confessions were still admissible. Thompson v. State, 248 Ga. 343 (285 SE2d 685) (1981). A Jackson-Denno hearing was held outside the presence of the jury. The trial court determined the confessions were made voluntarily. On appellate review, such a determination must be accepted unless it is clearly erroneous. Smith v. State, 159 Ga. App. 20, 21 (282 SE2d 677) (1981); Gibbs v. State, 235 Ga. 480, 482 (220 SE2d 254) (1975). The determination by the trial court in the instant case was not erroneous, and it was not error to admit appellants' confessions.
4. Finding no error, this court must affirm.
Dupont K. Cheney, District Attorney, Harrison W. Kohler, Assistant District Attorney, for appellee.
Samuel J. Brantley, for appellants.
DECIDED JUNE 20, 1983.
Thursday May 21 20:28 EDT


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