State v. Hopkins , 163 Ga. App. 141 ( 1982 )

Carley, Judge.

While patrolling the downtown streets of Macon at 2:40 a.m., two officers observed appellee and a companion seated in a parked car. One of the officers had in his possession an outstanding warrant for appellee’s arrest for probation violation. Recognizing appellee, the officers parked their vehicle and approached the car occupied by appellee. The officers ordered appellee to get out of the vehicle and, when he complied, appellee was handcuffed and placed in the patrol car. After ascertaining that neither appellee nor his companion owned the vehicle in which they were sitting, the officers allowed appellee’s companion to depart. The officers then radioed the station to contact a wrecker service to tow the car to the impoundment area. While awaiting the arrival of the wrecker, the officers conducted a search of the vehicle and discovered a .32 caliber revolver under the driver’s seat. The owner of the vehicle arrived on the scene prior to the wrecker and the vehicle was released to her. When appellee was subsequently charged with possession of a firearm by a convicted felon, he moved to suppress the revolver found by the officers. Appellee’s motion to suppress was granted and, pursuant to Code Ann. § 6-1001a (d), the state appeals.

1. “[W]e need not decide whether this was a valid [inventory] search . . . for,. . .’ (t)here are . . . alternative grounds arguably justifying the search of the car in this case.” Parks v. State, 150 Ga. App. 446 (1) (258 SE2d 66) (1979).

2. In People v. Belton, 407 NE2d 420, 421 (N.Y. 1980), the Court of Appeals of New York held: “A warrantless search of the zippered pockets of an unaccessible jacket may not be upheld as a search incident to a lawful arrest where there is no longer any danger that the arrestee or a confederate might gain access to the article.” (Emphasis supplied.) Two judges dissented pointing out that the “search was conducted by a lone peace officer who was in the process of arresting four unknown individuals whom he had stopped in a speeding car owned by none of them and apparently containing an uncertain quantity of a controlled substance. The suspects were standing by the side of the car as the officer gave it a quick check to confirm his suspicions before attempting to transport them to police headquarters . . .” Belton, 407 NE2d at 424, supra.

The Supreme Court of the United States granted certiorari and stated “the question at issue” to be: “When the occupant of an automobile is subjected to a lawful custodial arrest, does the constitutionally permissible scope of a search incident to his arrest include the passenger compartment of the automobile in which he was riding?” (Emphasis supplied.) New York v. Belton, 453 U.S. 454, 455 (101 SC 2860, 69 LE2d 768) (1981). In resolving the “question at issue,” the Supreme Court noted that “no straightforward rule has emerged from the litigated cases respecting the question ... of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants. The difficulty courts have had is reflected in the conflicting views of the New York judges who dealt with the problem in the present case, and is confirmed by a look at even a small sample drawn from the narrow class of cases in which courts have decided whether, in the course of a search incident to the lawful custodial arrest of the occupants of an automobile, police may search inside the automobile after the arrestees are no longer in it. On the one hand, decisions in [some] cases [cits.], have upheld such warrantless searches as incident to lawful arrests. On the other hand, in [some] cases [cits.], such searches, in comparable factual circumstances, have been held constitutionally invalid . . . While the Chimel case [(395 U. S. 752, (89 SC 2034, 23 LE2d 685) (1969))] established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile and the arrestee is its recent occupant... In order to establish the workable rule this category of cases requires,... we hold 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.” (Emphasis supplied.) New York v. Belton, 453 U. S. at 459, supra.

It is apparent that the holding of the Supreme Court in New York v. Belton is that a search of the passenger compartment of an automobile recently occupied by an arrestee is a valid search incident to an arrest, even if the arrestee had no “immediate control” of the area at the time the search was conducted. The decisive factor is whether the arrestee was, at the time of his arrest, a “recent occupant” of the automobile, not whether the automobile and its contents were in his immediate control at the time of the search. The Supreme Court did not reverse the factual finding of the lower court that Belton’s jacket was “unaccessible” and therefore was not within his “immediate control” at the time it was searched. Indeed, the Supreme Court noted that the inaccessibility of Belton’s jacket was one of the “circumstances” which prompted the grant of certiorari. See New York v. Belton, 453 U. S. at 454, supra. This was recognized by Mr. Justice Brennan, who stated in his dissent: “As the facts of this case make clear, the Court today substantially expands the permissible scope of searches incident to arrest by permitting police officers to search areas and containers the arrestee could not possibly reach at the time of arrest. These facts demonstrate that at the time Belton and his three companions were placed under custodial arrest — which was after they had been removed from the car, patted down, and separated — none of them could have reached the jackets that had been left on the back seat of the car.” (Emphasis supplied in part.) New York v. Belton, 453 U. S. at 466, supra.

Accordingly, it cannot be urged that the Supreme Court in Belton authorized a search of the passenger compartment of a vehicle which is no longer physically occupied by an arrestee only in a situation where the arrestee still retains possible access to the car and its contents. Indeed, as noted above, the Supreme Court apparently was of the opinion that the very result of drawing such distinctions in the “recurring factual situation” presented by “recent” occupancy was “disarray” in the “search of a vehicle incident to an arrest” cases. See New York v. Belton, 453 U. S. at 459, fn. 1, supra. It was to resolve this “disarray” that the Supreme Court sought to establish in Belton “ ‘(a) single familiar standard ... to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.’ [Cit.]” New York v. Belton, 453 U. S. at 458, supra. That “single standard” established in New York v. Belton for the “category of cases” in which the arrestee is a “recent” occupant of the car only and no longer has access to it or its contents is: The officer “may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” New York v. Belton, 453 U. S. at 460, supra. Thus the fundamental principle established in Chimel, supra, that the scope of a search incident to an arrest is limited to “the area within the immediate control of the arrestee” is in no way altered by the Belton decision. “The area within the immediate control of the arrestee” is merely defined by Belton as being “the passenger compartment of the automobile in which he was riding...” (Emphasis supplied.) New York v. Belton, supra, 69 LE2d 768, 772. See in this regard fn. 3 of the Belton opinion. This “single standard” is applicable even though, as was true in Belton, at the time of the search of such a vehicle, articles in the passenger compartment are “unaccessible” to the arrestee.

Decided July 16, 1982.

In the instant case, as in Belton v. New York, appellant “was the subject of a lawful custodial arrest . . . The search of [appellant’s vehicle] followed immediately upon that arrest. The [gun] was located inside the passenger compartment of the car in which [appellant] had been a passenger just before he was arrested. The [gun] was thus within the area which we have concluded was ‘within the arrestee’s immediate control’ within the meaning of the Chimel case. The search of the [automobile], therefore, was a search incident to a lawful custodial arrest, and it did not violate the Fourth and Fourteenth Amendments. Accordingly, the judgment is reversed.” New York v. Belton, 453 U. S. at 462, supra. See also Conrad v. State, 160 Ga. App. 909 (288 SE2d 618) (1982).

Judgment reversed.

Quillian, C. J., Deen, P. J., McMurray, P. J, Banke, Birdsong and Pope, JJ., concur. Sognier, J., concurs in the judgment only. Shulman, P. J., dissents. Willis B. Sparks III, District Attorney, George F. Peterman, Assistant District Attorney, for appellant. Russell M. Boston, Rick W. Griffin, for appellee.