Dimick v. State, 71576
| Decision Date | 27 February 1986 |
| Docket Number | No. 71576,71576 |
| Citation | 178 Ga.App. 60,341 S.E.2d 914 |
| Parties | DIMICK v. The STATE. |
| Court | Georgia Court of Appeals |
Foy R. Devine, Bruce H. Morris, Atlanta, for appellant.
Robert E. Wilson, Dist. Atty., Nelly F. Withers, James W. Richter, Asst. Dist. Attys., for appellee.
Appellant was arrested outside a restaurant for carrying a concealed weapon, a loaded and cocked 9 millimeter semi-automatic rifle, which was found tucked into his trousers beneath his coat. OCGA § 16-11-126. At the time he was also carrying a loaded and cocked .45 caliber pistol in a holster under his left arm, for which he was not charged, and a container of marijuana in his waistband. The arrest occurred after an employee of the restaurant called police to report that she saw the pistol as appellant was leaving the restaurant; he had been inside but just walked around and declined to be seated. Appellant's car was searched after he pointed it out on the parking lot in response to an officer's question. The warrantless search of the auto, the subject of the present appeal, uncovered yet another pistol, one or two small hand-rolled cigarette butts, and a gym canvas bag which contained packets of cocaine.
In addition to the original concealed weapon's charge, appellant was charged with possession of less than one ounce of marijuana (which was on his person) and possession of cocaine in violation of the Georgia Controlled Substances Act. OCGA § 16-13-30. He was convicted after a bench trial on all counts. He now appeals, asserting as error the trial court's denial of his motion to suppress the evidence found in the warrantless auto search. Although it is unclear from appellant's notice of appeal and enumerations of error, he is apparently challenging only his cocaine conviction as this is the only charge that relates to evidence found as a result of the auto search.
1. Appellant contends that the trial court erred in concluding the search was justified under the plain view doctrine. Because appellant enumerates as error only a Fourth Amendment claim, and not a state constitution claim, we only address whether appellant's federal constitutional rights were violated by the warrantless search. State v. Camp, 175 Ga.App. 591, 593(1), 333 S.E.2d 896 (1985). See also Lee v. State, 177 Ga.App. 698, 340 S.E.2d 658 (1986).
Mooney v. State, 243 Ga. 373, 383 (1), 254 S.E.2d 337 (1979).
Here, the police officer was lawfully in a position to view. The officer testified at the motion hearing that he peered into the vehicle parked in the public restaurant lot "since we had already found two automatic weapons on the subject, and I was looking in the vehicle to see if there was anything else, any larger weapons, or any other automatic weapons in the vehicle." This was well within his authority and reasonable under the circumstances. Anyone could have looked in through the car window. From this position the officer was able to see "a pistol stock down in the driver sidedoor, there was a canvas gym bag laying in the floor ... little film cans which many times is used to conceal narcotics, it is a little dark, plastic film case, and I can't recall specifically, one or two little bitty roaches, but I can't specifically say." They were "in the console area of the vehicle."
Appellant asserts that the state failed to prove the search was authorized under the plain view doctrine because the police officer testified on cross-examination that it "was possible" he found the hand-rolled cigarettes after he was already in the car for inventory purposes. Although this statement injects some equivocation into the officer's previous statements that he viewed the roaches from outside the vehicle, it does not mandate that the court disregard his earlier statements or conclude them to be impeached by this expression of uncertainty. The subject was...
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Harper v. State
...shortly after the robbery and at trial. See Gravitt v. State, 220 Ga. 781, 787(8), 141 S.E.2d 893 (1965); Dimick v. State, 178 Ga.App. 60, 62(1), 341 S.E.2d 914 (1986); Miller v. State, 174 Ga.App. 703, 704(2), 331 S.E.2d 616 2. Both appellants contend that the court erred in denying their ......
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Whatley v. State, A95A1362
...and should not be disturbed by a reviewing court if there is any evidence to support it." (Citations omitted.) Dimick v. State, 178 Ga.App. 60, 61-62, 341 S.E.2d 914 (1986). In reviewing the record and the affidavit of Sgt. Shiflett, we find there was sufficient evidence to support the tria......
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