State v. DiazState v. Diaz
- Reporters:
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- Before:
- Banke
The state appeals the grant of a motion by the appellees, Diaz and Rodriquez, to suppress evidence seized during the warrantless search of a van in which they were riding.
After observing the van enter and leave three successive service
While waiting for radio verification of Diaz’s vehicle registration documentation, the officer began to talk with the passenger, appellee Rodriquez. At this time, the officer noticed a package of cigarette rolling papers on the dashboard of the van. This prompted him to ask Diaz, “Would you mind if I take a look inside your vehicle?” Diaz responded that he would not, and the officer then placed the two appellees in the back of the patrol car, entered the van, seized the package of rolling papers, and opened it. Inside, he found a folded dollar bill which later tested positive for cocaine residue. He then radioed for the assistance of a drug investigative team on duty in the vicinity and, while awaiting their arrival, “continued the search” of the van. During the course of this search, he opened a shaving kit which was located between the two front seats and discovered inside it two bags of green leafy substance, which proved to be marijuana.
The officer admitted that he did not request permission to “search” the van, and the record contains no indication that he explained the purpose of his investigation prior to asking Diaz for permission to “look inside” the vehicle. At the suppression hearing, Diaz testified that he had not intended to give the officer permission to “search throughout any of the items inside the van” but thought the officer only wanted to “see if there was somebody else inside the van,” which was a panel-type vehicle containing no side windows. Held:
1. The state contends that, as a mere passenger, appellee Rodriquez had no legal basis upon which to challenge the legality of the search of the vehicle and the seizure of its contents. In
Rakas v. Illinois,
439 U. S. 128 (99 SC 421, 58 LE2d 387) (1978), the Supreme Court held that passengers occupying an automobile could not invoke the protections of the Fourth Amendment with respect to a search of the vehicle where they “asserted neither a property nor a possessory interest in the automobile, nor an interest in the property seized.” Id. 439 U. S. at 148. Accord
McGhee v. State,
253 Ga. 278, 279 (319 SE2d 836) (1984);
Mecale v. State,
186 Ga. App. 276 (367 SE2d 52) (1988). In the présent case, however, the evidence revealed that appellee Rodriquez had paid appellee Diaz $200 to transport him from Tampa to New York in the van and then back to Tampa with his (Rodriquez’s) family and personal belongings. While Rodriquez de
2. The state contends that the trial court erred in concluding that Diaz had not consented to a full-scale search of the interior of the vehicle and its contents. We disagree. Where a motion to suppress is filed, the burden is, of course, on the state to prove the legality of the search and seizure. See generally
State v. Slaughter, 252
Ga. 435, 436 (315 SE2d 865) (1984);
Phillips v. State,
167 Ga. App. 260, 261 (305 SE2d 918) (1983);
Judgment affirmed.
Sognier and Pope, JJ., concur.