63447. THE STATE v. HOPKINS.
Court of Appeals of Georgia
JUNE 24, 1982
JULY 16, 1982
163 Ga. App. 141
Adopting that reasoning, which we are compelled to do, there is sufficient written record (the hearing transcript) for this court to determine on what grounds the trial court revoked probation.
2. In a proceeding of this type, the trial judge acts as the trier of fact with a very wide discretion which will not be controlled in the absence of a manifest abuse of such discretion. Harper v. State, 146 Ga. App. 337, 338 (246 SE2d 391); Hogan v. State, 158 Ga. App. 495 (1) (280 SE2d 891).
3. State v. Brinson, 248 Ga. 380 (4), supra, reiterated the rule ““[A] court may take judicial notice of its own records in the immediate case or proceedings before it.“” The argument that the trial court considered matters outside the evidence and that the evidence was insufficient is without merit.
Judgments affirmed. Shulman, P. J., and Carley, J., concur.
DECIDED JUNE 24, 1982 —
REHEARING DENIED JULY 16, 1982.
Charles W. Smith, Jr., for appellant.
Jeff C. Wayne, District Attorney, Patrick F. McMahon, Assistant District Attorney, for appellee.
CARLEY, Judge.
While patrolling the downtown streets of Macon at 2:40 a.m., two officers observed appellee and a companion seated in a parked car. One of the officers had in his possession an outstanding warrant for appellee‘s arrest for probation violation. Recognizing appellee, the officers parked their vehicle and approached the car occupied by appellee. The officers ordered appellee to get out of the vehicle and, when he complied, appellee was handcuffed and placed in the patrol car. After ascertaining that neither appellee nor his companion
1. “[W]e need not decide whether this was a valid [inventory] search... for,...’ (t)here are... alternative grounds arguably justifying the search of the car in this case.” Parks v. State, 150 Ga. App. 446 (1) (258 SE2d 66) (1979).
2. In People v. Belton, 407 NE2d 420, 421 (N.Y. 1980), the Court of Appeals of New York held: “A warrantless search of the zippered pockets of an unaccessible jacket may not be upheld as a search incident to a lawful аrrest where there is no longer any danger that the arrestee or a confederate might gain access to the article.” (Emphasis supplied.) Two judges dissented pointing out that the “search was conducted by a lone peace officer who was in the process of arresting four unknown individuals whom he had stopped in a speeding car owned by none of them and apparently containing an uncertain quantity of a controlled substance. The suspects were standing by the side of the car as the officer gave it a quick check to confirm his suspicions before attempting to transport them to police headquarters...” Belton, 407 NE2d at 424, supra.
The Supreme Court of the United States granted certiorari and stated “the question at issue” to be: “When the occupant of an automobile is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding?” (Emphasis supplied.) New York v. Belton, 453 U.S. 454, 455 (101 SC 2860, 69 LE2d 768) (1981). In resolving the “question at issue,” the Supreme Court noted that “no straightforward rule has emerged frоm the litigated cases respecting the question... of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants. The difficulty courts have had is reflected in the conflicting views of the New York judges who dealt with the problem in the present case, and is confirmed by a look at even a smаll sample drawn from the narrow class of cases in which courts have decided whether, in the course of a search incident to the lawful custodial arrest of the occupants of an automobile, police
It is apparent that the holding of the Supreme Court in New York v. Belton is that a search of the passenger compartment of an automobile recently occupied by an arrestee is a valid search incident to an arrest, even if the arresteе had no “immediate control” of the area at the time the search was conducted. The decisive factor is whether the arrestee was, at the time of his arrest, a “recent occupant” of the automobile, not whether the automobile and its contents were in his immediate control at the time of the search. The Supreme Court did not reverse the factual finding of the lower court that Belton‘s jacket was “unaccessible” and therefore was not within his “immediate control” at the time it was searched. Indeed, the Supreme Court noted that the inaccessibility of Belton‘s jacket was one of the “circumstances” which prompted the grant of certiorari. See New York v. Belton, 453 U. S. at 454, supra. This was recognized by Mr. Justice Brennan, who stated in his dissent: “As the faсts of this case make clear, the Court today substantially expands the permissible scope of searches incident to arrest by permitting police officers to search areas and containers the arrestee could not possibly reach at the time of arrest. These facts demonstrate that at the time Belton and his three companions were рlaced under custodial arrest — which was after they had been removed from the car, patted down, and separated — none of them could have reached the jackets that had been left on the back seat of the car.” (Emphasis supplied in part.) New York v. Belton, 453 U. S. at 466, supra.
Accordingly, it cannot be urged that the Supreme Court in Belton authorized a search of the passenger compartment of a vehicle which is no longer physically occupied by an arrestee only in a situation where the arrestee still retains possible access to the car and
In the instant case, as in Belton v. New York, appellant “was the subject of a lawful custodial arrest... The search of [appellant‘s vehicle] follоwed immediately upon that arrest. The [gun] was located inside the passenger compartment of the car in which [appellant] had been a passenger just before he was arrested. The [gun] was thus within the area which we have concluded was ‘within the arrestee‘s immediate control’ within the meaning of the Chimel case. The search of the [automobile], thereforе, was a search incident to a lawful custodial arrest, and it did not violate the Fourth and Fourteenth Amendments. Accordingly, the judgment is reversed.” New York v. Belton, 453 U. S. at 462, supra. See also Conrad v. State, 160 Ga. App. 909 (288 SE2d 618) (1982).
Judgment reversed. Quillian, C. J., Deen, P. J., McMurray, P. J., Banke, Birdsong and Pope, JJ., concur. Sognier, J., concurs in the judgment only. Shulman, P. J., dissents.
