Hunter v. State, 77679

• Decision Date: 12 January 1989
• Docket Number: No. 77679,77679
• Parties: HUNTER v. The STATE.
• Court: Georgia Court of Appeals

Page 338

378 S.E.2d 338

190 Ga.App. 52

HUNTER v. The STATE.

No. 77679.

Court of Appeals of Georgia.

Decided Jan. 12, 1989.

Rehearing Denied Jan. 26, 1989.

Certiorari Denied Feb. 23, 1989.

Sonja L. Salo, Atlanta, for appellant.

Thomas C. Lawler III, Dist. Atty., Tracy A. Lorowitz, Asst. Dist. Atty., for appellee.

CARLEY, Chief Judge.

After a bench trial, appellant was found guilty of possession of cocaine with intent to distribute, possession of diazepam, and possession of a firearm during the commission of a felony. He appeals from the judgments of conviction and sentences entered by the trial court on its findings of guilt.

1. Appellant filed a pre-trial motion to suppress evidence seized in the search of his automobile. The trial court conducted a hearing and, finding that the search had been conducted with appellant's consent, denied the motion to suppress. Appellant enumerates the denial of his motion as error. His specific enumeration is: "Absent suspicion or probable cause to believe an automobile is transporting contraband or weapons, it is a violation of a citizen['s] 4th Amendment right[s] to request that he consent to a search of his vehicle and any evidence obtained from said illegal search must be suppressed."

"It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is 'per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.' [Cits.]" Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). Included among those "specifically established and well-delineated exceptions" to the warrant requirement are the full-scale search of an automobile on probable cause and, after a valid traffic stop, a protective search of the passenger compartment on suspicion that the occupant or occupants are dangerous and might gain control of weapons. See generally Baker v. State, 170 Ga.App. 700(1), 318 S.E.2d 178 (1984); Holmes v. State, 163 Ga.App. 753, 754(4), 294 S.E.2d 719 (1982). Accordingly, were either of those exceptions to the warrant requirement at issue in the present case, an inquiry into the officer's probable cause or suspicion for conducting the search of appellant's automobile would be relevant.

The search of appellant's car was, however, found to be consensual. "It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent. [Cits.]" Schneckloth v. Bustamonte, supra, 412 U.S. at 219, 93 S.Ct. at 2043. Consent, as an entirely separate exception to the warrant requirement, turns not on the officer's probable cause or suspicion to conduct the search, but on the voluntariness of the individual's waiver of his Fourth Amendment rights. "Where the [S]tate seeks to justify a warrantless search on grounds of consent, it 'has the burden of proving that the consent was, in fact, freely and voluntarily given.' [Cit.] A valid consent eliminates the need for either probable cause or a search warrant. [Cit.] The voluntariness of a consent to search is determined by looking to the 'totality of the circumstances,' [cit.], including such factors as the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused. In determining voluntariness, no single factor is controlling. [Cit.]" Dean v. State, 250 Ga. 77, 79-80(1a), 295 S.E.2d 306 (1982). "A free and voluntary consent that one's belongings be searched is a waiver of objection to the evidence produced as a result of the search. [Cit.] ... When the permission is granted (whether the defendant 'gives up' and admits guilt, or whether he feels that by expressing unconcern he may yet escape detection) and on request he himself unlocks his automobile, gives the keys to the officers, or expresses verbal permission for the search to be made, a waiver results. [Cits.]" Young v. State, 113 Ga.App. 497, 498, 148 S.E.2d 461 (1966).

There is no contention that appellant's subsequent consent to the search was the tainted product of an initial pretextual stop of his vehicle. Compare Brown v. State, 188 Ga.App. 184, 372 S.E.2d 514 (1988); Tarwid v. State, 184 Ga.App. 853, 363 S.E.2d 63 (1987). Assuming the existence of an otherwise valid non-pretextual initial investigatory stop of appellant's vehicle, the determination of...