Gibson v. State , 193 Ga. App. 450 ( 1989 )

Benham, Judge,

concurring specially.

Although I concur fully with the holdings in Case Nos. A89A0932 and A89A0934, and with the judgment in Case No. A89A0933, I cannot agree fully with everything said with regard to the latter case, and in particular with what I view as an unwarranted extension of the holdings in State v. Watkins, 182 Ga. App. 431 (356 SE2d 82) (1987), and State v. Hopkins, 163 Ga. App. 141 (293 SE2d 529) (1982). The majority relies on those cases for the proposition that it was permissible to impound appellant’s vehicle and inventory its contents because he was a “recent occupant” of the vehicle. It is the application of the phrase “recent occupant” to the present case which concerns me. In both the cited cases, the arrestee was taken from the car and arrested. In the present case, appellant had parked the car and entered a building before the arresting officer arrived. Under those circumstances, I could not agree that appellant’s status as a recent occupant of the vehicle warranted its search and seizure.

However, another case cited in the majority opinion, Jones v. State, 187 Ga. App. 421 (370 SE2d 784) (1988), provides a valid reason, under the factual circumstances of this case, to uphold the impoundment and inventory search of appellant’s car. The arresting officer testified that it was in the ordinary course of business in such circumstances to impound an arrestee’s vehicle and to inventory the contents for the purpose of protecting the police from liability for loss thereof. Here, as in Jones, appellant was alone and the car was parked on commercial premises in which the arrestee hád no interest. Impounding the car and inventorying its contents were legitimate, and the denial of appellant’s motion to suppress the evidence recovered in the search was proper. For that reason, I concur in the majority’s affirmance in Case No. A89A0933.

Decided November 9, 1989. Clement Gibson, pro se. Robert E. Keller, District Attorney, for appellee.