After the trial court denied his motion to suppress, a Walker County jury convicted David Grimes of possession of methamphetamine. On appeal from the denial of his motion for new trial, Grimes contends that the trial court erred by denying his motion to suppress and fаiling to charge the jury on his equal access defense. Because this case involves a search of an automobile following an arrest, we vacate in part the order denying Grimes’s motion to suppress and remand the case to the trial court for further consideration in light of the United States Supreme Court’s recent decision in Arizona v. Gant, - U. S. - (129 SC 1710, 173 LE2d 485) (2009). We affirm in all other respects.
1. Following the grant or denial of a motion to suppress, we construe the evidence in the light most favorable to uphold the findings and judgment of the trial court.
Postell v. State,
Viewed in this manner, the evidence showed that around midnight on August 29, 2009, an officer with the City of LaFayette Police Department stopped at a local convenience store. While the officer was inside the store, the clerk advised him that a white male, lаter identified as Grimes, had been “fiddling” with a grey vehicle parked in front of the store for the last two hours. The officer decided to investigate and approached the parked vehicle, which did not have a license tag displayed. When the officеr came up to the vehicle, he observed Grimes crouching in the passenger seat next to wires from the car radio that had been unattached from the front console of the dashboard. No one else was in or around the vehicle. The offiсer asked Grimes for identification and inquired about what he was doing in the parking lot. Grimes showed the officer a copy of a traffic citation bearing his name in lieu of a driver’s license and told the officer that he was working on the vehicle’s stereo systеm. The officer radioed the identification information to his dispatcher and learned that Grimes had a suspended driver’s license. At that time, a sheriffs deputy who had been at the convenience store earlier that night arrived on the scene and informed the officer that he had observed Grimes drive into the parking lot. The officer then arrested Grimes for driving on a suspended license. According to the officer, his encounter with Grimes up to the point of the arrest lasted approximately five to ten minutes.
After Grimes was arrested and secured in the back seat of the police car, the officer conducted a search of the interior of Grimes’s vehicle before it was towed and impounded. While doing so, the officer discovered a fanny pаck on the front seat that contained a white substance which tested positive as methamphetamine. 1
(a) Grimes contends that the drug evidence should have been suppressed because the arresting officer lacked reasonable suspiсion to stop and then detain him in the parking lot as required by
Terry v. Ohio,
There are three tiers of policе-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief “seizures” that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the оfficers do not detain the citizen or create the impression that the citizen may not leave. The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, evеn in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.
(Citations and punctuation omitted.)
McClain v. State,
The encounter between the officer and Grimes up to the point of his arrеst was of the first tier because the officer’s words and conduct did not create an impression that Grimes was not free to leave. Having been advised by a concerned store clerk about a suspicious situation, the arresting officer simply approached Grimes’s parked vehicle, asked for identification, and inquired into what Grimes was doing in the vehicle. “The actions of an officer approaching a stopped vehicle, requesting to see a driver’s license, and inquiring about possible criminal or suspicious activity clearly fall within the realm of the first type of police-citizen encounter and do not amount to a stop.” (Citations omitted.)
McClain,
Because there was testimony indicating that the police encounter with Grimes up to the point of his arrest was consensual and involved no coercion or detention, the trial court was authorized to find that the encounter was of the first tier and, therefore, did not require a showing that the police acted with reasonable suspicion of criminal activity. See
Chapman,
(b) Grimes further contends that even if his initial encounter with the officer and subsequent arrest passed constitutional muster, the drug evidence should have been suppressed because the officer’s search of his vehicle was not a proper search incident to arrest under the recent case of Arizona v. Gant, 129 SC at 1710.
In
New York v. Belton,
when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that autоmobile [and] may also examine the contents of any containers found within the passenger compartment.
(Footnotes omitted.) But in Gant, the Supreme Court limited Belton and held that the search-incident-to-arrest exception to the Fourth Amendment warrant requirement applies only to situations (1) where “the arrestee is unsecured and within reaching distance of the *812 passenger compartment at the time of the search,” or (2) where “it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” (Citation and punсtuation omitted.) Gant, 129 SC at 1719 (III).
Nevertheless, even if the requirements imposed by
Gant
for a valid search incident to arrest are not satisfied, a warrantless search of a vehicle still may be valid under another Fourth Amendment exception, such as the exception for inventory searches. See
State v. Heredia, 252
Ga. App. 89, 91 (3) (
The present case involves a search of an automobile following an arrest, and, therefore, falls within the scope of the Supreme Court’s decision in
Gant,
unless the search was a proper inventory search.
Gant,
however, was decided aftеr the trial court conducted an evidentiary hearing and denied Grimes’s motion to suppress, after the trial on the merits, and after Grimes filed his notice of appeal. Under these circumstances, we vacate in part the trial court’s denial of Grimes’s motion to suppress and remand for rehearing by the trial court in light of
Gant.
See
Kollie v. State,
2. Grimes also contends that he is entitled to a new trial because the trial court erred by failing to charge the jury sua sponte on the concept of equal access, which he claims was his sole defense. Although a trial court is required to charge the jury on the defendant’s sole defense even in the absence of a written request, see
Prather v. State,
Under the equal access rule, evidence that someone “other than the owner or driver of the automobile had equal access to contraband found in the аutomobile may or will, depending upon the strength of the evidence,
overcome the presumption that the contraband was in the exclusive possession of the owner or
driver.” (Citation omitted; emphasis in original.)
State v. Johnson,
[e]qual access is merely a defense available to the accused to whom a presumption of possession flows. The trial court did not charge the jury that they could presume that contraband was in the exclusive possession of an automobile’s owner or driver. Thus, even if the evidence authorized a presumptiоn charge, none was given. Accordingly, no presumption arose. It follows that an equal access charge was neither required nor appropriate as a charge on [Grimes’s] “sole defense,” and the trial court did not err in failing to give it.
(Citations and punctuation omitted.)
Prather,
Judgment affirmed in part and vacated in part, and case remanded.
Notes
Although not enumerated as error, we conclude that the testimony of the arresting officer, sheriffs deputy, and forensic chemist who tested the white substance was sufficient to enable a rationаl jury to find Grimes guilty beyond a reasonable doubt of possession of methamphetamine.
Jackson v. Virginia,
The presence of more than one law еnforcement officer does not transform a consensual interaction into a second-tier encounter, where, as here, the totality of the circumstances support a finding that the interaction was a first-tier encounter. See
Cauley,
That Grimes testified at trial to a different version of events does not change the result because “the trial court, and not this Court, resolves issues of credibility and conflicting evidence” in denying a motion to suppress.
Davis v. State,
Given the state of the law at the time of the original evidentiary hearing, the issue of *813 whether there was a proper inventory search was not fully developed or fleshed out at the hearing. Because the record is incomplete regarding whether there was a proper inventory search in this case, we cannot affirm the trial court’s suppression order as right for any reason.