Caito v. State

• Decision Date: 08 February 1974
• Docket Number: No. 48840,No. 1,48840,1
• Citation: 130 Ga.App. 831,204 S.E.2d 765
• Parties: Dominick J. CAITO et al. v. The STATE
• Court: Georgia Court of Appeals

Page 765

204 S.E.2d 765

130 Ga.App. 831

Dominick J. CAITO et al. v. The STATE.

No. 48840.

Court of Appeals of Georgia, Division No. 1.

Feb. 8, 1974.

Elliott, Turner, Bray & Belk, David J. Turner, Jr., Manchester, Ben R. Freeman, Greenville, for appellants.

Eldridge W. Fleming, Dist. Atty., Hogansville, William F. Lee, Jr., Newnan, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal is by two defendants who were convicted of violation of the Georgia Drug Abuse Control Act for possession of more than one ounce of marijuana.

A hearing was held on a motion to suppress. There the state presented the testimony of two witnesses, one being a state trooper and the other a deputy sheriff. The motion to suppress was denied, which order is one of the grounds of error.

At this hearing the trooper testified that during a night patrol duty on State Highway 41, he observed an automobile with two occupants. Following them he noticed the passenger continually looked to the rear, an action which he regarded as suspicious. This suspicion was heightened as he saw this passenger 'was more or less fumbling around with something in the car.' (T. 3 of Motion to Suppress Hearing). After following the automobile at a distance of six to eight car lengths for approximately five miles he stopped them in the City of Warm Springs for the reason that 'They was driving approximately five to ten miles an hour above the speed limit and acting very suspicious.' (Ibid. T. 3).

Upon the car being halted the trooper first asked the driver to step out and upon compliance requested the driver's license. He also inquired as to vehicle ownership. During this interval he saw the passenger 'was still fumbling with the glove compartment, the console in the floorboard, and I decided then that I should check 'em and I asked 'em to step out of the car.' (Ibid. T. 4). Both occupants then went to the rear of the car where the usual 'pat down' was performed. Then, in reply to the policeman's inquiry as to vehicle ownership the passenger replied that it belonged to him. When the officer asked for confirmation documents, the passenger answered that they were in the glove compartment. The officer's testimony was that 'I said 'would you mind getting the paper?' He said 'No." (Ibid. T. 4). Defendant passenger proceeded without complaint to go to the car with the officer following him. Upon defendant opening the glove compartment the officer observed by means of his flashlight that there was on top of the papers a plastic bag containing leafy green vegetation thought to be marijuana. 'I asked him what was in the bag, he said, 'Well, you know', I said, 'Whose is it? and he said 'It's mine,' and at that time I called the deputy.' (Ibid. T. 4.).

The state trooper did not make a search of the vehicle and did not then or subsequently make charges for the speeding offense.

The deputy sheriff's testimony at the suppression hearing was that on arrival the doors to the car and the trunk were closed but the glove compartment was open and he observed and seized 'four bags of marijuana in the clove console which was in open, plain view.' (Ibid. T. 14). He placed the defendants under formal arrest and called for a wrecker to remove the car to the local jail. 'We stayed with the automobile until the wrecker arrived, and then the subjects and myself and Deputy Parks followed the automobile to the jail. We then took the subjects and let them stand by the car while I continued the search.' (Ibid. T. 14). This search was without a warrant but resulted in a discovery of a brown paper bag under the hood. Inside this container were twelve plastic bags of green leafy material which subsequently was found by the State Crime Laboratory to be marijuana.

At the trial counsel for the defendants preserved their objections as made during the in limine hearing by stipulation agreement. The trooper and deputy testified substantially as they had previously. Additionally, the trooper said that at the time he saw the bag in the glove compartment the defendant car-owner said 'You got me.' The court overruled the defense objection to this statement that it was inadmissible 'unless he lays a foundation that he's advised the man of his rights at the time he made the statement.' (T. p. 6). The trooper also added that during the pat-down bodily search he had ordered the defendants to empty their pockets and put the contents on top of the automobile. (T. p. 9).

