Hayes v. State , 141 Ga. App. 706 ( 1977 )

On Motion for Rehearing.

The state claims that the plain view doctrine legitimizes the seizure of the items from Hayes’ suitcase. Coolidge v. New Hampshire, 403 U. S. 443 (91 SC 2022, 29 LE2d 564). If the plain view doctrine is to apply, the first element which must be proved by the state is a valid intrusion prior to the sighting of the seized evidence. This is the element which we found lacking in the search of the appellant’s suitcase.

If the intrusion into the suitcase was valid, then it must have been predicated on either a warrant or an exception to the warrant requirement. If it is predicated on an exception, then the state carries an affirmative burden of showing that the requirements of the exception were fulfilled. The state made no such contention here, but rather argued that the warrant supplied the legal justification for the entry. We held that it did not, because the circumstances encountered by the police officers when they entered the apartment were such as to put the police officers on notice that the person whose suitcase they searched was not the occupant whom they had authority to search personally. The circumstances put them on notice, therefore, that they were searching the person of another individual rather than the premises for which they had a warrant.

There being no prior valid intrusion into the suitcase, the plain view doctrine cannot apply. Furthermore, had the intrusion into the suitcase been justified as a legitimate extension of the search of the premises, then the warrant would supply the basis for the seizure and there would be no need for reliance on the plain view doctrine.

The question of whether the discovery was inadvertent was never reached, because that question applies only when the discovery is subsequent to a valid intrusion.

Motion for rehearing denied.