Jones v. State, 76378

• Decision Date: 03 June 1988
• Docket Number: No. 76378,76378
• Citation: 370 S.E.2d 784,187 Ga.App. 421
• Parties: JONES v. The STATE.
• Court: Georgia Court of Appeals

Page 784

370 S.E.2d 784

187 Ga.App. 421

JONES v. The STATE.

No. 76378.

Court of Appeals of Georgia.

June 3, 1988.

John J. Martin, Jr., Conyers, for appellant.

Robert F. Mumford, Dist. Atty., William F. Todd, Jr., Asst. Dist. Atty., for appellee.

BIRDSONG, Chief Judge.

Appellant, James Warren Jones, was convicted of two counts of burglary. He appeals basing his sole enumeration of error on the trial court's denial of his motion to suppress. Specifically, appellant asserts that the search of his automobile was based on an "improper inventory search where the appellant's automobile was not a hazard to traffic nor was it related to the appellant's arrest, nor was he given the choice of an alternate disposition to the impoundment" of the automobile.

At approximately 3:00 a.m., Patrolman Cranor of the Henry County Sheriff's Department observed a late model blue Chevrolet Nova automobile driving alongside of a church. The church was closed and locked. Burglaries had been prevalent in this area, and this particular church had been burglarized in the past. The vehicle turned off its lights and subsequently exited the church parking lot after turning its lights on again. Patrolman Cranor followed the vehicle, which was going at an "extremely slow speed"; the vehicle was proceeding at about 25 miles per hour in a 55 mph zone on Highway 42. The driver of the vehicle was turning his head from side to side "like he was looking for something." Patrolman Cranor observed that from the time he saw the vehicle operator until he hailed it to stop, the driver acted "extremely nervous." Further, the police had a recent lookout sheet on a 1969 blue Nova.

In view of these facts, Patrolman Cranor initiated a tag check of the vehicle. The vehicle pulled off the highway into the parking lot of a closed Tastee Freeze. The appellant was the driver and sole occupant of the vehicle. The patrolman obtained appellant's driver's license and insurance card, and asked appellant why he was at the church at that time of the morning. The appellant did not immediately respond, but then stated that he was waiting for his employer. Certain of appellant's responses were "vague and sketchy," and when he finally did give phone numbers of two individuals, these persons could not be contacted. As a standard police procedure, Patrolman Cranor initiated a "wanted records check" on the appellant and his car, and requested the appellant to exit his vehicle. When the appellant got out of his car, Patrolman Cranor observed that there appeared to be a lot of items therein, including some new clothes and shoes. Patrolman Cranor received a radio call confirming that a vehicle of the same general description of appellant's car had been involved in a Rockdale County burglary. The lookout sheet also indicated that the wanted vehicle had a Newton County decal on its license plate and appellant's license plates were issued in Newton County. At this point, the patrolman learned via his radio that appellant was on parole. Appellant's parole officer was contacted and verified that appellant was in violation of the "midnight curfew" terms of his parole. Patrolman Cranor then arrested the appellant and commenced standard arrest procedure. It is part of this standard procedure to impound a vehicle of an arrested individual if no one else is present in the vehicle who can take possession of it. Accordingly, Patrolman Cranor and a deputy named Wiggam began an inventory of the vehicle's contents. The inventory was conducted "strictly to inventory the items for [the police's] protection and [appellant's] protection as well as before the vehicle is impounded." However, the contents of the vehicle's trunk were not inventoried as the officers did not have a trunk key and could not gain access.

Subsequently, Detective Boswell of the Rockdale County Sheriff's Department was contacted by another Henry County Sheriff's Department investigator. Based on a request from Detective Boswell and information that he supplied for a search warrant affidavit, a search warrant was obtained for appellant's vehicle. More items were found when the search warrant was executed, including some blank checks belonging to one of the burglary victims. Held:

In considering the legality of the search of appellant's car, this court can consider all relevant evidence of record, including that adduced at the suppression hearing as well as at trial. Sanders v. State, 235 Ga. 425, 431-432 (Sec. II), 219 S.E.2d 768, cert. den. 425 U.S. 976, 96 S.Ct. 2177, 48 L.Ed.2d 800; Stapleton v. State, 235 Ga. 513(1), 220 S.E.2d 269.

Our review of the operative facts attendant the stopping of appellant's vehicle for a tag check satisfies us that the stop was lawful and did not constitute an unlawful seizure within the meaning of the Fourth Amendment. In Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229, the Supreme Court held that "not all seizures of the person must be justified by probable cause to arrest for a crime.... [C]ertain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime.... Although not expressly authorized in Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889], United States v. Brignoni-Ponce, 422 U.S. 873, 881-882 [95 S.Ct. 2574, 2580-2581, 45 L.Ed.2d 607] (1975), was unequivocal in saying that reasonable suspicion of criminal activity warrants a temporary seizure for the purpose of questioning limited to the purpose of the stop." (Emphasis supplied.) See generally, Kettman v. State, 257 Ga. 603(9), 362 S.E.2d 342; Coley v. State, 177 Ga.App. 669(1), 341 S.E.2d 9. Thus, neither the stopping of appellant nor the observation of certain items of property in plain view as appellant exited his vehicle, see, e.g., Catchings v. State, 256 Ga. 241(10)(a), 347...