*1 that, instances, in many necessary be would for the driver to walk down the side near gar- road his truck order to collect the bage.’ [Cit.]” experience
Common informs us that motor vehicles now have many shapes many purposes. forms and and serve different vehicles, concept guides broader issue, motor approach our to this Court’s recent decision in Cal- is reflected the U. S. v. Carney, 471 U. S._(105 406) (1985): LE2d ifornia “In increasingly many our society, transpor- mobile for vehicles used only tation can be and are used being transportation not for but for shelter ...” case,
Applying approach a realistic to the and in keeping with the Supreme Court’s ruling Rustin State Farm &c. Ins. Co. Spain Co., State Farm &c. Ins. 356) (1985), we find insured vehicle was equipped one which was convey operator place its from place and to provide place shelter and for eating sleeping occasionally when it was being strictly used conveyance as a at Appellant’s the moment. use of the vehicle at the injury clearly time his was within the normal and intended of the vehicle. Insofar use of a vehicle vehi- as a Clinton, concerned, cle is indistinguishable only case is from distinction being here Kicklighter occupying his was vehicle and injured Clinton fireman appellant’s injury not. Since arose from the use of his vehicle and he was occupying the vehicle at the time, his injury was an (Kelley, supra) “insured event” and was compensable.
Judgment Deen, J., Pope, J., reversed. P. concur. July Decided
Rehearing July denied
Alvin Leaphart, for appellant. Whelchel,
J. Thomas appellee. STATE
69852. THE v. CAMP et al. Judge.
Beasley, appeals State grant appellees’ from trial mo- court’s to suppress. tion The record shows that Detective Starrett received tip purchased could be a certain mobile home a.m., Douglas County. obtaining Around 3:00 without first a search warrant, Starrett, along officers, went mo- Detective with other to the bile home. Detective Starrett went to door he was greeted where buy that he wanted Starrett told Stockton
by David Stockton. living left the agreed upon, and Stockton marijuana. price A some where knocked hall to room and went down the a bedroom door, open, saw crack the door Starrett watched Stockton at door. in the bed- and someone between Stockton and heard conversation *2 thought he could not see. Detective Starrett room whom Starrett the door and bag. reached inside something about a Stockton heard marijuana which sold bag to the room with a of living came back immediately arrested and taken Stockton was to Detective Starrett. present. of officers and over to one the other outside turned the then went into mo- Wynn Detective and Officer back Starrett Starrett had seen Stockton home and back to the bedroom where bile upon the Starrett once the closed bed- get marijuana. knocked go Wynn. They Officer found room door and then entered followed together in bed appellees Terry Camp Regina John and Ruth Poole Georgia arrested them for violation of the Controlled Substances and Detective saw a on the bed which contained a baggie Act. Starrett powder. bag. permit- and Poole were then Camp white He seized the led dressing, dress. the officers them appellees ted to After finished “secured” The officers living into the room and them couch. systematic search. Officer then returned to the bedroom and made a found floor Wynn purse searched Poole’s which he had on the beside purse In the a a bag containing powder, the bed. he found razor blade, and a straw. These were seized. Detective Starrett testified that as power amphetamines, the crime lab later identified the white but sure powder bag being he was not from which identified. bed, bag nearly of containing the headboard officers found bedroom, pound marijuana. After the search completing of the living they appellees officers returned room. As from escorted home, Officer a cushion couch Wynn looked beneath on the and marijuana. found another cache pleaded guilty possessing selling
David Stockton mari- juana, Georgia Camp violations Act. of the Controlled Substances suppress Poole moved to the evidence seized search of the mo- home or bile because the search was made without a search arrest in its granted suppress entirety warrant. trial court the motion to into holding that intrusion the bedroom was both unwarranted and unreasonable. evidence, suppress each filed a alleging Defendants motion Amendment,
