Baker v. State , 202 Ga. App. 73 ( 1991 )

Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of possession of cocaine and of three traffic violations. She appeals from the judgments of conviction entered by the trial court on the jury’s verdicts of guilt.

1. After appellant was stopped for speeding and for running a stop sign, she produced a valid driver’s license. However, she was unable to produce proof of current liability insurance and the registration sticker on the vehicle she was driving had expired. Appellant was taken into custody for the various traffic offenses and booked. During an inventory search of her purse at the police station, a small vial containing a residue of white powder was discovered and seized. This substance tested positive for cocaine and was the basis for appellant’s subsequent indictment for possession of cocaine. Appellant filed a pre-trial motion to suppress any evidence seized as a result of the inventory search of her purse, urging that her arrest had been illegal. The denial of this motion is enumerated as error.

Appellant does not contend that the stopping of her automobile was pretextual. She contends only that, because a traffic citation could have been issued for the relatively minor traffic offenses for which she was validly stopped, the arresting officer had no authority to take her into custody and that the inventory search of her purse was, therefore, conducted pursuant to an invalid custodial arrest. However, insofar as she relies upon the general provisions of OCGA § 17-4-23 (a), appellant’s contention in this regard has previously been rejected. “ ‘OCGA § 17-4-23 (a) gives a police officer the option to issue a citation but does not restrict the power given to police in OCGA § 17-4-20 to make custodial arrests for crimes committed in their presence.’ [Cit.]” Polk v. State, 200 Ga. App. 17 (406 SE2d 548) (1991). “The language of OCGA § 17-4-23 (a) that an officer ‘may arrest’ for a traffic violation by means of a citation clearly is discretionary. For the convenience of the motoring public and the police, the Code section gives the officer the option of issuing a citation rather than going through the time-consuming ordeal of a custodial arrest. It does not mandate a citation.” Brock v. State, 196 Ga. App. 605, 606 (1) (396 SE2d 785) (1990). Compare State v. Lamb, 202 Ga. App. 69 (413 SE2d 511) (1991) (specific provisions of former OCGA § 33-34-12 (a) (3) control over the general provisions of OCGA § 17-4-20).

Appellant also relies upon OCGA § 17-6-11 (a). By its terms, however, OCGA § 17-6-11 (a) does not purport to address the issue of the initial authority of an officer to effectuate an arrest for a traffic violation. Instead, that statute addresses only the issue of post-arrest bond and recognizance for those arrestees who have been “served with the official summons issued by [the] arresting officer. . . .” Thus, OCGA § 17-6-11 (a) clearly applies only to those whom the officer has arrested by issuance of a citation and not to those whom he has subjected to a custodial arrest pursuant to OCGA § 17-4-20. After one has been subjected to a valid non-custodial arrest, he then “may deposit his driver’s license with the apprehending officer in lieu of bail, in lieu of entering into a recognizance for his appearance for trial as set in the . . . summons, or in lieu of being incarcerated by the arresting officer and held for further action by the appropriate judicial officer. . . .” OCGA § 17-6-11 (a). However, an officer is not otherwise required to make a non-custodial arrest pursuant to OCGA § 17-4-23 (a), but is authorized to make a custodial arrest pursuant to OCGA § 17-4-20. Polk v. State, supra; Brock v. State, supra. Compare State v. Lamb, supra (officer must make non-custodial arrest for violation of former OCGA § 33-34-12 (a)). Where, as in the instant case, the arresting officer does not elect to effectuate a non-custodial arrest pursuant to OCGA § 17-4-23 (a), but a valid custodial arrest pursuant to OCGA § 17-4-20, the arrestee has no right under OCGA § 17-6-11 (a) to avoid the usual resulting consequences of his custodial arrest by merely tendering his driver’s license.

Accordingly, appellant’s reliance upon OCGA § 17-6-11 (a) is clearly misplaced. That bond and recognizance statute in no way conflicts with OCGA § 17-4-20 but it merely complements OCGA § 17-4-23 (a) and any other statutory provision which relates to non-custodial arrests for traffic offenses. Since appellant was subjected to an authorized custodial arrest pursuant to OCGA § 17-4-20, however, neither OCGA § 17-4-23 (a) nor OCGA § 17-6-11 (a) has any applicability here. Compare State v. Lamb, supra. Appellant’s custodial arrest for traffic violations being lawful, the inventory search pursuant to that custodial arrest was valid and appellant’s motion to suppress was properly denied. Carl v. State, 160 Ga. App. 464 (287 SE2d 379) (1981). Compare State v. Lamb, supra.

2. Over appellant’s chain-of-custody objection, the plastic bottle in which trace quantities of cocaine were discovered was admitted into evidence. This evidentiary ruling is enumerated as error.

The evidence showed that some drops of water had been added to the bottle, in order to capture the residue for testing. In the expert opinion of the witness from the State Crime Lab, the introduction of this water would not alter the test results for the presence of cocaine. “There being, at most, bare speculation of tampering or substitution, the trial court correctly admitted the [bottle which had contained cocaine] into evidence. [Cit.]” Langham v. State, 196 Ga. App. 71, 72 (1) (395 SE2d 345) (1990).

Judgments affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Cooper, Andrews, JJ., and Judge Arnold Shulman concur. Beasley, J., dissents.