Salter v. State

• Court: Georgia Court of Appeals
• Writing for the Court: BANKE; CARLEY; DEEN and McMURRAY, P.JJ., and BIRDSONG; DEEN; BIRDSONG
• Citation: Salter v. State, 401 S.E.2d 541, 198 Ga.App. 242 (Ga. App. 1990)
• Decision Date: 05 December 1990
• Docket Number: No. A90A1600,A90A1600
• Parties: SALTER v. The STATE.

Page 541

401 S.E.2d 541

198 Ga.App. 242

SALTER v. The STATE.

No. A90A1600.

Court of Appeals of Georgia.

Dec. 5, 1990.

Rehearing Denied Dec. 20, 1990.

[198 Ga.App. 252] Michael L. Bankston, Camilla, for appellant.

J. Brown Moseley, Dist. Atty., Donald E. Henderson, Asst. Dist. Atty., for appellee.

BANKE, Presiding Judge.

The appellant was convicted of possession of cocaine with intent to distribute based on evidence that a quantity of crack cocaine had been found underneath the back seat of an automobile he was driving. His threshold contention on appeal is that the contraband should have been suppressed as the fruit of an unlawful search or seizure.

Although no transcript of the motion to suppress hearing has been included in the record on appeal, the parties appear to be in agreement that, insofar as the circumstances surrounding the search are concerned, the evidence introduced at trial was identical to the evidence introduced at that hearing. The trial transcript reveals that the circumstances surrounding the search were as follows: Acting in response to information received three days previously from "a concerned citizen" to the effect "there was a [red, 1970 model] Volkswagen coming through down [Hardin Allen Road] selling crack cocaine," the county sheriff and a deputy drove to the location in question, parked on a side road and waited there hoping to "catch the car." At around midnight or 1:00 a.m., a vehicle which sounded to the sheriff like "an old model Volkswagen" came down the road, stopped about a hundred yards from their position and turned off its lights. The officers immediately proceeded toward this vehicle and, as they were doing so, observed another vehicle pull up behind it. Upon reaching the vehicles, the officers turned on their blue lights, and the second vehicle immediately backed up and sped away. The sheriff testified that "[t]he Volkswagen, he wanted to back out, too, but we cut him off."

The officers were able to ascertain at this time that the remaining vehicle was in fact a red Volkswagen and that it was occupied by three persons--the appellant, who was driving, a male passenger seated beside him in the front, and a female passenger seated in the back. The three were immediately removed from the car and searched. Although no weapons or contraband were found on any of them, the appellant and the male passenger were taken into custody, while the female passenger was permitted to leave.

After determining that the Volkswagen belonged to the appellant, the officers asked him to consent to a search of the vehicle, but he refused. The vehicle was then towed to the courthouse, where it was subjected to an "inventory" search, during which two objects described as "homemade pipes" were discovered in a "glove box" on the driver's door. The back seat was then removed from the vehicle, and a "penny matchbox" containing eight pieces of crack cocaine weighing a total of 0.9 grams was discovered on the floor beneath it. Both the male passenger and the female passenger, testifying for the state, denied any knowledge of the contraband. Held:

1. "Whether the search is sought to be justified as incident to the appellant's arrest for possession of cocaine or whether it is sought to be justified by exigent circumstances, it cannot be upheld unless probable cause existed for a belief that the appellant was currently in unlawful possession of cocaine. Under the standard set forth by the United States Supreme Court in Illinois v. Gates, U.S. (103 SC 2317, 76 LE2d 527) (1983), probable cause may be predicated on an informant's tip only if, under the 'totality of the circumstances,' including the 'veracity' and 'basis of knowledge' of the informant, there is a 'fair probability' that contraband or evidence of a crime will be found in a particular place. Id. at 4716." Felker v. State, 172 Ga.App. 492, 494, 323 S.E.2d 817 (1984).

