344 Ga. App. 827
Ga. Ct. App.2018Background
- On March 9, 2009, officer stopped Kelly Stroud after observing a wide right turn that crossed into the opposite lane; officer discovered Stroud’s license was suspended, arrested him, and handcuffed him.
- After arrest, officers searched/impounded Stroud’s car and seized a glass pipe and ~0.06 g of cocaine from between the driver’s seat and center console; inventory sheet did not list these items.
- At the suppression hearing the arresting officer gave inconsistent testimony about whether the search occurred incident to arrest or as part of an impoundment inventory and gave no clear basis for immediate impoundment or for efforts to allow retrieval by others.
- Stroud admitted driving on a suspended license and testified that he had recently dropped off a passenger; he denied knowledge or ownership of the contraband and requested jury charges on equal access and circumstantial evidence.
- Jury convicted Stroud of possession of cocaine, failure to maintain lane, and driving with a suspended license; trial court denied suppression and refused the requested circumstantial-evidence and equal-access charges; post-trial motions were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for failure to maintain lane (OCGA § 40-6-48) | State: officer’s observation of weaving supported conviction | Stroud: no proof the roadway had clearly marked multiple lanes | Reversed — State did not prove roadway was divided into clearly marked lanes; conviction vacated |
| Legality of vehicle search / motion to suppress | State: search lawful under impound-inventory exception | Stroud: search was either incident to arrest or an unsupported impound/inventory (Fourth Amendment violation) | Vacated denial of suppression and remanded for findings on whether impoundment was reasonably necessary and whether seizure occurred during inventory vs. incident-to-arrest |
| Equal-access jury instruction | Stroud: charge needed because contraband was in an area accessible to passengers | State: not applicable because no other passenger present at stop | Abandoned on appeal — trial court’s refusal deemed appropriate given no presumption-of-possession instruction was given |
| Circumstantial-evidence jury instruction (former OCGA § 24-4-6) | Stroud: requested statutory language required where circumstantial evidence exists | State: standard circumstantial-evidence charge given suffices | Reversed conviction for possession — refusal to give requested charge was plain error because the case relied entirely on circumstantial evidence and the requested charge was required on written request |
Key Cases Cited
- Arizona v. Gant, 556 U.S. 332 (search-incident-to-arrest limits; vehicle searches require arrestee access or reasonable belief of vehicle-related evidence)
- Stewart v. State, 288 Ga. App. 735 (requirement that roadway be shown to have clearly marked lanes for lane-violation conviction)
- Humphreys v. State, 287 Ga. 63 (impoundment valid only where some necessity exists; inventory searches premised on valid impoundment)
- Mims v. State, 264 Ga. 271 (trial court must give former OCGA § 24-4-6 charge on written request when case includes circumstantial evidence)
- Stanbury v. State, 299 Ga. 125 (failure to give required jury instructions can constitute plain error affecting fairness)
- Grimes v. State, 303 Ga. App. 808 (distinguishes search-incident-to-arrest and impound-inventory exceptions for vehicle searches)