State v. Scott, 62583

• Decision Date: 08 October 1981
• Docket Number: No. 62583,62583
• Citation: 159 Ga.App. 869,285 S.E.2d 599
• Parties: The STATE v. SCOTT.
• Court: Georgia Court of Appeals

Page 599

285 S.E.2d 599

159 Ga.App. 869

The STATE v. SCOTT.

No. 62583.

Court of Appeals of Georgia.

Oct. 8, 1981.

Sam B. Sibley, Jr., Dist. Atty., William H. Lumpkin, Asst. Dist. Atty., for appellant.

James M. Thompson, Larry I. Smith, Augusta, for appellee.

QUILLIAN, Chief Judge.

The state appeals from the grant of the defendant's motion to suppress evidence seized by the police during an investigatory incident involving the defendant's automobile.

Detective Joe Reames of the Augusta Police Department was investigating a burglary of a wholesale grocery in which cartons of cigarettes were the only items known to have been taken. No tax stamps had been affixed to the cigarettes as a wholesale grocer is not required to affix stamps until the cigarettes are sold. A wallet was found at the scene of the burglary belonging to the co-defendant Garfield Surry. Surry was arrested and he named the defendant as an accomplice. While Surry was being transported downtown in a police car he pointed out an automobile parked at a service station as the one used to transport the stolen cigarettes and identified it as belonging to the defendant. The officer checked the license number of the vehicle and verified that it was registered to Randolph Scott--the defendant. Thereafter the officer approached the car "to determine if there was any evidence of the crime located within the vehicle." Detective Reames stated that he saw three packs of cigarettes on the front seat. He walked around the car and "peered in from several different vantage points and in so doing, was able to make a determination that the packs of cigarettes on the front seat of the automobile had no Georgia tax stamp affixed." The officer requested a tow truck and had the vehicle impounded.

A search warrant for the car was obtained and approximately 30 packages of cigarettes--without tax stamps, were found and removed from the car. At the hearing on the motion to suppress the state contended the detective's inspection at the service station came within the "plain view" exception to the requirement for obtaining a search warrant prior to a search and seizure. However, the trial court held there was a "three-pronged test in order to have a plain view exception [as] set out in Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022 [2031], 20 L.Ed.2d 564 ... (1) the object must be inadvertently discovered; (2) the police officer must have a legal right to be in a position to make the discovery; and (3) it must be immediately apparent that the object is contraband or fruits of a crime." The judge found "the inadvertence requirement as being the law of this state, Lentile v. The State, 136 Georgia Appeals 611, 614 ; Lowe v. The State, 230 Georgia 134, 163 ..." The trial court further found that the "plain view exception [to the warrant requirement] must be unmotivated by any desire to locate incriminating evidence.' Berger v. The State, 150 Georgia Appeals 166, 169 ..." The state appeals from the trial court's ruling suppressing the evidence found in the defendant's automobile. Held :

1. We disagree with the trial court's ruling for a number of reasons. First, the officer viewed the interior of the defendant's vehicle from the outside of the car where it was parked at a public service station and where the officer had a legitimate right to be. The U.S. Supreme Court has held that "[a]n examination of a boat with a search light [from the deck of an adjacent Coast Guard ship] before boarding her is not an unconstitutional search, and discovery thereby of illicit liquor is admissible in evidence." United States v. Lee, 274 U.S. 559(5), 47 S.Ct. 746, 71 L.Ed. 1202. "It has long been settled that objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence." Harris v. United States, 390 U.S. 234, 236(5), 88 S.Ct. 992, 993, 19 L.Ed.2d 1067; Accord: Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 446, 68 L.Ed. 898 ("defendant's own acts and those of his associates disclosed" the incriminating evidence); Ker v. California, 374 U.S. 23, 43, 83 S.Ct. 1623, 1635, 10 L.Ed.2d 726 ("the officer merely saw what was placed before him in full view.").

2. Secondly, we agree with the state's contention that Coolidge v. New Hampshire, 403 U.S. 443, 469, 91 S.Ct. 2022, 2040, 29 L.Ed.2d 564 does not require exclusion of the evidence seized from defendant's automobile. The trial court found "the inadvertence requirement" of Coolidge "as being the law of this State" and any claim by the state for the " 'plain view exception must be unmotivated by any desire to locate incriminating evidence.' " We cannot agree with this latter statement. The trial court cited Berger v. State, 150 Ga.App. 166, 169, 257 S.E.2d 8, supra, and Lowe v. State, 230 Ga. 134, 136, 195 S.E.2d 919, supra, as authority for his holding. Both cases found that evidence seized during a search was admissible and gave as one of the reasons that the evidence was discovered inadvertently and unmotivated by any desire to locate incriminating evidence. We do not disagree with either of those findings for admission of evidence, but the obverse of those rulings does not logically follow for exclusion of evidence--i.e. that it is required in all cases in which the state claims a "plain view" exception that the finding must be "inadvertent" and "unmotivated by any desire to locate incriminating evidence."

Federal courts, in interpreting Coolidge's triumvirate: (1) the initial intrusion must have been lawful, (2) the discovery of the evidence must have been inadvertent, and (3) the incriminating nature of the evidence must have been immediately apparent; have held that "[t]he expectation that such evidence will be discovered does not preclude operation of the plain view exception to the warrant requirement." United States v. Cushnie, 488 F.2d 81, 82 (5th Cir. 1973); U.S. cert. den. 419 U.S. 968, 95 S.Ct. 233, 42 L.Ed.2d 184; Accord: United States v. Worthington, 544 F.2d 1275 (5th Cir. 1977), U.S. cert. den. 434 U.S. 817, 98 S.Ct. 55, 54 L.Ed.2d 72--see fn.4 at 1280; United States v. Bolts, 558 F.2d 316, 320 (5th Cir. 1977). The basis for such holding is obvious. Coolidge's requirements apply to situations wherein the police have probable cause in advance of the search to expect to find the evidence which they subsequently seize. See Coolidge v. New Hampshire, 403 U.S. at 470, 91 S.Ct. at 2040. Thus, if probable cause to search existed the agents should have procured a warrant prior to the search. However, if the police only suspect such evidence might be present--or are hopeful it will be present, this standard has been held insufficient to justify issuance of a warrant. Wong Sun v. United States, 371 U.S. 471, 479, 83 S.Ct. 407, 9 L.Ed.2d 441. Accordingly, defendants attempt to take advantage of both sides of the issue. If probable cause exists for a search they claim the "plain view" of incriminating evidence will not serve as a basis for admissibility because the discovery was not inadvertent. Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 2038, supra. Conversely, if probable cause did not exist for the search, and the police relied only upon suspicion or hope, then they can argue the entire search is void--even though...