Benton v. State

• Decision Date: 24 September 1999
• Docket Number: No. A99A2200.,A99A2200.
• Citation: 240 Ga. App. 243,522 S.E.2d 726
• Parties: BENTON v. The STATE.
• Court: Georgia Court of Appeals

522 S.E.2d 726

240 Ga. App. 243

BENTON v. The STATE.

No. A99A2200.

Court of Appeals of Georgia.

September 24, 1999.

Reconsideration Denied October 5, 1999.

Certiorari Denied March 10, 2000.

Novy, Jaymes & Vaughan, Eugene Novy, Deborah M. Vaughan, Atlanta, for appellant.

J. Tom Morgan, District Attorney, Sarah E. Sullivan, Assistant District Attorney, for appellee.

JOHNSON, Chief Judge.

The "automobile exception" provides that a police officer may search a car without a warrant if he has probable cause to believe the car contains contraband, even if there is no exigency preventing the officer from getting a search warrant.¹ On two occasions police officers had a confidential informant buy cocaine from appellant Artis Benton. The informant arranged a third buy, during which Detective R.J. Brink was on surveillance when he saw Benton arrive at the scene of the arranged sale, park his vehicle and walk away from it. Detective Brink walked to the vehicle, saw suspected cocaine and marijuana in it, opened the unlocked door and seized the suspected drugs. Was the warrantless search lawful? We hold that it was lawful under the automobile exception because Detective Brink had probable cause to believe Benton's vehicle contained illegal drugs. We therefore affirm the trial court's denial of Benton's motion to suppress evidence found in his vehicle.

DeKalb County Police Detective K.M. Short knows a confidential informant who has given him reliable information and has participated in numerous controlled drug buys that have led to arrests. The informant told Detective Short that Benton sells cocaine and marijuana. On December 2, 1998, the informant arranged to buy crack cocaine from Benton. Detective Brink was on surveillance when that drug sale took place. The informant again bought crack cocaine from Benton on December 14, but Detective Brink was not involved in that controlled buy. The informant next arranged to purchase crack cocaine from Benton at the informant's townhouse on December 18.

At 9:00 p.m., on December 18, Detective Brink and several other officers were on surveillance in the parking lot of the townhouse when Benton arrived in his green Ford Explorer with passenger Antonio Copeland. Detective Brink saw Benton park the vehicle, get out of it, go to the informant's townhouse door and knock on it. No one answered the door, so Benton returned to the Explorer. Benton then moved the vehicle to another parking space. He and Copeland got out of the parked vehicle and walked away from it, leaving the townhouse parking lot.

Detective Brink then walked to the Explorer, looked in the window and saw a clear plastic bag lying on the front center console. The bag contained a hard, white substance that Brink believed to be crack cocaine. He also saw, on the passenger floor, a clear plastic bag containing a green, leafy substance that he suspected was marijuana. Brink shined his flashlight into the vehicle to get a better view, which confirmed his belief that the items were illegal drugs. Brink opened the car door, which was not locked, and seized the suspected drugs.

In the meantime, other police officers involved in the surveillance arrested Benton and Copeland as they were walking a short distance away from the parking lot. Incident to Benton's arrest, the police searched the Explorer and found a bag in the floorboard area of the back seat containing more suspected marijuana.

Benton and Copeland were indicted for trafficking in cocaine, possessing cocaine with intent to distribute, possessing marijuana with intent to distribute and possessing more than one ounce of marijuana. Benton filed a motion to suppress the suspected cocaine and marijuana found in his vehicle. The trial court denied the motion, finding that Detective Brink's warrantless search of the Explorer was lawful under the "plain view" doctrine, even though there was no exigency preventing him from getting a search warrant.

Benton applied to this court for interlocutory review of the court's ruling. We granted the application because the trial court erroneously found that in this case the plain view doctrine did not require the existence of exigent circumstances. In spite of that error, we affirm the denial of the motion to suppress because the search was lawful under the automobile exception to the warrant requirement.

1. The plain view doctrine authorizes a police officer to seize an illegal item if the officer is lawfully in a place where he can see the item and if he has a lawful right of access to it.² An officer gains lawful access to an item in plain view by obtaining a search warrant, obtaining consent to search, or the existence of exigent circumstances. ³

In the instant case, it is undisputed that Detective Brink had neither a warrant nor consent to search Benton's vehicle. The trial court found that there were no exigent circumstances because the vehicle was parked and there were several police officers nearby who could have gotten the warrant while Brink secured the vehicle. Even though there was no warrant, consent or exigency, the trial judge ruled that Brink's search of the vehicle was valid under the plain view doctrine. Because that doctrine requires that a warrant, consent or some exigency give the officer a lawful right of access to the item in plain view, the trial court's ruling to the contrary was clearly erroneous.

Although the...