There is no suggestion in this case that the informant revealed to the sheriff the source of his information, nor was the information he provided sufficiently detailed to suggest that it was based on anything more substantial than mere rumor. See generally Clark v. State, 189 Ga.App. 124, 125, 375 S.E.2d 230 (1988). While the tip, combined with the observed presence of the red Volkswagen on the roadway at 1:00 a.m., its attempted clandestine rendezvous with another vehicle, and the flight of the latter vehicle from the scene, certainly gave rise to an articulable suspicion of criminal wrongdoing sufficient to support an investigatory detention, cf. Chumbley v. State, 180 Ga.App. 603, 349 S.E.2d 823 (1986), we do not believe the facts known to the officers after completing their search of the appellant and the other occupants of the Volkswagen were sufficient under the circumstances to establish probable cause for the appellant's arrest for unlawful possession of drugs. Accordingly, we are constrained to hold that the "inventory search" of the vehicle was not authorized and that the trial court erred in denying the appellant's motion to suppress. Compare State v. Stephens, 252 Ga. 181, 311 S.E.2d 823 (1984); Clark v. State, supra; Cichetti v. State, 181 Ga.App. 272(1), 351 S.E.2d 707 (1986); Mines v. State, 167 Ga.App. 766(1), 307 S.E.2d 291 (1983).

2. The foregoing holding renders it unnecessary for us to address the appellant's remaining enumerations of error.

Judgment reversed.

SOGNIER, POPE, BEASLEY and COOPER, JJ., concur.

CARLEY, C.J., concurs in judgment only.

DEEN and McMURRAY, P.JJ., and BIRDSONG, J., dissent.

DEEN, Presiding Judge, dissenting.

I dissent for some of the reasons stated in Division 2 of the dissent written by Judge Birdsong. I believe that under the "totality of the circumstances" test in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the police had probable cause to support warrantless searches of the appellant's person and the car. After the search of appellant's person produced nothing, there still existed an independent probable cause to search the car. The police could have searched the car at the scene, but instead elected to take the car to the police station to search it under more favorable conditions, where they found the cocaine. Regardless of whether it was lawful to arrest appellant at the scene before the cocaine was found, I see no circumstances to indicate that the arrest tainted the subsequent search, or had any effect on the probable cause that continued to exist for the search of the car. The characterization of the search as an inventory taken pursuant to the arrest is not controlling. I agree that for constitutional purposes there was no difference between conducting the search of the car pursuant to probable cause at the scene or at the police station, although arguably the police could have sought a warrant for the search of the car once the decision was made to search it at the station. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

The seizure of the contraband, which provided support for appellant's arrest and conviction, was lawful. For these reasons and those stated in Division 3 of Judge Birdsong's dissent, I would affirm the conviction.

BIRDSONG, Judge, dissenting.

For reasons hereinafter addressed, I would affirm appellant's conviction of the offense of possession with intent to distribute cocaine.

1. The record does not contain a transcript of the suppression hearing, and appellant is not filing as an indigent, pro se appellant. The trial court's motion on its face reflects that in finding the existence of exigent circumstances justifying a warrantless search, the court considered the evidence adduced at the evidentiary hearing of July 13, 1989. It is well established that, in the absence of a transcript of the suppression hearing, we must assume as a matter of law that the evidence adduced at the hearing supported the findings of the court. Brown v. State, 190 Ga.App. 324, 326(2), 378 S.E.2d 908; Santone v. State, 187 Ga.App. 789, 790, 371 S.E.2d 428; compare Brannon v. State, 176 Ga.App. 781(5), 337 S.E.2d 782. This precedent in my opinion is controlling and alone warrants the affirmation of the trial court's ruling denying the motion to suppress.

The majority, however, asserts that "[a]lthough no transcript of the motion to suppress hearing has been included in the record on appeal, the parties appear to be in agreement that, insofar as the circumstances surrounding the search are concerned, the evidence introduced at trial was identical to the evidence introduced at that hearing." Review of the entire record and the appellate brief of the parties reveals no express concession whatsoever by the State to this effect. Nor do I believe that mere silence on the part of the State, regarding the absence of a suppression motion hearing transcript, can result in the creation either of a stipulation or of an admission in judicio that the evidence introduced at trial was in fact identical to that introduced at the suppression motion hearing. Neither should the State's silence prevent this court from exercising its right to base its judgment on affirmative evidence of record, particularly as we have long recognized the existence of "a presumption in favor of the regularity and legality of all proceedings in the superior court." (Emphasis supplied.) Nalley v. State, 147 Ga.App. 634, 635, 249 S.E.2d 685. Accordingly, I find the majority's position inadequate to warrant departure from the precedent of Brown and Santone, supra.

2. Assuming arguendo the State by silence bound this court to accept the evidence at trial as being identical with that introduced at the suppression hearing, I nonetheless remain convinced the trial court did not err in denying the motion to suppress for the following reasons totally independent of Division 1, above.

The record reveals that the police first received information from a "concerned citizen" to the effect that a red...