a violation of the federal Fourth constitutional state against Const., unreasonable searches and seizures I, I, XIII), 17-5-2, Art. Sec. OCGA federal Par. 17-5-1 §§ process argu- state due took heard provisions. court evidence and ment, after which both the state briefs re- and defendants submitted respective their their citing documenting versions of the facts and ar- guments. posited positions plainly, repeating nearly Defendants their hearing: verbatim what stated at the outset “Defendants base their motion to suppress on Fourth Amendment and the Constitution the State of Their Georgia.” argument cited au- thority a number Georgia sup- and U. S. Court cases port of their Fourth Amendment argument claim. No was made pursuit Georgia of the nominal invocation Constitution the Code provisions. The Fourth Amendment was the entire focus of presentation, having responded the state circum- stances authorized the After warrantless search. the two officers testi- fied, the argument briefs, court heard indicating and invited would do further research the Fourth Subsequently Amendment. it issued the order which appealed to this court. It concluded that the Fourth “exigent Amendment had violated because circum- stances” were not present and that defendants “reasonable ex- pectation privacy” so that the items seized the bedroom were inadmissible. The court rejected application also of “the ‘search incident to a exception.” baggie lawful arrest’ toAs with white bed, seen “plain court ruled that view” did not authorize seizure place because the officer was not “at a where he is *3 entitled be” baggie. to when he saw the
On appeal, granting the state claims as error the of the motion. Although statute, its brief it argues part that the OCGA 17-5- § 1, authorizes a pursuant person’s to lawful arrest “within the presence” immediate purposes, argument certain enumerated that here, is irrelevent appellees point out.1 As the devel shown opment case, defendants not claim pursuing were of violation statutory rights, nor did trial court address such an Even issue. with, if the if complied statute were federal constitutional violated, involved here was the latter would of course control. Thus the state by citing can take little solace adherence to state statute.
The same would application be true of an of the state constitu- which, tion protective when its are restrictions less of individual rights than the principles exposited by federal constitution’s Court, U. S. Supreme yield supreme must law the land. De- claim, fendants did not advance the state constitutional nor was such by anyone. addressed having So we would consider it as been aban- State, 660, (2) (194 Kingston v. App. doned below also. 127 Ga. 661 675) (1972); Lawrenceville, (308 City SE2d Cox v. App. 168 Ga. 119 224) (1983). Balkcom, (70 9, SE2d See Solesbee v. 339 U. S. 11 SC 1 Note, however, “(3) purposes Discovering statutory seizing two are: or person arrested; Discovering seizing any fruits the crime for which the or has been or instruments, articles, things being used in which are used or which have been person (Emphasis supplied.) commission of crime for which has been arrested.” 594 errors of law corrects
457,
appellate court
94 LE
Velkey
is taken.
proper exception
by the trial court where
committed
224)
(105
(1958);
State,
v.
172
Butler
Grimes,
v.
SE2d
628) (1984). Thus,
(1) (323
the state
405,
whether
SE2d
of this
the circumstances
were secured
guarantees
constitutional
in question,
drawn
say. Since was not
prepared
case we are not
possibility.
explore
court to
proper
is
case for this
not the
which, if
defendants
given
must
statute
Like treatment
be
analyzed first. See
violated,
have been
had been
should
believed it
(695
Div.,
Academy
pursuant to a lawful enter . . and conduct a suspects’ persons presence.” search of the immediate reasonable 443) (1983); Dennis see house, lawfully OCGA 17-5-1. “Once the officers were § pur- to make a search the entire for the limited authorized house it, i.e., pose presence of securing discovering the of all possibility eliminating the of harm to officers and destruction Lentile v. Ga. App. of evidence.” “ (1975). ‘A officer free use and what he sees in plain seize ” if sight place he is at a where he is entitled to be. Brewer [Cits.]’ *4 State, (199 109) (1973). App. 129 Ga. 119 SE2d case, these to the we
Applying principles conclude Starrett, having Detective Stockton to the bedroom door go observed to obtain to marijuana which he sold Detective Starrett and for arrested, go which to right he had the to the bedroom to search bedroom, it. He that the from the marijuana knew been obtained and he had heard voices other than in the The Stockton’s bedroom. record bag powder lay shows that seized a white containing
2 Kennedy, (666 1316) (1983). See also State v. Or. 260 P2d 295
595 Brewer, supra, top principle of the bed. Under set out in this plain properly evidence in view is was thus seized and therefore ad- In finding missible. Detective Starrett had no to be bag inadmissible, bedroom and that the on the bed was thus the trial court erred. headboard, regard
