State v. Handspike, 53514

• Citation: 142 Ga.App. 104,235 S.E.2d 568
• Decision Date: 07 April 1977
• Docket Number: No. 53514,53514
• Parties: The STATE v. W. D. HANDSPIKE.
• Court: United States Court of Appeals (Georgia)

Page 568

235 S.E.2d 568

142 Ga.App. 104

The STATE v. W. D. HANDSPIKE.

No. 53514.

Court of Appeals of Georgia, Whole Court.

April 7, 1977.

Rehearing Denied April 27, 1977.

Hinson McAuliffe, Sol., Charles R. Hadaway, Asst. Sol., Atlanta, for appellant.

Isaacs, Comolli & Polonsky, Thomas K. Isaacs, John M. Comolli, Atlanta, for appellee.

DEEN, Presiding Judge.

The State offers two theories, concededly contradictory, to uphold the validity of this search and seizure: one, that the search and seizure is valid under the Terry v. Ohio "stop and frisk" rationale; two, that the appellee was under lawful arrest and the search and seizure was a valid incident thereof.

1. The facts of this case justify the officer's approach of a car, dangerously parked at night on a one-way street marked with "No Parking" signs. The policeman's testimony was that his initial interest in the vehicle was its location rather than the activity which might have been taking place inside. Under this set of circumstances, coupled with the presence of wine and glasses in the car, the smell of alcohol on the appellee's breath, and the presence of suspected juveniles, the officer's request for the presentation of a driver's license for identification was proper. Anderson v. State, 123 Ga.App. 57, 179 S.E.2d 286. In the interest of effective crime prevention and detection ". . . a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889. And in the course of this investigation the discovery of the revolver on the floor of the appellee's car amply justified a "pat down" for other weapons though not for a "full" search. Id., 392 U.S. at 26, 88 S.Ct. 1868. ". . . (T)here must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Id., 392 U.S. at 27, 88 S.Ct. at 1883. And in the course of this "pat down" of the appellee, the discovery of the "small little bulge," which the officer testified he thought might have been some sort of weapon, justified the search itself and the seizure of the "bulge" from the concealment of the appellee's clothing. "The sole justification of the search . . . is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer." Id., 392 U.S. at 29, 88 S.Ct. at 1884.

The "small little bulge" turned out to be an opaque rolled-up manila envelope. The officer testified that he knew when the bulge was revealed that it was not a gun or knife. The officer took the envelope and opened it and only then discovered a quantity of marijuana less than an ounce. At the point that the officer discovered that the "bulge" was only an opaque envelope and not a weapon, his authority to further search inside the envelope under Terry ended. "At that point the 'frisk' ceased being a search for weapons and became a search for evidence. 'Unlike a full search, a frisk is conducted solely for the purpose of insuring the safety of the officer or of others nearby, not to procure evidence for use at a subsequent trial.' Jones v. State, 126 Ga.App. 841, 844, 192 S.E.2d 171, 174." Brown v. State, 133 Ga.App. 500, 501, 211 S.E.2d 438. ". . . (A) 'frisk,' if legal at all, is such only in exceptional circumstances and only for the very limited purpose of assuring the officer that the suspect whom he must accost is not going to turn upon him with a weapon . . . A thorough search of the suspect such as to turn up a small amount of marijuana on her person can never be justified by referring to it as a 'frisk.' Holtzendorf v. State, 125 Ga.App. 747, 188 S.E.2d 879." L. B. B., III v. State, 129 Ga.App. 163, 198 S.E.2d 895. When the officer here discovered the bulge was not a weapon his authority to search further ended, and his intrusion into the "small little" envelope, because of his "interest" in the contents rather than a concern for his own safety, was a "general exploratory search" not justified under the Terry ruling.

2. The State urges that the search and seizure can be upheld as incident to a "lawful arrest." Code Ann. § 27-301.

We disagree. The appellee was not "under arrest" at the time of the search. The evidence shows that the officer approached the appellee's vehicle initially because of the hazard it presented to other traffic, and became suspicious when he discovered wine and cups in the car. He did not see the appellee furnish wine to anyone, did not see anyone drinking it, and smelled alcohol only on the appellee's breath. The policeman testified that the appellee said he had given the "other girls" some wine and that to the officer the "other girls" appeared to be juveniles and that he knew they were high school students (though apparently he did not determine that the "other girls" were in fact under 18 until after the search of the appellee and the seizure of the marijuana.)

The officer never informed the appellee that he was under arrest for any crime. What he did do was ask the appellee to step out of the car and present his driver's license; this was proper under the circumstances. ". . . (C) ircumstances short of probable cause for arrest may justify...