Lentile v. State

• Decision Date: 05 November 1975
• Docket Number: No. 3,No. 51219,51219,3
• Citation: 222 S.E.2d 86,136 Ga.App. 611
• Parties: W. L. LENTILE v. The STATE
• Court: Georgia Court of Appeals

Page 86

222 S.E.2d 86

136 Ga.App. 611

W. L. LENTILE v. The STATE.

No. 51219.

Court of Appeals of Georgia, Division No. 3.

Nov. 5, 1975.

Rehearing Denied Nov. 18, 1975.

Spivey, Carloton, Clark & Merrill, John B. Spivey, Charles B. Merrill, Jr., Swainsboro, M. O. Strickland, Vidalia, for appellant.

H. Reginald Thompson, Dist. Atty., Swainsboro, for appellee.

STOLZ, Judge.

The defendnat appeals from his conviction of four counts of violations of the Georgia Controlled Substances Act. He was sentenced to 6 years on Count 1 and 2 years each on Counts 2, 3 and 4.

The evidence showed that at 3:15 p.m., while executing a search warrant in a house, a G.B.I. agent answered a telephone call from the defendant, who asked the agent (thinking him to be the resident) if he was ready to do the business they'd talked about the other night. The agent said he was ready, then the defendant, acknowledging that they shouldn't talk over the private telephone line, gave the agent the number of a club in Dublin where he could be called. The agent called him at that number in about 20 minutes and they reached an agreement as to the quantity (100 pounds in three suitcases) and price of the buy. At 6:30 p.m., the agent called the defendant at the home number furnished by the latter, and got the defendant's consent for the agent's 'cousin' (a fellow agent) to conduct the transaction. As planned, the agents called the defendant from Soperton (at about 8 p.m.), met the defendant at an agreed-upon rendezvous point (at about 8:20 p.m.), then followed the defendant as he led them to his home. As the agents drove up to the house at about 8:30 p.m., they observed 'several' persons walking around inside the house. The defendant tried to get the agents to come inside the house with him, which they declined to do. They then exhibited their money to the defendant upon his demand. He went into his house and, after about 15 minutes, returned with one of the three suitcases, containing approximately one-third of the agree buy of marijuana. After the suitcase had been opened, revealing the marijuana, the defendant was arrested without a warrant. Thereafter, two persons fled the house, one of whom, Mr. Ellington, was apprehended on the screen porch, and the agents entered the house, where they arrested the defendant's wife (in which room is not revealed). The three arrested persons were handcuffed in the hallway and the agents commenced a warrantless search of the entire house, 'looking for other people.' They seized some marijuana in plain view on a bed in the back bedroom, then opened a closed metal box nearby and seized quantities of LSD, PCP and marijuana therein. Also seized were two open suitcases containing the balance of the marijuana buy, one located in the same bedroom and the other in the dining room. A general search of the house, including closets and closed boxes, revealed quantities of contraband, which were seized.

1. Enumerated errors 2 through 12 pertain to the denial of the motion to suppress the evidence.

Since the defendant committed the offense of unlawful possession of marijuana with intent to distribute, in the officers' presence, the state was not required to obtain an arrest warrant. Code § 27-207. Nor were they required to obtain a search warrant prior to their arrival at the house, because the rendezvous point was not agreed upon until approximately an hour and a half beforehand, and it does not appear that the agents knew in advance that the defendant planned to proceed from the rendezvous point to his residence.

However, search of the house was not justified as incident to the defendant's lawful arrest outside the house. Code Ann. § 27-301 (Ga.L.1966, p. 567) provides that '(w)hen a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person's immediate presence' (emphasis supplied) for the four designated purposes. See also Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685; Vale v. Louisiana, 399 U.S. 30, 90 S.Ct. 1969, 26 L.Ed.2d 409; United States v. Basurto, 9 Cir., 497 F.2d 781. Under the holding in United States v. Bustamante-Gamez, 9 Cir., 488 F.2d 4 (1973), cert. denied, 416 U.S. 970, 94 S.Ct. 1993, 40 L.Ed.2d 559, however, a warrantless search was justified by the exigency of the circumstances-that several persons were in the house before the defendant's arrest, two persons were seen fleeing the house after the defendant's arrest, and the defendant had brought out only a third of the agreed on buy of marijuana-giving the officers reason to believe that their presence and identity had been detected, and that there was a substantial possibility that the remaining occupant or occupants would attempt to escape or destroy evidence, set up resistance to an eventual entry, or plan a desperate flight.

Once lawfully within the house, the officers were authorized to make a search of the entire house for the limited purpose of securing it, i.e., discovering the presence of all occupants and eliminating the possibility of harm to the officers and the destruction of evidence. See United States v. Bustamante-Gamez, supra, and Code Ann. § 27-301, supra. Once the defendant, his wife, and Ellington were under arrest, the only remaining valid ground for a search of the entire house was for the purpose of discovering the presence of any possible remaining occupants. The search revealed none.

A search of the entire house for contraband was not justified as incident to the arrest of Ellington and the defendant's wife. Ellington was arrested on the screen porch; no contraband was found there within the area of his immediate presence. The state, having the burden of proof, failed to show in which room of the house the defendant's wife was arrested; hence, the area within her immediate presence which could be searched, cannot be determined.

' However, 'A police officer is free to use and seize what he sees in plain sight if he is at a place where he is entitled to be. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067.' Lewis v. State,126 Ga.App. 123, 126, 190 S.E.2d 123, 126.' (Emphasis supplied.) Brewer v. State, 129 Ga.App. 118, 119, 199 S.E.2d 103, 111. The officers in the case sub judice, being entitled...