Gooden v. State , 196 Ga. App. 295 ( 1990 )

Deen, Presiding Judge.

David Gooden was accused of trafficking in cocaine, was tried at a bench trial, was convicted, and appeals, contending that the trial court erred in denying his motion to suppress. Held:

Appellant was stopped for speeding by a City of Riverdale police officer after the officer’s radar clocked him driving at 62 mph in a 45 mph zone. The officer noticed that Gooden’s driver’s license had expired a month earlier, and that his automobile had a dealer driveout tag although it was a used car. Gooden was arrested for these three offenses and placed in the back seat of the officer’s patrol car. He was advised that a wrecker would be called if he did not have anyone who could come and pick up the car. Gooden indicated that he wanted to go to a pay phone and call someone, but the officer asked him to give the number to him and he would have someone from the police station call. Gooden also indicated that it would take 35-45 minutes to have his car picked up. The defendant never gave the name or number of anyone to be called because the officer informed him that department policy required that the vehicle be picked up in 10-15 minutes or it would be impounded. Two other police officers arrived at the scene, heard the end of the discussion about someone picking up the car, and heard Gooden consent to getting a wrecker. Appellant was taken to the police station, and the car was turned over to the other officers, who moved it to a furniture store parking lot. An inventory search was conducted while they waited for the wrecker. One of the officers found a jumpsuit in the back seat which had $1,100 in a breast pocket and a .32 caliber automatic pistol in another pocket. As he was further checking the car, the officer noticed a loose radio speaker grill on the door on the passenger side, and the other officer noticed that the door on the driver’s side had a hole but no speaker. He shined his flashlight in the hole and saw a bottle of incense and a blue object stuck up into the door about two inches above the speaker hole. • He removed a vinyl bag containing what he suspected to be crack cocaine. From under the driver’s seat the officer removed a brown paper bag containing two wads of aluminum foil containing suspected crack cocaine. No other contraband was discovered in the car.

In New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981), the Supreme Court upheld a similar search of the visible parts of the vehicle and a jack contained therein as a search incident to an arrest, of the immediate area of the defendant. In State v. Escobar, 193 Ga. App. 535 (388 SE2d 534) (1989), this court held that during a search incident to arrest the removal of a misaligned piece of molding, which had been attached to the body of the vehicle by an invisible strip of velcro, did not fall within the “plain view” doctrine and exceeded the objectives of permitting such a search because it was an unauthorized intrusion, which exposed concealed portions of the vehicle or its contents. In Maddox v. State, 188 Ga. App. 883, 884 (374 SE2d 810) (1988), this court applied the Belton rule to uphold an automobile search as a lawful search incident to arrest even though the vehicle in question was no longer occupied and the defendant had been removed from the scene.

Those cases in which this court has ruled that an impoundment was unreasonable have involved situations in which a reliable passenger or companion was present at the scene of the arrest who could have driven the impounded vehicle away or otherwise taken care of arrangements for removing the vehicle. See Reed v. State, 195 Ga. App. 821 (_ SE2d_) (1990); Strobhert v. State, 165 Ga. App. 515 (301 SE2d 681) (1983); State v. Ludvicek, 147 Ga. App. 784 (250 SE2d 503) (1978). Here, no companion was present and the arresting officers testified that defendant informed them it would take 35 to 45 minutes for the person he wished to call to arrive. Moreover, evidence was presented at the suppression hearing that the vehicle bore an illegal tag. Of course, even if the person defendant wished to contact could not legally have driven the vehicle away with an improper tag, presumably that person could have arranged for towing of the vehicle to whatever location the defendant desired. However, we cannot say that the department policy requiring an arrestee’s vehicle to be removed within fifteen minutes is unreasonable as a matter of law. Even though the vehicle in this case had been moved off the road to a location which would cause no traffic hazard, a time requirement for removing the vehicle serves to protect the arrestee’s property from theft or damage and the police department from claims for liability for property loss. Consequently, we conclude the impoundment was not unreasonable in this case and, therefore, the inventory search, was not improper.

Although Belton has been applied in Georgia in cases similar to this one, it is not applicable where there is some necessity for the police to take custody of the vehicle and conduct an inventory search for the protection of the police department and the defendant. See State v. King, 191 Ga. App. 706, 707 (382 SE2d 613) (1989); Judge Beasley’s special concurrence in Maddox v. State, supra at 885. Accordingly, the rule in Escobar does not apply to an inventory search, and the trial court did not err in denying the motion to suppress.

Judgment affirmed.

Car ley, C. J., McMurray, P. J., Banke, P. J., Birdsong and Pope, JJ., concur. Sognier, Beasley and Cooper, JJ., dissent.