Martin v. State, A91A1157

• Decision Date: 01 November 1991
• Docket Number: No. A91A1157,A91A1157
• Citation: 201 Ga.App. 716,411 S.E.2d 910
• Parties: MARTIN v. The STATE.
• Court: Georgia Court of Appeals

Page 910

411 S.E.2d 910

201 Ga.App. 716

MARTIN v. The STATE.

No. A91A1157.

Court of Appeals of Georgia.

Nov. 1, 1991.

Lynwood D. Jordan, Jr., Cumming, for appellant.

Garry T. Moss, Dist. Atty., T. Russell McClelland III, Gregory A. Hicks, Asst. Dist. Attys., for appellee.

BEASLEY, Judge.

Defendant appeals his convictions of possession of a controlled substance, OCGA § 16-13-30, and theft by taking a motor vehicle, OCGA § 16-8-2. On appeal he enumerates as error the trial court's denial of his motion to suppress and further contends that the evidence was insufficient to sustain his conviction of possession of marijuana. With regard to the theft by taking conviction, which is not connected, he urges error in the admission of certain testimony referring to what he contends was similar transaction evidence.

1. (a) Defendant's motion to suppress was first heard in November 1987 and granted. A few days later, the State filed a motion for rehearing, to present further evidence. A hearing was held, the original order was vacated, and the motion to suppress was denied.

At trial, the following evidence was introduced. At 1:00 a.m., on July 3, 1987, a deputy sheriff stopped defendant's vehicle after it twice left the road. A license check revealed defendant was driving with a suspended license and he was arrested. When defendant refused a DUI test after being administered a field test, the arrest was compounded for driving under the influence. Defendant advised the deputy that the vehicle was rented. The officer, who was unable to remove the vehicle from its location, decided that it was unsafe to leave it there because it would cause a road hazard the next morning since it would be blocking the driveway of a bank.

Defendant asked if someone could come get the vehicle but was unable to give the deputy a definite time when this could be accomplished, so the officer called for a wrecker. The deputy then began an inventory search of the vehicle and was aided by two police officers who arrived as back-ups. The officers found marijuana in a cooler in the back seat of the car and in a drink holder in the front seat and found marijuana cigarette butts in the ashtray.

The original grant of the motion to suppress was predicated upon the failure to introduce evidence of an inventory policy on the part of the sheriff's department. The State moved for a rehearing to permit the introduction of evidence which would establish that such a policy was in existence at the time of the search. Because no transcript of the hearing is provided the record is silent as to what transpired. Defendant now argues that because the arresting officer did not know of such policy the fact that such policy was in existence would not validate the search.

Reconsideration of a ruling on a motion to suppress is permissible. Chastain v. State, 158 Ga.App. 654, 281 S.E.2d 627 (1981). Accord Martinez-Rodriguez v. State, 195 Ga.App. 491, 493(4), 393 S.E.2d 748 (1990).

Whether there was a department inventory policy, and whether the officer knew it, if there was one, is not determinative of the issue although the existence or nonexistence of a policy would be relevant. "[I]nventory searches have been upheld because they serve three legitimate interests: (1) protection of the property while in custody; (2) protection of the police from potential dangers; and (3) protection of the police against claims of lost or stolen property." Strobhert v. State, 165 Ga.App. 515, 301 S.E.2d 681 (1983). "Justification of such a search, however, is premised upon the validity of the impoundment of the vehicle." Id. "Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. See South Dakota v. Opperman, 428 U.S. 364 (96 SC 3092, 49 LE2d 1000) (1976)." Whisnant v. State, 185 Ga.App. 51, 52(2), 53, 363 S.E.2d 341 (1987). "Where the impoundment is unreasonable the resulting inventory search is invalid. [Cit.]" State v. King, 191 Ga.App. 706, 707, 382 S.E.2d 613 (1989).

" '[A] police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve it. They are permitted to take charge of property under broader circumstances than that.' Mooney v. State, 243 Ga. 373, 375, 254 S.E.2d 337 (1979). Although absolute necessity is not required, however, a seizure must still be reasonable under the circumstances of a case, and the rationale for inventory searches must inhere in the decision to impound. [Cits.]" Strobhert, supra 165 Ga.App. at 515, 301 S.E.2d 681. See State v. Ludvicek, 147 Ga.App. 784, 785, 250 S.E.2d 503 (1978).

The circumstances here demonstrate the action of the officers in impounding and inventorying the vehicle was reasonable when measured against the Fourth Amendment's interest in protecting the individual's right to privacy. See Gooden v. State, 196 Ga.App. 295, 395 S.E.2d 634 (1990); Duvall v. State, 194 Ga.App. 420, 390 S.E.2d 647 (1990); Jones v. State, 187 Ga.App. 421, 370 S.E.2d 784 (1988); State v. Gilchrist, 174 Ga.App. 499(1), 330 S.E.2d 430 (1985). There was no error in vacating the original order nor in thereafter denying the motion to suppress.

(b) Defendant contends that the evidence did not support the verdict because of the principle that mere presence in the vicinity of contraband, without more, does not establish possession. See Ridgeway v. State, 187 Ga.App. 381, 382, 370 S.E.2d 216 (1988). There was more than presence. "Possession can be proven by circumstantial as well as direct evidence." Norton v. State, 195 Ga.App. 737, 738, 395 S.E.2d 34 (1990). Whether the circumstantial evidence is sufficient to exclude every reasonable hypothesis save that of defendant's guilt is a question for the jury unless the verdict is insupportable as a matter of law. Brewer v. State, 156 Ga.App. 468(2), 274 S.E.2d 817 (1980).

There was no evidence that anyone else had equal access to the car and the items were found in places in close proximity to and within the control of the driver. Mendez v. State, 185 Ga.App. 1, 363 S.E.2d 262 (1987); Fears v. State, 169 Ga.App. 172, 173(1), 312 S.E.2d 174 (1983). The evidence was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt.

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