*1 Carey, Carey, appellants. & M. Sartain Jack for Armstrong Emory Robinson, Harben, Millikan, & F. Troy appellee. Millikan, Robinson, R. THE STATE HANDSPIKE. 7, 1977 Decided April Submitted March April
Rehearing denied Hadaway, Solicitor, Charles McAuliffe, Hinson appellant. Solicitor, for Assistant Polonsky, Isaacs, Isaacs, K. John Comolli & Thomas appellee. Comolli, M. *2 Presiding Judge.
Deen, concededly theories, con- The state offers two tradictory, uphold validity this search and to of one, the that the seizure: that the search and seizure is valid under "stop rationale; two, and Ohio frisk” appellee was under lawful arrest and the search and was a valid incident seizure thereof. justify approach
1. The
of
facts
this case
the officer’s
dangerously parked
night
one-way
car,
at
a
street
of a
on
policeman’s
Parking”
signs.
marked with "No
testimony
that
in
was
his initial interest
the vehicle was
activity
might
its location rather than the
which
have
taking place
been
circumstances,
inside. Under this set of
coupled
presence
glasses in
car,
with the
of
wine
appellee’s breath,
the smell of alcohol on the
and the
presence
suspected juveniles,
request
of
the officer’s
for
presentation
of a driver’s license for identification was
286).
proper.
Anderson v.
57
prevention
In the interest
of effective crime
appropriate
police
detection"...a
officer
in
cir-
appropriate
approach
cumstances and
an
manner
a
person
purposes
investigating possibly
for
criminal
though
behavior even
there is no
cause to make
Terry Ohio,
an
arrest.”
392 U.
20
S.
investigation
LE2d
And in the course of this
discovery
appellee’s
of the revolver on the floor of the
car
amply justified "pat
weapons though
a
down” for other
p.
[T]here
Id.,
for a "full” search.
27. And in the course of down” ofthe this bulge,” discovery of the "small little which officer thought might weapon, have been testified he some sort justified "bulge” of the the search itself and the seizure appellee’s clothing. "The from the concealment of the sole justification protection police is the of the of the search... nearby, and it therefore officer and others must scope reasonably designed confined in to an intrusion guns, clubs, knives, or other hidden instruments discover p. police Id., U. for the officer.” S. assault bulge” opaque turned be an The "small little out to rolled-up envelope. manila The officer bulge gun knew when the that it not a was revealed was or envelope opened only knife. The officer it and took the quantity then a less than discovered an point ounce. At the "bulge” that the officer discovered envelope weapon, opaque an a and not authority envelope his Terry to further search inside the under being "At
ended. the 'frisk’ a ceased weapons and search for 'Unlike a full became search evidence. *3 solely
search, a frisk is conducted for the purpose insuring safety the of the or of officer others nearby, procure subsequent to evidence for use at a (192 App. State, v. trial.’ Jones Ga. 844 126 SE2d 171).” (211 App. State, v. Brown 133 Ga. SE2d 438). legal [A] only 'frisk,’ ". . . if all, at such is exceptional only very and circumstances for the limited purpose assuring suspect the officer that the whom he going upon weapon. must is not accost turn him a to with .. thorough suspect up A search of the such to turn a as person small amount on her can never he justified by referring it a to as 'frisk.' Holtzendorf v. 879).” App. III B., 125 Ga. SE2d L. B. State App. Ga., 129 Ga. the When officer bulge weapon authority here discovered the was not a to search further ended, and his the intrusion into "small envelope, little” because of his in the "interest” contents safety, "general rather than a concern his own awas Tor exploratory justified Terry ruling. search” not under the urges 2. The state the seizure that search and can upheld § as incident Code to a "lawful arrest.” Ann. 27-301. at "under arrest” was not appellee The disagree.
