Holtzendorf v. State

• Decision Date: 17 March 1972
• Docket Number: No. 2,No. 46955,46955,2
• Citation: 188 S.E.2d 879,125 Ga.App. 747
• Parties: Reginald L. HOLTZENDORF, Jr. v. The STATE
• Court: Georgia Court of Appeals

Page 879

188 S.E.2d 879

125 Ga.App. 747

Reginald L. HOLTZENDORF, Jr. v. The STATE.

No. 46955.

Court of Appeals of Georgia, Division No. 2.

March 17, 1972.

Syllabus by the Court

The marijuana which is the subject matter of a motion to suppress timely filed in this case was procured following a detention and search exceeding Fourth Amendment standards, from which it follows that its admission in evidence was error.

Holtzendorf was charged by accusation in the State Court of Glynn County with the offense of possessing marijuana. He moved to suppress evidence relating to the discovery of about one and a third grams of marijuana found on his person, on the ground that it was the fruit of an illegal arrest, search and seizure. On the hearing the only witnesses were the two arresting officers. The motion was overruled; the trial resulted in a hung jury, and the decision was appealed on a certificate of immediate review.

J. S. Hutto & Associates, Eugene Highsmith, Brunswick, for appellant.

DEEN, Judge.

Two police officers beginning their evening rounds in the City of Brunswick were informed by another officer off duty that there were two persons in a local restaurant talking loud who might be going to cause a disturbance, and that one of them might be intoxicated. They drove past the restaurant at about 1:30 a.m. and noted that all was quiet. They then cruised in the vicinity and some five blocks away came upon two young men walking on the sidewalk. The officers alighted from the patrol car, demanded identification, and satisfied themselves that the youths were not intoxicated. One of them then demanded of the defendant what he was carrying in a paper bag and the defendant replied that it was a bottle of apple wine. Further questioned he stated that it was his wine and he was 19 years old. Both boys were then placed under arrest for violation of a city ordinance forbidding possession of alcoholic beverages by minors. The defendant was ordered to stand with his back to the officer and hands against the roof of the police car and was subjected to a minute search, in the course of which his pants came unbuttoned and he was forced to remove his shoes. A packet of cigarettes was removed from his shirt pockets, and under it a 'very small bag rolled up' of plastic containing the contraband for possession of which he was placed on trial.

The State contends that the defendant voluntarily surrendered the bottle of wine which, with the statements that he was a minor and that the wine belonged to him, left no doubt that he was violating the law; that the arrest was therefore legal because the crime was committed in the presence of the officers, that the search was legal as incident to a valid arrest, and that the discovery of the gram or so of marijuana was admissible in evidence.

Code Ann. § 27-301 provides: 'When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person's immediate presence for the purpose of: (a) Protecting the officer from attack; or (b) Preventing the person from escaping; or (c) Discovering or seizing the fruits of the crime for which the person has been arrested; or (d) . . . seizing . . . things . . . which may have been used in the commission of the crime for which the person has been arrested,' and, if the search is authorized, he may also seize any object the possession of which is unlawful. The defendants were not attempting to escape, and the 'fruit' of the crime for which Holtzendorf was arrested was quite obviously in the paper bag already in the officer's possession. A search for weapons would not comprehend the small, soft plastic bag lying beneath the pack of cigarettes in a breast pocket, as will be developed later, and we prefer to leave open the question of the reasonableness under all circumstances of a general, minute, exploratory search on general principles where the arrest is legal. While it has been held by Fourth Amendment standards that the search of premises under these circumstances is limited by its propinquity to the defendant, and may thus be unreasonable where geographically removed (Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145) and while 'a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope' (Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889, citing Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 and Go-Bart Importing Co. v. United States, 282 U.S. 344, 356, 51 S.Ct. 153, 75 L.Ed. 374), it has also been stated in United States v. Rabinowitz, 339 U.S. 56, 60, 70 S.Ct. 430, 432, 94 L.Ed. 653: 'Yet no one questions the right, without a search warrant, to search the person after a valid arrest. The right to search the person incident to arrest always has been recognized in this country and in England. Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652. Where one had been placed in the custody of the law by valid action of officers, it was not unreasonable to search him.' Yet, to be admissible, the evidence must have been obtained by means of a search and seizure reasonably related in scope to the justification for their initiation. Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 18 L.Ed.2d 782.

Is the search here, then, justified by the arrest, or did the arrest itself overreach the Constitutional safeguards afforded by our Bill of Rights? At this point we have only the testimony of the two arresting officers, yet it alone raises grave questions as to the reasonableness of the procedure used. While their testimony was that they were directed to a restaurant, they did not enter it and made no inquiry as to whether a disturbance had in fact occurred. They stopped the defendant and his companion while the latter were engaged in the perfectly lawful activity of walking on the sidewalk and indulging in no furtive or suspicious conduct of any kind. The reason given for leaving their automobile and confronting the youths was that they matched the description given by their fellow policeman in that one had long hair and one had short hair. The attitude is obvious from the following portion of the cross examination: 'Q. Now, you said 'people of this kind' and what you really meant was people with long hair? A. Well, if you want to call it that, or hippy type, whatever you want to call it, that's long hair, isn't it? . . . Q. But also, the fact that the boy had long hair had something to do with it, too, didn't it? A. Possibly. Anytime...