Vansant v. State

Hunstein, Justice,

dissenting in part.

I respectfully dissent to Division 2 of the majority opinion. The *322 evidence at trial admits of several factors that came into play in the Albany police officer’s decision to conduct an investigatory stop of Vansant’s vehicle in order to locate a specific person. Those factors are: the particular description of the vehicle involved in the hit-and-run as a white van; the van’s presence less than a mile from the restaurant minutes after the incident had been reported; the sparsity of any other vehicles in the area at 1:30 a.m. in Albany; and the van’s passage along a major route leading from the scene of the alleged hit- and-run. 3 Under the facts of this case, I would hold that the police officer’s stop of Vansant’s vehicle did not constitute an unreasonable search and seizure under the Fourth Amendment to the U. S. Constitution or Art. I, Sec. I, Par. VIII of the Georgia Constitution. See Cheatham v. State, 204 Ga. App. 483 (1) ( 419 SE2d 920 ) (1992) (named individual heard gunshots in woods; officers in area 45-115 minutes later had articulable facts to stop freshly-muddied truck, the only vehicle in vicinity); State v. McFarland, 201 Ga. App. 495 ( 411 SE2d 314 ) (1991) (radio dispatch that attendant in service station across from officers’ car reported intoxicated customer authorized stop of car matching attendant’s description); McConnell v. State, 156 Ga. App. 612 ( 275 SE2d 697 ) (1980) (defendants’ spatial and temporal proximity to scene of crime and apparent absence of others in vicinity sufficient to make a brief investigative stop). Accord Cobb v. State, 244 Ga. 344 (4) ( 260 SE2d 60 ) (1979) (officers told by radio about robbery committed by two black males wearing leather jackets in a greenish 1970 or 1971 Buick, at a time of night when traffic was light, had “probable cause to stop,” id. at 348 , a gold 1969 Buick with three black males not wearing leather jackets). Accordingly, I would affirm the opinion of the Court of Appeals.

Decided May 31, 1994 —

Reconsideration denied July 1, 1994.

I am authorized to state that Justice Carley and Justice Thompson join in this dissent.

*323 Vansant, Corriere, McClure & Dasher, Alfred N. Corriere, K. Alan Dasher, for appellant.

Britt R. Priddy, District Attorney, B. Martin First, Assistant District Attorney, for appellee.

The factors in this case represent four of the six factors Professor LaFave, in his treatise on search and seizure, has recognized as being taken into account by courts throughout the United States in making the judgment whether reasonable suspicion to conduct an investigatory detention existed. Those factors are as follows: (1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender’s flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation. See 3 LaFave, Search and Seizure, A Treatise on the Fourth Amendment (2nd ed.), p. 461, § 9.3 (d).