State v. Thomason

• Decision Date: 19 March 1980
• Docket Number: No. 58701,58701
• Citation: 265 S.E.2d 312,153 Ga.App. 345
• Parties: The STATE v. THOMASON.
• Court: Georgia Court of Appeals

Page 312

265 S.E.2d 312

153 Ga.App. 345

The STATE v. THOMASON.

No. 58701.

Court of Appeals of Georgia.

Argued Oct. 3, 1979.

Decided Feb. 7, 1980.

Certiorari Denied March 19, 1980.

William J. Smith, Dist. Atty., Tasca A. Williams, Asst. Dist. Atty., for appellant.

John C. Swearingen, Jr., Ben B. Philips, Columbus, for appellee.

CARLEY, Judge.

On the afternoon of August 4, 1977, an officer of the Columbus Police Department received a radio call to investigate a report of "a person slumped over the wheel" of a green 1972 Lincoln Continental, bearing a given Georgia tax number, parked in a designated shopping center parking lot. On arrival there the officer saw the described vehicle exiting the parking lot. He pulled out behind the Lincoln onto the roadway and followed it about two city blocks. When he turned on his blue light and blew his horn, the driver, appellee Thomason, moved over to the curb and "properly" parked the automobile on the right side of the roadway. In its final location, the car was not illegally parked. Whether or not she was responding to the officer's question or volunteering the information is in dispute, but Mrs. Thomason stated that she had been drinking. Because of this statement and other indications such as "loud odor of alcohol, unsteady on feet, etc.," the officer arrested her for DUI. Mrs. Thomason resisted vigorously and the officer handcuffed her. After placing Mrs. Thomason in his patrol car, the officer retrieved her purse from the Lincoln and to make sure the parked car was "perfectly safe" he rolled up the windows and locked both doors, taking the keys with him. After transporting Mrs. Thomason to headquarters for a breath test, the officer returned and called for a wrecker to tow the car to storage. Prior to the car's removal he inventoried its contents, finding in the back seat a large amount of men's clothing, some real estate signs and a brief case containing a pocket calculator. In the front seat on the hump of the floorboard underneath the dash the officer found a "rose colored overnight bag." When he unzipped and opened the bag, he saw a large amount of United States currency. Upon further investigation at headquarters the bag was found to contain $14,614 in cash, and, in a side pocket, several pieces of paper suspected of being lottery talley sheets were also found.

Appellee Thomason was charged with driving under the influence and commercial gambling and indicted by the grand jury. She filed a motion to suppress evidence "alleged to be money or lottery paraphernalia" seized from the automobile. Her motion was denied. After her trial ended in a mistrial she filed a motion to reconsider the initial ruling on her motion to suppress, seeking the suppression of "all evidence seized as a result of an illegal arrest, search and seizure . . ." Her motion for reconsideration was granted and at the hearing the trial judge, expressing his "misgivings" as to the legality of the arrest, granted the motion to suppress. However, the order itself does not indicate upon what ground the evidence was suppressed. The appeal thus places at issue the legality of the stopping of the automobile, the arrest of Mrs. Thomason for DUI and impoundment of the automobile and inventory search.

1. With regard to the initial investigative stop of the automobile, the state contends it was reasonable even though the arresting officer did not observe weaving or other erratic driving and no traffic violations had occurred. The appellee argues that "(f)actual 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. (Cits.)" Johnson v. State, 233 Ga. 58, 209 S.E.2d 629 (1974). We conclude that regardless of the absence of outward visible indicia of driving under the influence this was one of those situations in which there was "at least articulable and reasonable suspicion" to authorize the stopping and detaining of the motorist. Cf. Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 1401, 59 L.Ed.2d 660, 673 (1979); Franklin v. State, 143 Ga.App. 3, 4(2), 237 S.E.2d 425 (1977) (cert. den., 435 U.S. 950, 98 S.Ct. 1575, 55 L.Ed.2d 799). "A police officer has a limited right to an investigative stop of a person or vehicle. '(C) ircumstances short of probable cause for arrest may justify the stopping of a pedestrian or motorist for limited questioning. (Cits.)' Anderson v. State, 123 Ga.App. 57, 60, 179 S.E.2d 286, 289." Merrill v. State, 130 Ga.App. 745, 751(4), 204 S.E.2d 632, 637 (1974). Given the fact that the officer had received information that the driver of this automobile was slumped over the wheel in a shopping center parking lot, that he was ordered to investigate, and that he first spotted the automobile being driven onto a public thoroughfare, it is obvious that he had a legitimate purpose in stopping the automobile without a traffic violation having occurred in order to ascertain the condition of the driver. Clearly a limited but immediate inquiry was dictated by these circumstances and authorized under the law. Under the evidence the initial stop was reasonable.

2. We also agree with the state that there was sufficient probable cause for the appellee's arrest for DUI. The officer observed that after she got out of the car Mrs. Thomason had a strong odor of alcohol on her breath, her eyes were glassy and bloodshot and she was unsteady on her feet. She admitted she had been drinking and the officer concluded that "she had been drinking quite heavily." When he informed her that she was being charged with DUI and would have to be taken to headquarters to take a breath test, she became violent and abusive and had to be handcuffed.

There is a "difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search." Draper v. United States, 358 U.S. 307, 311, 79 S.Ct. 329, 332, 3 L.Ed.2d 327 (1959). "Under Code Ann. § 27-207 an officer may arrest without a warrant 'if the offense is committed in his presence, or the offender is endeavoring to escape, or for other cause there is likely to be failure of justice for want of an officer to issue a warrant.' (Ga.L.1975, p. 1209). Whether or not an arrest violated this statute depends ' " 'upon whether, at the moment the arrest was made, the officers had probable cause to make it whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (defendant) had committed or was committing an offense.' Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142)" ' Sanders v. State, 235 Ga. 425, 440, 219 S.E.2d 768." Bradford v. State, 149 Ga.App. 839, 840, 256 S.E.2d 84, 85 (1979).

In Lewis v. State, 149 Ga.App. 181, 254 S.E.2d 142 (1979), the defendant was found slumped over the wheel of his car which was in a ditch, and the arresting officer testified that his speech was slurred, there was a strong odor of beer on his breath and he was very unsteady on his feet. This court found these facts to be sufficient to support a conviction of DUI. The similar facts in the instant case are, therefore, sufficient to support a finding of probable cause for the appellee's arrest.

3. The warrantless search and seizure of the currency and lottery paraphernalia presents a more complex issue. The state insists that the search was justified because it was made pursuant to standard inventory procedures of impounded automobiles, one of the most widely recognized exceptions to the warrant requirement which was specifically upheld by the United States Supreme Court in South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

In Opperman the defendant's automobile had been impounded for multiple parking violations and during a police inventory search following standard procedures a bag of marijuana was found therein. The court recognized that "(w)hen vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the...