Fluker v. State, 67497

• Citation: 171 Ga.App. 415,319 S.E.2d 884
• Decision Date: 28 June 1984
• Docket Number: No. 67497,67497
• Court: United States Court of Appeals (Georgia)
• Parties: FLUKER v. The STATE.

Page 884

319 S.E.2d 884

171 Ga.App. 415

FLUKER v. The STATE.

No. 67497.

Court of Appeals of Georgia.

June 28, 1984.

Thomas A. Travis, Jr., Atlanta, for appellant.

Robert E. Wilson, Dist. Atty., Thomas S. Clegg, Ann Poe Mitchell, Barbara Conroy, Asst. Dist. Attys., for appellee.

CARLEY, Judge.

Appellant was indicted for two counts of vehicular homicide and for trafficking in cocaine. He was tried before a jury and convicted of trafficking in cocaine. Appellant appeals from the judgment of conviction and sentence entered on the guilty verdict.

1. Appellant enumerates as error the denial of his motion to suppress the fruits of the warrantless search of his automobile. The evidence at the suppression hearing revealed the following: Officer Lee was summoned to the scene of a collision involving a motorcycle and an automobile driven by appellant. During the course of Officer Lee's investigation, two bystanders informed him that immediately after the collision, they observed appellant remove two white packages from the passenger compartment of appellant's automobile. The witnesses told Officer Lee that appellant then opened the hatchback of his automobile and concealed the packages under the carpet by the spare tire. Officer Lee testified that he immediately asked appellant for the keys to his automobile. Appellant complied, and Officer Lee opened the hatchback and found the concealed packages by the spare tire. Appellant was then placed under arrest. It was later determined that the packages contained cocaine.

The State asserts that the warrantless search of appellant's automobile and seizure of the contraband came within the recognized "automobile exception." Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). "In order to satisfy the criteria enunciated in Carroll and thereby bring a warrantless search within the 'automobile exception,' the State must demonstrate that probable cause to search and exigent circumstances requiring an immediate search were present when the search was conducted." (Emphasis original.) McKinney v. State, 155 Ga.App. 930, 932, 273 S.E.2d 888 (1980). Appellant does not dispute the presence of probable cause to search his automobile, but contends that because his automobile was immobile at the time of the search, no exigent circumstances existed.

It has long been held that a warrantless search of an automobile is permitted where it is not practical to secure a warrant because the vehicle can quickly be moved out of the locality or jurisdiction in which the warrant must be sought. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Radowick v. State, 145 Ga.App. 231, 244 S.E.2d 346 (1978). It is undisputed that, in the instant case, appellant's automobile was rendered immobile due to the collision. However, appellant's automobile was disabled in an intersection and was obstructing traffic. Officer Lee testified that it was normal police procedure to direct that an inoperable vehicle be removed from the road. Such a removal would be treated as a "private haul," whereby a private wrecker service would be called to tow the automobile away from the area. Furthermore, at the time that Officer Lee learned of the existence of the suspected contraband, appellant was not under arrest.

Thus, even though the automobile could not be quickly removed from the scene under its own propulsion, it was clearly "movable" in that it would have to be towed from the intersection to prevent its obstruction of traffic. The evidence shows that the removal was to be considered a "private haul," and would certainly be moved from the location to a private junk yard rather than to a police facility. "[T]he fact that the vehicle was not moving on the highway ... is of no significance ... [A] moving vehicle is not the sine qua non for the exception; the proper test is whether or not the vehicle was movable. [Cits.]" (Emphasis in original.) United States v. Burrow, 396 F.Supp. 890 (1975). See also Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, supra.

More importantly, however, the vehicle containing suspected contraband was about to be moved and, therefore, the contraband was easily subject to disappearance. As previously stated, appellant was not under arrest or under police custody prior to the search. The automobile was to be towed out of the immediate locale and out of the presence of the police. There was nothing to prevent appellant from accompanying his automobile while it was towed or from later going to his automobile to remove or destroy the contraband. Furthermore, there were at least two bystanders who knew of the existence of the contraband in the automobile. The possibility of the disappearance of the contraband from an automobile is a critical factor in determining the existence of exigent circumstances. In Coolidge v. New Hampshire, supra, 403 U.S. at 460, 91 S.Ct. at 2034, the Supreme Court of the United States found exigent circumstances lacking where "[t]here was no way in which [appellant] could conceivably have gained access to the automobile after the police arrived on his property." Moreover, the Court emphasized that there was "nothing in this case to invoke the meaning and purpose of the rule of Carroll v. United States, ... no contraband or stolen goods or weapons, no confederates waiting to move the...