Mobley v. State

• Decision Date: 25 October 1973
• Docket Number: No. 48381,No. 2,48381,2
• Citation: 130 Ga.App. 80,202 S.E.2d 465
• Parties: Kenneth D. MOBLEY v. The STATE
• Court: Georgia Court of Appeals

Page 465

202 S.E.2d 465

130 Ga.App. 80

Kenneth D. MOBLEY v. The STATE.

No. 48381.

Court of Appeals of Georgia, Division No. 2.

Oct. 25, 1973.

J. S. Hutto & Associates, Randall M. Clark, G. Carroll Palmatary, Brunswick, for appellant.

Glenn Thomas, Dist. Atty., Jesup, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal supported by the requisite review certificate is from two intermediate trial court orders. One of these orders denied the accused's discovery motion seeking to obtain for examination by defendant's own experts the evidentiary substance alleged to be marijuana. The other ruling denied a motion to suppress the evidence which the police officers had taken from defendant's automobile at the time he was halted for a speeding violation.

While on patrol duty at approximately 3 a.m. two Brunswick police officers riding in a marked police car had their attention called to the defendant's automobile as he was not only exceeding the speed limit but apparently riding his brakes. When defendant's vehicle was halted he descended on the driver's side and walked toward the patrol car where the police officer who had been driving met him and asked for his operator's license. The other officer meanwhile proceeded to defendant's parked automobile because of his observing another individual to be a passenger.

There was a conflict in the testimony as to the manner in which the search of the car was made which resulted in seizure of a bag later asserted to be marijuana. The state's version sought to make a case of 'clear view' in that the police officer stated that while looking for weapons by means of shining his flashlight around the interior of the car through its windows he saw the bag on the floor between the front seat and the brakes. As to his consequent search, his words emphasized that 'I wasn't searching the automobile; I'm searching for my own protection.' (T. 14). Since the passenger was a female whose conduct caused no suspicion he was apparently apprehensive of a 'Bonnie and Clyde' situation. The passenger contradicted this testimony, she stating the officer had opened the left front door without permission and while using the flashlight 'felt around.' She also testified she had not seen the bag. No search was made of the glove compartment nor of the locked trunk.

Defendant enumerates the following errors: '(1) The court erred in its ruling that the case fell within 'the plain view' area. (2) The court erred in its ruling that there was no search involved in the case. (3) The court erred in its ruling that this was not a search incident to a traffic violation. (4) The court erred in overruling discovery motions for the defendant.'

1. A search of a vehicle may not be made incident to the arrest of the driver for a mere traffic violation. Rowland v. State, 117 Ga.App. 577, 161 S.E.2d 422. The reason for this limitation is explained in these words in Amador- Gonzalez v. U.S., 391 F.2d 308, 316 (5th Cir. 1968): 'Since incidental searches are limited to fruits of the crime or instrumentalities used in the commission of the crime for which the arrest is made, there can be no lawful incidental search following an arrest for a traffic violation. There are no fruits or instrumentalities of the crimes of unlawful parking, speeding, driving without registration or license . . . Since there are no fruits or instrumentalities of such crimes, there can never be a reasonable incidental search no matter how lawful the arrest.'

2. This limitation does not prevent a reasonable search upon the person detained and the area within such person's immediate presence for the purpose of 'protecting the officer from attack.' Code Ann. § 27-301. Accordingly, the officer was entitled to make a reasonable search of the immediate area for weapons. The officer here testified this to be his intent in looking in the car. His actions would therefore fall within Code Ann. § 27-301 providing they were reasonable.

3. Were the policeman's actions here valid? The answer must depend on the officer having reasonable cause for belief that the contents of the automobile offend against the law. Carroll v. U.S., 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790; Vaughn v. State, 126 Ga.App. 252, 255, 190 S.E.2d 609. The state's brief at page 2 argues: 'The police officer was merely doing his duty in protecting himself and his riding partner in merely going up to the parked vehicle that contained another passenger and just happened to observe and see in plain and clear view the clear plastic bag containing green vegetation in the said automobile. Upon recognizing the clear plastic bag of green vegetation, the officer then opened the door and seized this contraband item.' But the transcript does not support this assertion as to the facts. We quote all the pertinent portions from the transcript: '(S)o I walked around, shined my light around there and the lady was sitting there in the front. So I walked all the way around, just looking, you know, for any kind of weapon or anything; that's what we mostly be checking out for. There was a bag sitting right down there, probably by the brakes, you know, where the brakes down there . . . There was a bag sitting there. Q. A bag of marijuana? A. After we examined it, had it examined to find out it was marijuana. Q. It was marijuana? A. Yeah. . . . Q. What was it that you saw down there? A. I saw a bag laying down there. I later found, after examining it, it was marijuana.' (T. 12, 13). And later in the transcript, the police officer testified that: 'And then I shined my light around in there, and I saw this bag. Of course, it was sitting there right between, where I could see it in the brakes down there . . .' (T. 14).

A further reference to the article is on page 16 of the transcript where the police officer said 'The bag was in the front, where the steering wheel-this is the steering wheel right here (gesturing); okay, and the brakes right here, and the bag was sitting, it's between the brakes and the steering wheel.'

The foregoing establishes only that the police officer saw a bag which is not described as having been transparent. It is not described as being 'clear plastic.' Nor does the officer state that his observation of that specific bag or its type or its contents would cause him to have a reasonable belief that it contained contraband. It was only later that a physical examination disclosed the contents to be marijuana.

As to the state's assertion that the contents were seen to be 'green vegetation,' this answer was eliminated from consideration by us as the answer containing these words was eliminated by the trial judge sustaining the defense objection. (T. 13). We are limited to the facts contained in the record on appeal. Hunt v. Denby, 128 Ga.App. 523, 526, 197 S.E.2d 489; Tingle v. Arnold, Cate & Allen, 129 Ga.App. 134, 199 S.E.2d 260. 'Error must appear from the record sent to this court by the clerk of the trial court.' Moye v. State, 127 Ga.App. 338, 341, 193 S.E.2d 562, 564. Furthermore, the term 'green vegetation' would apply to such lawful viands as collard greens, mustard greens, and turnip greens. ¹

('The 'plain view' doctrine is applicable)...