We that the officer shows search. The evidence the time of the of the because initially vehicle appellee’s the approached traffic, suspicious became other and it to presented hazard did not in the car. He cups he discovered wine when did not see anyone, to furnish wine see the appellee the only alcohol on it, and smelled drinking anyone the The policeman breath. appellee’s wine and "other some girls” he had the given said appellee to be appeared girls” the officer the "other to high were school they that he knew juveniles he did not determine (though apparently students until under 18 fact girls” the "other were after marijuana.) the seizure of the of the appellee search that he was appellee never informed the officer he did do was ask crime. What any under arrest his driver’s present of the car and step out appellee ". . . license; under the circumstances. proper this was may cause for arrest short of [Circumstances limited motorist for of a or stopping pedestrian justify driver’s identification ... a questioning request 57, 60, supra. Anderson license...” this was that at testimony The officer’s own identification; that his testify he did not only wanted It after he saw was to seize the purpose appellee. to a to submit appellee that the officer forced gun also testified that he weapons; yet "frisk” for the officer did but rather as any not view the as a violation of law gun a safety during questioning threat to his own appellee. the classic presents
This factual situation suspicious confrontation between an officer questioning and a be armed. Under these person suspect who weapons, be "frisked” for suspect may circumstances *4 here for evidence. The evidence he not "searched” the was clearly supports appellee the conclusion frisked”; it does not the conclusion "stopped support It "arrested and searched.” appellee was the limits of the officer exceeded during "frisk” an from the Fourth Amendment and seized delay the arrest of a envelope. police may ". . . [T]he or use a rationale as a suspect to coerce subterfuge into suspect himself. . incriminating Shy Ga. Bell, J., Judgment Quillian, J., C. P. affirmed. Shulman, JJ., McMurray, Webb, Smith and concur. Banke, JJ., Marshall and dissent. Judge, dissenting.
Marshall, I must respectfully register my dissent to the conclusion of the majority opinion it wherein holds that the arrest in this case was cause, without rendering product of the search and seizure flowing therefrom illegal.
Appellee concedes that when he was ordered to remove himself from the automobile, was, law, contemplation of under arrest. The trial court also reached this same conclusion. Neither does appellee contest the right of the police officer to approach the automobile to investigate reason for the car being parked in such a dangerous place. I facts,
As view the the evidence disclosed that arresting officer saw in plain an opened, view partially consumed bottle of wine with several cups also plainly visible. The officer smelled alcohol on the breath of the appellee. He recognized the two female occupants of appellee’s car as being minors presently attending high school. Finally, by appellee’s admission, appellee had furnished these minors some of the alcoholic beverage.. Such conduct on its face presents reasonable prima facie evidence that a felony § violation of Code 58-612 had been committed and that such felonious conduct was likely to continue. Though the officer did not see appellee actually furnish the minors alcoholic beverages, direct, probative and reasonable evidence irresistibly points to the conclusion aby reasonable man that a felony had been or was being committed in his presence. See Young 238 Ga. 548.
It is well settled that an officer at the time
aof
lawful
custodial
may,
warrant,
arrest
without a
make a full
(United
search of the person of the accused
States v.
Robinson, 414 U.
427)),
S.
38 LE2d
limited area within the control of the person arrested
*5
(Chimel
(89
California,
2034,
v.
I am authorized to state that Webb join Banke in this dissent. BENNETT v. THE STATE. Judge.
Webb, appeal question in from a conviction this aggravated battery aggravated is whether assault and crimes there was sufficient evidence that were Dougherty County. venue, committed in "Evidence conflicting though slight, is sufficient in the absence of 402) evidence.” Loftin (1973). The victim testified she was knocked woody being she unconscious while beaten in a area where by had been taken hospital defendant and that she was when she awakened. Two witnesses County semi-upright Dougherty she was when found trying rise, that she had been and there is no evidence by discovery moved between the time of and her attack description witness. From the victim’s condition the jury was authorized to find that had not been able to she move conclude this herself from the of attack. We particularly quite sufficient, in the absence evidence was any conflicting evidence. Judgment Marshall, J., Deen, J., P. affirmed. concur.