In addition to the representative from the State Crime Laboratory who identified the substance, the state called the county sheriff to the stand. Defense counsel objected because he had not been sequestered and because his name had not been on the list of state witnesses submitted in response to demand by defendants. The district attorfney explained his oversight as being due to his having 'aobut 70 cases on the calendar.' The court permitted the sheriff to testify. This testimony was limited to his handling of the marijuana from the time of his being apprised of the seizure and his having taken it to the State Crime Laboratory for analysis. The ruling that enabled the sheriff to be put on the stand is among the assignments of error.

Other error enumerations deal with refusals to charge as requested by defense and a claim that in view of the evidentiary errors complained of that the trial court erred in denying their motion for a directed verdict of acquittal.

1. 'An arrest is accomplished whenever the liberty of another to come and go as he pleases is restrained, no matter how slight such restraint may be. The defendant may voluntarily submit to being considered under arrest without any actual touching or show of force, and the arrest is complete. (Cits.) The mere fact that the officer testifying with regard to these occurrences stated at one place in his testimony that after he had completed the search he 'then placed him under arrest' does not alter the fact that the defendant was actually under arrest from the moment the police officers approached the automobile which he was driving and caused him to alight therefrom . . .' Clements v. State, 226 Ga. 66, 67, 172 S.E.2d 600, 601. 'It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person.' Terry v. Ohio, 392 U.S. 1, 16, 88 S.Ct. 1868, 20 L.Ed.2d 889; Holtzendorf v. State, 125 Ga.App. 747, 750, 188 S.E.2d 879.

2. The arrest here was valid since the automobile was exceeding the speed limit, this being in violation of Code Ann. §§ 68-1626 through 68-1628 and is punishable as a misdemeanor under Code Ann. § 68-9926. Also, it shoud be noted an arrest may be made 'without a warrant if the offense is committed in his (an officer's) presence.' Code § 27-207.

3. The officer testified that after defendants got out of the car, he patted down both defendants for 'any bulky materials they might have had in the pockets' (T. 9) and made them expose the contents of their pockets. Whether this arrest would be construed as a custodial arrest bringing the search within United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed. 456 is not before this court, as no evidence from this search of the pockets was found to be contraband nor introduced at the trial. 'It is 'harmless error' to overrule a motion to suppress evidence which is never introduced. . . .' Walker v. State, 130 Ga.App. 597, 203 S.E.2d 890.

4. Was the contraband admissible under the 'plain view' doctrine? A traffic officer acts reasonably and within his authority when asking to see owner's registration papers when a vehicle is halted by reason of his observation of a law violation. When the officer asked for papers confirming the oral statement of ownership, defendant replied these were in the glove compartment. As pointed out in this opinion's statement of facts, the compliance with this request was voluntary. The officer did not enter the car but remained outside at the door in a legally correct location. See Lewis v. State, 126 Ga.App. 123, 125, 190 S.E.2d 123. Whatever was observed would fall within the plain view doctrine. Anderson v. State, 123 Ga.App. 57, 59, 179 S.E.2d 286; Bass v. State, 123 Ga.App. 705(2), 182 S.E.2d 322.

Defendants contend that the plain view doctrine does not apply because of use of a flashlight added to the fact that the opening of the glove compartment was at the officer's request. In the first instance the flashlight here was not used to search the car but limited to the glove compartment. In shining it into the opened glove compartment, it was reasonable to assume he may have been clecking for weapons or that the light would aid defendant in finding the title document among the pile of papers. Thus there was no exploratory search such as was condemned in Dyke v. Taylor Impelement Co., 391 U.S. 216, 221, 88 S.Ct. 1472, 20 L.Ed.2d 538 and Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171.

Use of a flashlight has been upheld in such plain view cases as Marshall v. United States, 422 F.2d 185 (5th Cir. 1970); Walker v. Beto, 437 F.2d 1018 (5th Cir. 1971); United States v. Wright, 146 U.S.App.D.C. 126, 449 F.2d 1355 (1971). Therefore the officer's limited use of the flashlight here did not prevent the application of the plain view doctrine in this case.

Concerning the officer's request, this directive had a proper basis. Substantiation of the officer's good faith was the absence of any evidence that this served as an excuse for an arbitrary exploratory search.

The evidence indicates defendant's production of the ownership papers was voluntary.

Consequently, the marijuana comes within the plain view doctrine: the observer had a right to be where he was at the time he inadvertently saw the contraband; it was immediately apparent to him that the vegetation was contraband; and there were exigent...