With to the search of the pocketbook and both were in the immediate control the defendant of the bed bed, pocketbook at the time their on the arrest. The beside lay, same side which the female at the of her time arrest was grasp. drugs her The in the both. headboard were reachable Applying reasoning of McDowell v. Ga. 643 App. 172 (324 211) (1984), arrests, SE2d this ais valid search incident to valid under the Fourth McDowell Amendment. involved an automobile “ was, search: ‘The decisive factor is whether the arrestee at time automobile, of his occupant’ a ‘recent not whether the automobile its contents were in his immediate control at time (293 of the search.’ v. Hopkins, State SE2d 529) (1982).” Id. may encompass This is because the search arrestee, the area within partly pre the immediate control of the to vent the concealment or Chimel destruction of evidence. v. Califor nia, (89 685) (1969). S.U. 23 LE2d See discussion Hopkins, in State v. A “prompt search is Hatten area” authorized. See 893) (1984). Although McDowell and searches, Hopkins not, are automobile Hatten but rather involves the search of a curtilage following residence and arrest for homicide. seizing view, addition to in plain what was which covers the bag case, containing this Court in Georgia Hatten found no federal police constitutional violation when the searched the a pistol outside and found and ammunition in side a concrete block which had been arm’s reach Hat- “[w]ithin ten” earlier when he was arrested. same situation obtains here with the proximity contraband concealed within close to defendants. Hatten,
In addition to to incident arrest basis it appears the court also Al- considered the circumstances. term, though did it not use this it described the scenario con- circumstances, cluded: require “Under these officers their search logic cease obtain a warrant defies and com- [sic] mon . . . sense Given the the surrounding nature circumstances, we find no error denial of motion Hatten’s suppress.” Id. at 25. if comparable compel- circumstances here are not even more A
ling. of just stranger substantial sale been made to a (the officer) by who visitor the residence admitted the into the stranger night though mobile home the middle of the *5 sale after had the “dickered negotiated routine. The seller were from persons marijuana the the for a while” and obtained price about sup down the hall who twenty-five feet in a not more than bedroom The his even inside. going without upon simple request it to him plied with in bedroom. ease of the the people the voices officer heard likely there made it that purchased drug the police the officer only not and this was the that was more of the contraband persons who were the to arrest the bag. police the went last When marijuana, bag powder a white was purchased of with source the pur had them, the belief that what been confirming on the bed with substances supply indeed the total of controlled chased was not a.m., at the time place. It was about 3:00 were unmarried family did a but three police arrived not constitute many might come. not know how others people, so the did the whole resid general exploratory a police did not conduct emanated the only of immediate area from which had ence3 but sale. drug impor is “an underlying
The nature offense gravity any determining exigency tant factor to be considered when whether prohibition . . .” in the Amendment’s exists context the Fourth Wisconsin, — searches and Welsh U. S.- unreasonable seizures. 4581, 4585, 15, 1984). May LW focused on the Although case validity of a warrantless rather than on the authorization for search, approach” it would seem that this “common sense here apply would as well. charges after a sale had drug
Defendants had been arrested colleague suspected been their had been made addition, In en- presence; seen their these were not minor offenses. warrant, try into house as col- required had the defendants’ league invited officer into the trailer for the of trans- said, drugs. entry acting illegal sale of And we have into permitted. bedroom was here,
Considering require all of the circumstances we would not put be up tight be sealed and watchmen might buy one coming drugs doors and windows so no who be contraband, way policeman get same did could and remove a.m. magistrate be found at 3:00 to issue a search warrant. As under cushion of the stashed where one arrested, sitting defendants was after while it not have been arrested, vicinity Camp the immediate of Poole or when persons in having custody spot, moved the it was the location Moreover, premises, seller so Stockton’s arrest. the same (1975). disapproved in Lentile v. 3 As it would seem to come within the rationale Hatten. addi- tion, there was a reasonable and rational articulated basis minimally alert lifting intrusive gen- cushion. There was no eral premises, the entire or upsetting personal belongings or emptying of drawers or destruction of A order. fair amount of ma- rijuana purchased bags found, suspected powder and several *6 discovered, prior experience taught the officer that kept users of often it under the sofa inor the cushions. picture Based all of the given, we have been we conclude that “special protection offered the in by individual his home Fourth Amendment”4 was not violated.
