State v. Handspike , 240 Ga. 176 ( 1977 )

Undercofler, Presiding Justice.

The question in this certiorari appeal is whether the Court of Appeals erred as a matter of law in determining that the search and seizure of less than an ounce of marijuana on the defendant’s person was not a lawful search incident to an arrest. Under the facts recited in the Court of Appeals’ opinion, the policeman had probable cause to arrest Handspike when he recognized the two girls in the car as juveniles, saw the wine and cups, and was told by the defendant that he had given the girls some wine. Code Ann. § 58-612. We hold that the officer had observed a crime being committed in his presence and had probable cause to arrest the defendant. He conducted his search incident to that arrest, and the marijuana was properly seized. Code Ann. § 27-207, Mitchell v. State, 136 Ga. App. 658 (222 SE2d 160) (1975). We therefore reverse the Court of Appeals opinion in State v. Handspike, 142 Ga. App. 104 (235 SE2d 568) (1977).

Judgment reversed.

All the Justices concur, except Hall and Hill, JJ., who dissent. Marshall, J., disqualified. Hinson McAuliffe, Solicitor, Charles Hadaway, Assistant Solicitor, for appellant. Isaacs, Comolli & Polonsky, John M. Comolli, for appellee.