Jones v. State

• Decision Date: 20 January 1981
• Docket Number: No. 60138,60138
• Parties: JONES v. The STATE.
• Court: Georgia Court of Appeals

Page 778

275 S.E.2d 778

156 Ga.App. 730

JONES v. The STATE.

No. 60138.

Court of Appeals of Georgia.

Submitted July 1, 1980.

Decided Dec. 5, 1980.

Certiorari Denied Jan. 20, 1981.

Richard E. Collar, Jr., Lilburn, for appellant.

Herbert T. Jenkins, Jr., Sol., for appellee.

McMURRAY, Presiding Judge.

By accusation defendant was charged with the offense of a misdemeanor: violation of the Georgia Controlled Substances Act, in that he did unlawfully possess and have under his custody and control less than one ounce of marijuana. Defendant moved to suppress "the alleged contraband" seized by a police officer in the search of an automobile without probable cause and without defendant's consent. After a hearing, the motion was denied by the trial court upon its determination that "under the totality of the circumstances ... reasonable grounds existed for an articulable suspicion sufficient to warrant a limited investigative detention of the vehicle in question and its occupants," citing Stiggers v. State, 151 Ga.App. 546, 547(1), 260 S.E.2d 413; State v. Carter, 240 Ga. 518, 242 S.E.2d 28; Allen v. State, 140 Ga.App. 828, 829-831(1), 232 S.E.2d 250; and State v. Purdy, 147 Ga.App. 340, 341, 248 S.E.2d 683. This court granted an interlocutory appeal in order to review the trial court's denial of the defendant's motion to suppress. Held :

This case involves the issue of whether the police may make an investigatory stop of a vehicle on a street in an area having no other outlets where there had been problems of vandalism in the past. The area was a new subdivision just being constructed, and there had been reports of various problems in the new subdivisions throughout the county. As the officer approached the subdivision on its main road from its entrance he observed an automobile coming toward him which had just turned on its lights. He immediately directed the vehicle to stop and approached the car. As the defendant rolled down the window of the automobile in which he was riding, the officer immediately smelled what he thought was marijuana and observed paraphernalia, used in smoking marijuana, in the vehicle in plain view as well as a passenger in the front seat discarding a bag containing a leafy substance "that smelled and looked liked marijuana" on the ground from the passenger door. Also passengers were two juveniles, a male and a female.

Under the recent case of State v. Carter, 240 Ga. 518, 242 S.E.2d 28, supra, reversing Carter v. State, 143 Ga.App. 166, 237 S.E.2d 656, the evidence was ample for the police officer to stop the vehicle to ascertain the purpose of the occupants being in the uncompleted subdivision and to determine what their actions had been while they were there. Immediately thereafter the plain view doctrine came into effect with the smelling of the odor of marijuana and observing the various paraphernalia in the automobile. The trial court did not err in denying the motion to suppress the evidence seized.

Judgment affirmed.

DEEN, C. J., QUILLIAN, P. J., BANKE and BIRDSONG, JJ., concur.

SMITH, SHULMAN, CARLEY and SOGNIER, JJ., dissent.

SMITH, Judge, dissenting.

In the watershed decision of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the United States Supreme Court held that a limited "seizure" of an individual is constitutionally permissible where the police have "specific and articulable facts" giving rise to a "reasonable suspicion" of criminal activity. Today, in apparent disregard of these constitutional requirements, a majority of the Court of Appeals of Georgia upholds a wholly unwarranted "seizure" of an individual in his automobile. To this inexplicable aberration from basic principles of constitutional law, I respectfully dissent.

1. The facts of this case are not in dispute. On the evening of December 21, 1979, Officer Henning of the Gwinnett County Police Department was on a routine patrol which included a "subdivision just being constructed" called New Castle. The roads of the subdivision had been paved, but only one house was then under construction. There had been reports of various problems in the new subdivisions throughout the county. As to the subdivision in question, the officer testified: "(W)e have had a problem down there with persons riding vehicles across the grass, tearing it up, with a lot of garbage being dumped out, and abandoned down there, and a lot of beer and drinking and bottles thrown down in there, and glass in the roadway." Although Officer Henning testified that he had made approximately ten stops in the subdivision over the past two months, there is nothing in the record establishing when the most recent acts of vandalism had occurred. ¹ There were no reports of any unlawful or suspicious conduct on the evening of December 21.

At approximately 9:30 p. m., Officer Henning turned into New Castle from the main road for what he termed a "preventative patrol." The subdivision had no other outlets. It appeared to Officer Henning that a vehicle coming up a hill toward the main road had just turned on its headlights. When the oncoming vehicle approached the crest of the hill, Officer Henning directed the vehicle to stop and approached the car. Appellant, who was with three companions, rolled down his window. The officer smelled what he thought was marijuana. The automobile was then searched and marijuana was found.

At the time of the stop, the officer had observed no illegal activity. Nor was there any indication of such activity. For instance, no mud was observed on the tires of appellant's vehicle. The automobile made no erratic movements. The occupants of the vehicle exhibited no unusual behavior. Officer Henning stated he had no reason to think the occupants of the vehicle might be the possible perpetrators of any crime "except for the fact that they were in the subdivision." He testified: "(A)ny vehicle in there at that time of night I have reason to suspect ..."

Officer Henning apparently believed any vehicle driving into the subdivision at night was subject to being stopped. Indeed, while appellant was under arrest, at least one other car entered the subdivision; it, too, was stopped by Officer Henning. The officer testified as follows: "This other car came in. I got out, talked to them. It was a white male and a female. I guess they were in their late thirties or early forties. He said he was a real estate salesman, and he was just looking around the lots down there. I told him, you know, that would be okay, if that was what he was doing."

2. "The flaw in the State's case is that none of the circumstances preceding the officer('s) detention of appellant justified a reasonable suspicion that he was involved in criminal conduct." Brown v. Texas, 443 U.S. 47, 51-52, 99 S.Ct. 2637, 2641, 61 L.Ed.2d 357 (1979). Officer Henning's testimony establishes that his decision to stop appellant was based solely upon 1) the time and 2) the location. ² Contrary to the position adopted by Officer Henning and a majority of this court, anyone entering the New Castle subdivision after sundown was not ipso facto subject to detention by the police. Merely because a crime had been committed on some previous occasion "does not transform a ... neighborhood into a no man's land in which any passerby is fair game for a roving police interrogation." In re Tony C., 21 Cal.3d 888, 148 Cal.Rptr. 366, 371, 582 P.2d 957, 962 (1978). The fact that appellant was in the subdivision at 9:30 p. m. does not, under the circumstances of this case, substantially aid the state's...