Judgment Banke, J., Deen, J., reversed. C. McMurray, J., P. P. J., J., Birdsong, Carley, P. Sognier, Pope, Benham, concur. JJ., dissent. dissenting. Judge,
Pope,
I
respectfully
must
dissent in
I
part.
agree only
majority
with the
opinion
that
in plain
view on the headboard should
be admitted
I
into evidence.
agree
cannot
that
the remainder of the
contraband in question
lawfully
majority
pri-
seized. The
relies
marily upon
State,
(324
v.
two cases: McDowell
643
211) (1984),
(315
893)
SE2d
and Hatten v.
(1984). Neither of these cases applies to the facts of the instant case.
McDowell was
in
an automobile search case. The rule McDowell de-
(293
529)
rived
Hopkins,
from State v.
(1982),
141
163
which,
turn,
(101
in
upon
Belton,
relied
New York v.
automobile rule set out applied Court Georgia Hatten dence. LE2d U. S. 385 Arizona, Mincey v. “ the scene of homicide ‘(W)hen come (1978): police there to see if are of the area prompt make a . . . And premises. on the if a killer is still victims or other of their during the course plain is view any evidence that may seize State, supra at 25. Hatten emergency activities.’ legitimate [Cit.]” exigencies certain Mincey, recognizes that Thus, Hatten, relying on homicide, neces- the latitude gives with dealing when exist is, possible to for other exigencies; deal those sary to with permitted seize killers, doing, police so are and while victims However, purpose the central view. plain discovered evidence evidence, discovery of rather to but search is not permissible Similarly, the cen- present. safety of officers and citizens ensure passenger compartment allowing the search of tral evidence, to ensure but rather discovery is not the an automobile of evi- possible destruction safety prevent of those infinitely get into remove some- An easier dence. automobile than is a house. thing *7 recognized exigencies law has exist
My point long searches, and prompt make warrantless which dictate that and thus offensive under such searches are not unreasonable However, always been such searches have Fourth Amendment. lim- opinion Exigency The would exist majority ited. leaves no limits. occurred, thorough and a search whenever valid warrantless arrest a exceptions recognized This far premises of the allowed. exceeds permit searches. which warrantless , authorized, .
“In circumstances . . officers are . . lawful . and conduct a pursuant to a enter presence.” suspects’ persons of the and immediate reasonable search 443) (1983). 715, Dennis v. 166 Ga. “Once house, make lawfully the officers were authorized to a it, i.e., securing the limited of search the entire house for discovering possibil- presence occupants eliminating of all Lentile ity harm and the of evidence.” v. to the officers destruction they Wynn Both Detective Starrett and Officer testified searching weapons they were not for At when searched bedroom. purse, Wynn time Officer testified that Poole and he searched Likewise, Camp already living been moved to the room. when the headboard, cache of was discovered inside the closed suspects already safely living At secured room. Wynn point Detective Starrett and Officer “were authorized open up or closed containers otherwise discover contraband view, plain not in this is true conducting whether were occupants warrantless search incident to the lawful arrest of the the exigencies ‘plain or under of the situation . . . The view’ doctrine may general not be used to a exploratory extend search from one ob- ject something incriminating to another until at last emerges. implicit limits on the doctrine are the statement its rationale. view alone is never enough to plain justify first those is that warrantless simply corollary seizure of evidence. This is of the . principle familiar . . that no amount probable justify cause can . or seizure absent . . The ‘exigent circumstances’ second limitation discovery plain is that the must evidence view be inadvertent. After it was all of the determined that . . custody, the house . were in exigency jus- no existed which would tify general entire point, house. At that the officers could, should, procured have a search warrant to discover whatever contraband prem- or other evidence have been on the ises, (Citations Lentile plain omitted.) not in punctuation view.” State, supra my opinion, 614-15. In trial err in court did not excluding the contraband discovered the closed headboard under cushion.
I am authorized that Judge Sognier to state Benham Judge join this dissent. July Decided
Rehearing July denied Winn, C. Frank Attorney, District S. Assis- Thompson, Richard tant District Attorney, appellant. for C. Clayton,
Wallace appellees.
69865. CARVER THE STATE.
Banke, Chief Judge. appellant marijuana, indicted for two counts of sale of one allegedly January occurring January the other on appellant’s Based lengthy pre-indict- contention that a delay hampered ment ability develop his an alibi left defense and him with no defense than identity, other that of mistaken the trial identity court ordered the state disclose in- a confidential formant who had allegedly January witnessed the 21st incident. witness, identity Rather than disclose the the state dismissed January proceeded this count to trial on the indictment