Oswell v. State , 181 Ga. App. 35 ( 1986 )

Deen, Presiding Judge.

The appellant, George Oswell, was convicted for possessing marijuana in violation of the Georgia Controlled Substances Act. On appeal, he contends that the trial court erred in not suppressing the evidence seized during a search of his automobile.

On September 11, 1985, Oswell was observed by City of Atlanta police officer J. A. Veerkamp driving down Howell Mill Road. Having recently stopped Oswell for another reason, Veerkamp knew that Os-well’s driver’s license was suspended, and he proceeded to stop Os-well’s vehicle and arrest him for driving with a suspended license and without insurance. Although Oswell had pulled into the parking lot of a fast food restaurant where he was known, and where the owner assented to his leaving his car there, Officer Veerkamp called for a wrecker to impound the vehicle. After he had placed Oswell in his patrol car and written out two tickets, Veerkamp searched the passenger compartment of Oswell’s vehicle and discovered a bag of marijuana between the front bucket seats. Held:

The United States Supreme Court has held that “when a policeman 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.” New York v. Belton, 453 U. S. 454, 460 (101 SC 2860, 69 LE2d 768) (1981). With regard to any federal constitutional claim, the instant case is quite clearly controlled by Belton. See State v. Hopkins, 163 Ga. App. 141 (293 SE2d 529) (1982), and Conrad v. State, 160 Ga. App. 909 (288 SE2d 618) (1982). Oswell’s arrest certainly was lawful, and the fact that the arresting officer took the time to write out two tickets before searching the vehicle did not render the search noncontemporaneous to the arrest.

Oswell’s reliance upon Strobhert v. State, 165 Ga. App. 515 (301 SE2d 681) (1983), is misplaced. In Strobhert, the defendant was not operating or occupying the vehicle that was impounded and searched; at the time of his arrest, he merely was standing next to the car, drinking a beer in a park in violation of a county ordinance. The vehicle was unconnected to the arrest.

Oswell also contends that although his federal constitutional right against unreasonable searches and seizure may not have been violated, Art. I, Sec. I, Par. XIII of the Georgia Constitution provides greater protection for people against searches and seizures. Because consideration of this contention only involves application of an unquestioned and unambiguous state constitutional provision to a given state of facts, rather than actual construction of the constitutional provision, this court may address it. See Pollard v. State, 229 Ga. 698 (194 SE2d 107) (1972); Gulf Paving Co. v. City of Atlanta, 149 Ga. 114 (99 SE 374) (1919). The state constitutional provision relied upon directs that “[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated ...” That language is identical to the Fourth Amendment of the United States Constitution. Just as the search of Oswell’s automobile incident to his arrest was not unreasonable under the federal constitution, it was not unreasonable under the state constitution.

The dissent, in advocating transferral of this case to the Supreme Court, confuses construction with application of a perfectly plain provision of the state constitution. “To hold that the Court of Appeals must lose jurisdiction over all cases where any right or privilege asserted or denied depended for its allowance or refusal upon the construction of plain and unambiguous language in the constitution, though no question as to the construction of such constitutional provision was raised, would be practically to enable any litigant (not relying upon a construction of the constitution to support his contentions) to select the appellate forum in which he might prefer his case to be determined. If the mere insistence that a particular constitutional question was involved would be sufficient to give exclusive jurisdiction over a case to the Supreme Court, it would be easy to inject into any case a constitutional question of that kind, by contending that some perfectly plain provision of the constitution, which perhaps had not been previously construed by the Supreme Court, because susceptible of but one construction, should have some special or strained construction given to it, and thus create a constitutional question in the case.” Cox v. State, 19 Ga. App. 283, 289 (91 SE 422) (1917). This court’s properly possessive position regarding jurisdiction over cases of this nature is demonstrated by the remarkable dearth of cases transferred to the Supreme Court. Indeed, one notable treatise documents that from 1916 to 1950, this court transferred but one case to the Supreme Court on the basis that it involved constitutional construction, only to have the Supreme Court transfer it back. See Hilkey & Saye, The Constitutional Law of Ga., 321-322 (1952).

What we do in the instant case is mere application because the language in the state constitution is precise and unambiguous; the clause in question simply prohibits unreasonable searches and seizures. This case presents this court only with the chore of determining whether the search of Oswell’s car and the resultant seizure were unreasonable, and not with the task of determining what the term “unreasonable searches and seizures” means. Our reference to the application of the identical federal constitutional prohibition against unreasonable searches and seizures, where searches and seizures similar to that employed in Oswell’s case have been found reasonable, does not render our present application of the state constitutional clause an act of construction.

Judgment affirmed.

Banke, C. J., McMurray, P. J., Birdsong, P. J., and Sognier, J., concur. Carley, Pope, Benham and Beasley, JJ., dissent.