DECIDED JULY 16, 1982.
Russell M. Boston, Rick W. Griffin, for appellee.
SHULMAN, Presiding Judge, dissenting.
Because I cannot agree with the majority‘s interpretation of the U. S. Supreme Court‘s decision in New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768), I must respectfully dissent from both divisions of the majority opinion.
1. In its Belton opinion, the U. S. Supreme Court recognized the rationale behind the “search incident to a lawful arrest” exception to the warrant requirement of the Fourth Amendment: “... a lawful custodial arrest creates a situation which justifies the contempоraneous search without a warrant of the person arrested and of the immediately surrounding area. Such searches have long been considered valid because of the need ‘to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape’ and the need to prevent the concealment оr destruction of evidence. [Chimel v. California, 395 U. S. 752,] 763 (23 LE2d 685, 89 S. Ct. 2034).” New York v. Belton, supra, 69 LE2d 768, 773. The court went on to note that, while the above rule was one which could be stated clearly, its application to individual cases had been difficult since “courts have found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an autоmobile and the arrestee is its recent occupant.” Id., p. 774. In an attempt to establish “the workable rule” required in a case involving a search incident to a lawful arrest, but “in no way alter[ing] the fundamental principles established in the Chimel case regarding the basis scope of searches incident to lawful custodial arrests” (Id., p. 775, n. 3), the court concluded that “when a рoliceman 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 automobile.” Id., p. 775.
By holding that “whether the automobile and its contents were in [the arrestee‘s] immediate control at the time of the search” is not the “decisive factor” involved in a valid search incident to a lawful arrest, the majority has vitiated the vital portions of the law governing such searches as enunciated in Chimel v. California and reaffirmed in New York v. Belton. As stated earlier, the rationale which permits a search incident to an arrest to occur without a warrant is the need to remove any weapons or evidence the arrestee might attеmpt to use or destroy. When appellee Hopkins was handcuffed and placed in the backseat of the patrol car, no valid
The majority makes much of the lower court‘s factual determination in New York v. Belton that Belton‘s jacket, located on the automobile‘s backseat, was “inaccessible” to the four suspects involved in that case. A crucial point of the Belton case is that those suspects were “standing by the side of the car” (emphasis supplied) while the officer quickly confirmed his suspicions that marijuana was present in the car. In standing next to the car, one or all of the suspects had a portion of the passenger compаrtment within his immediate control. In its Belton decision, the U. S. Supreme Court attempted to put an end to case by case factual determinations as to just how much of the passenger compartment an arrested “recent occupant” of the car could reach — it forsook the method by which the reach of each suspect is measured to determine thе area of his immediate control for a more concise rule: if a suspect can reach into the passenger compartment to gain possible access to a weapon or evidence, he is deemed able to reach into the entire passenger compartment and, “if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.” Id., p. 775. I read New York v. Belton as authorizing, as a search incident to an arrest, a search of the entire passenger compartment of an automobile whose occupant has just been arrested while that occupant is in a position to have possible access to the vehicle to obtain a weapon or dеstroy evidence, i.e., when all or a portion of the passenger compartment is within the arrestee‘s area of immediate control. In the case at bar, the U. S. Supreme Court‘s holding in New York v. Belton does not authorize a search of the automobile in which appellee was sitting at the time of his arrest because, at the time of the search, appellee was hаndcuffed and locked inside the patrol car and his companion had already departed. Thus, the searched vehicle did not encompass “the area into which an arrestee might reach in order to grab a weapon or evidentiary items.” Chimel v. California, supra, p. 763.
2. Since I cannot condone the search conducted as one having occurred incident to appеllee‘s lawful arrest, I must address the state‘s contention that the search qualified as a lawful inventory search. An inventory search of a vehicle impounded by a police department is constitutionally permissible. South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000). However, if the
The automobile in question was legally parked when the officers approached. From both a registration check and information received from appellee and his companion, the officers knew that Mamie Tatum, and not either of the occupants of the car, owned the vehicle. One of the arresting officers testified that appellee expressed a desire to call the owner and was told he could make а telephone call from the jail. No effort to contact the owner was made by the police.
“Where the officer knows the identity of the owner in question, he should make at least a reasonable effort to determine the owner‘s wishes regarding disposition of the vehicle and that only after such a reasonable effort is made would the necessity of impoundment attach.” State v. Darabaris, 159 Ga. App. 121, 123 (282 SE2d 744). See also Mulling v. State, 156 Ga. App. 404 (274 SE2d 770); State v. Thomason, 153 Ga. App. 345 (3) (265 SE2d 312); State v. Ludvicek, supra. The inability of the car to start on its own, the safety of the car‘s present location, and the belief that a police tow truck would arrive on the scene before the owner would do not excuse the officers’ failure even to attempt to contact the owner of the vehicle to ascertain her wishes regarding her car. “While we do nоt wish to impose unnecessary burdens upon an already overburdened police force, we do not believe it would have been unreasonable for the arresting officer [s] to seek instructions from Ms. [Tatum] inasmuch as [they] had been told she was the owner [and they] had verified the accuracy of that information... Perhaps a different result would be proper if Ms. [Tatum] cоuld not have been located following at least a reasonable effort. [Cit.] However, under the circumstances presented, [I] concur with the judgment of the trial court that impoundment was unnecessary and therefore the resultant inventory was also improper.” State v. Ludvicek, supra, p. 786.
For the reasons stated, I would affirm the trial court‘s grant of appellee‘s motion to suppress and I must respectfully dissent from the majority‘s ruling to the contrary.