State v. Key

• Decision Date: 25 October 1982
• Docket Number: No. 63840,63840
• Citation: 296 S.E.2d 60,164 Ga.App. 411
• Parties: STATE v. KEY.
• Court: Georgia Court of Appeals

Page 60

296 S.E.2d 60

164 Ga.App. 411

STATE v. KEY.

No. 63840.

Court of Appeals of Georgia.

Oct. 25, 1982.

Willis B. Sparks, Dist. Atty., G. F. Peterman, III, Asst. Dist. Atty., Macon, for appellant.

O. L. Crumbley, Macon, for appellee.

POPE, Judge.

This is an appeal by the state from the grant of a motion to suppress evidence filed by appellee, Lonnie O. Key, Jr. The material evidence at the motion to suppress hearing consisted solely of the testimony of the arresting officer, which is summarized below.

The officer, a Bibb County Deputy Sheriff, was dispatched by radio to investigate a suspicious person in a car parked on a roadside in Macon at approximately 2:40 a.m. on August 4, 1981. Upon arrival at the reported location, the officer observed a Chevrolet Camaro parked as described with two white males inside. He approached the car and asked the occupants their reason for being there. They responded that they were waiting for a girl to come home. The officer then asked them to exit the car and show him some identification, which they did.

Seeing an object in the back seat of the car he suspected to be a person hiding under a blanket, the officer again approached the car and "reached in and checked" to see if his suspicion was correct. It was not. The suspicious object was a sleeping bag. The officer then observed an ice chest sitting in the floorboard and "checked it." He found nothing but a can of beer inside. He also saw another beer can on the floorboard on the driver's side.

The officer then walked around to the driver's side of the car and, "looking in through the window" with the aid of his flashlight, he "observed a clear plastic bag with a green, leafy substance laying [sic] in the floorboard in front of the driver's seat." He entered the car and seized the suspected marijuana. He then searched the passenger compartment of the car and found quantity of suspected marijuana seeds, a hand rolled cigarette and another plastic bag full of suspected marijuana. The officer told appellant to open the trunk of the car, and five more bags of suspected marijuana were found there. Appellant and his companion were then placed under arrest.

The propriety of this search and seizure depends upon the propriety of the manner in which the initial suspected marijuana was found. If that bag of suspected marijuana was lawfully found and seized, it then would have furnished the probable cause for believing more marijuana was contained in the car, thus justifying the search of the entire vehicle and its contents. See United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). Conversely, if the initial find of suspected marijuana was the product of an illegal search, that evidence and the evidence seized as a result of the subsequent search stemming from the initial find would be inadmissible.

Under the "plain view" doctrine, a law enforcement officer has a right to visually search the entirety of a car from his vantage point on a street or roadside. See State v. Scott, 159 Ga.App. 869, 285 S.E.2d 599 (1982). The viewing need not be motivated by any articulable suspicion. On the contrary, law enforcement officers simply have the right to look into automobiles, so long as they have a legitimate reason and are looking from a place in which they have a right to be (e.g., a street or roadside). Any incriminating evidence they have the fortune to see in plain view may be seized and later admitted as evidence. State v. Scott, supra. Moreover, any additional evidence discovered within the confines of United States v. Ross, supra, would also be admissible evidence.

The only difficulty we find with the search and seizure in this case is that the discovery of the suspected marijuana was subsequent to an unlawful intrusion into the car, that is, the search of the cooler. Whereas the reaching in and checking of the sleeping bag in the back seat was justifiable as a precautionary measure, the opening of the cooler was unmistakably an unlawful search for incriminating evidence. ¹ Because the officer had no probable cause to believe the car contained contraband until he actually saw it later, he was not then authorized to enter the space of the car in order to search for it.

The issue then is whether this unlawful intrusion so tainted the search procedure that the contraband found later in plain view from outside of the car should be excluded as evidence. We hold that this momentary unlawful intrusion of the automobile space, which produced no evidence and was not a contributing factor in the discovery of the contraband, was an insufficient wrong, in and of itself, to require the suppression of the contraband.

Judgment reversed.

DEEN, P.J., and BANKE and BIRDSONG, JJ., concur.

McMURRAY, P.J., and CARLEY, J., concur specially.

QUILLIAN, C.J., SHULMAN, P.J., and SOGNIER, J., dissent.

CARLEY, Judge, concurring specially.

I completely agree with the majority that the trial court erred in granting the motion to suppress evidence in this case. Further, if I could accept the analysis of the factual circumstances postulated by the majority, I could adopt in toto the rationale of the majority opinion. In other words, if the officer actually opened the cooler, this would be, as stated by the majority, "an unlawful search for incriminating evidence." If this were true, the majority would be absolutely correct in also holding that such a "momentary unlawful intrusion of the automobile space, which produced no evidence and was not a contributing factor in the discovery of the contraband, was an insufficient wrong, in and of itself, to require the suppression of the contraband."

However, the majority's finding that the officer's action was "an unlawful search for incriminating evidence" is explained by footnote 1 to the majority opinion as follows: "That the officer reached into the car and opened the cooler is a conclusion on our part based upon what we consider to be the most reasonable interpretation of the officer's testimony that he 'checked' the cooler on the floorboard. Had we interpreted 'checked' as meaning that he merely looked inside an already open cooler, there would be no doubt that the search and seizure in this case was proper." I am unable to accept the majority's "conclusion" that "the most reasonable interpretation of the officer's testimony that he 'checked' the cooler on the floorboard" is that the officer actually reached into the car and physically opened the cooler. In this connection, the trial court, in its written findings of fact, stated as follows: "On August 4th, 1981, at approximately 2:40 A.M., Bibb County Sheriff's Department Deputy Anthony Strickland was dispatched by the radio to Neal Drive in Macon, Bibb County, Georgia for the purpose of investigating what had been determined to be a suspicious vehicle with suspicious persons therein. On arriving on Neal Drive on the morning in question, Officer Strickland observed a green Chevrolet Camaro parked on the shoulder of the road on Neal Drive. On approaching the vehicle, Officer Strickland determined that two males were sitting in the vehicle. The person under the driver's side, the steering column, was determined to be Lonnie O. Key, Jr., and the other person was a passenger in the vehicle. Officer Strickland asked both males to exit the vehicle and asked them to identify themselves at the rear of the vehicle, and they did so. After the two males properly identified themselves, Officer Strickland began a walk around the automobile wherein he observed through one of the windows an ice chest with one beer can. Also on walking around the vehicle, Officer Strickland, on the driver's side of the vehicle, observed a clear plastic bag that contained what he described as a green, leafy material, which he believed to be marijuana, that was in plain view." (Emphasis supplied.)

It is clear the trial judge, who heard the testimony of the witness and observed his demeanor, concluded that the officer's observation (that the ice chest contained one beer can) was made "through one of the windows". Therefore, according to the trial court, the method of observing the contents of the ice chest was the same as that utilized to discover the bag of marijuana on the floor and, thus, both objects of observation were in "plain view". "Factual and credibility determinations of this sort made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous." Johnson v. State, 233 Ga. 58, 209 S.E.2d 629 (1974). Since I believe that we are bound by the trial judge's factual determination in this case, I find no "unlawful search for incriminating evidence" and, for that reason I would reverse the trial court's suppression of the evidence.

I am authorized to state that Presiding Judge McMURRAY joins in this special concurrence.

SHULMAN, Presiding Judge, dissenting.

Because I have...