158 Ga. App. 312 | Ga. Ct. App. | 1981
Search and seizure. Kenny Brown and Vickie Brannen are charged with violations of the Georgia Controlled Substances Act. Brown additionally was charged with driving under the influence of intoxicants, making improper turns, driving without a license, and driving while his license was suspended. Ms. Brannen additionally was charged with public drunkenness. Prior to indictment, both defendants have moved to suppress certain evidence and for a Jackson-Denno hearing on the voluntariness of certain statements. At the preliminary hearing, the trial court suppressed the evidence and the motion for the Jackson-Denno hearing was abandoned. The state brings this appeal to the suppression of the evidence. Held:
The evidence relevant to this appeal indicates that police officers were alerted that a man and a woman on the premises of a service station appeared to be drunk. A police vehicle was dispatched to investigate the report. The officers observed Ms. Brannen in the vicinity of the service station building walking toward what later
Appellants urge that the act of the police officer in reaching into the back seat area of the car amounted to a search of the vehicle and that as there were no exigent circumstances, there was no authority to pursue a warrantless search. Moreover, because the officer went to look solely for a wallet, appellants argue that the search cannot be justified as the result of an inventory or as incident to the arrest of Ms. Brannen or Brown. In a well written and reasoned order, the trial court agreed with the arguments of appellants’ counsel and suppressed the product of the search.
We reverse. It is not disputed that both Brown and Brannen were lawfully arrested. The car was lawfully impounded and was properly parked in the impounding lot at the police station. There is no contention that the police officer did not have an absolute right to be in the impounding lot or that he did not have a right to look into the car for a black wallet. Lastly there is no contention that the contents or at least the uppermost contents of the brown bag were not in plain view. The only argument of the appellants and the finding of the trial court is that the reaching into the opened car to remove contraband that was in plain view constitutes a search and in the absence of exigent circumstances that search had to be authorized by a warrant. This argument is tantamount to one that even where an officer is, for instance, in a bedroom lawfully, and sees contraband in plain view in an open closet, the officer may not seize the contraband without first obtaining a search warrant.
This contention has been considered and rejected by this court. A police officer may seize what is in plain sight if, as here, he is in a place where he is constitutionally entitled to be. Ker v. California, 374 U. S. 23 (83 SC 1623, 10 LE2d 726); Harris v. United States, 390 U. S. 234 (88 SC 992, 19 LE2d 1067); Green v. State, 127 Ga. App. 713, 715 (194 SE2d 678). Where what is accomplished is nothing more than such a plain view seizure, there is no search at all. Grimes v. United States, 405 F2d 477 (5th Cir. 1968); Lewis v. State, 126 Ga. App. 123 (190 SE2d 123). Under the facts of this case, the contraband was immediately apparent to the officer so that the “plain view” doctrine was fully applicable. Cook v. State, 134 Ga. App. 712, 715 (3) (215 SE2d 728). See Chambers v. State, 154 Ga. App. 620, 628 (6) (269 SE2d 42); Parks v. State, 150 Ga. App., 446, 447 (1) (258 SE2d 66); Bryan v. State, 137 Ga. App. 169, 170 (D) (223 SE2d 219); Lentile v. State, 136 Ga. App. 611, 614 (222 SE2d 86); Brewer v. State, 129 Ga. App. 118, 119 (199 SE2d 109). It follows that the trial court erred in
Judgment reversed.