Capellan v. State

729 S.E.2d 602, 316 Ga. App. 467, 2012 Fulton County D. Rep. 2285, 2012 WL 2434748, 2012 Ga. App. LEXIS 588
CourtCourt of Appeals of Georgia
DecidedJune 28, 2012
DocketA12A0106
StatusPublished
Cited by8 cases

This text of 729 S.E.2d 602 (Capellan v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Capellan v. State, 729 S.E.2d 602, 316 Ga. App. 467, 2012 Fulton County D. Rep. 2285, 2012 WL 2434748, 2012 Ga. App. LEXIS 588 (Ga. Ct. App. 2012).

Opinion

Boggs, Judge.

Following a bench trial, Omar Capellán was convicted of trafficking in marijuana, possession of marijuana with intent to distribute, and giving a false name and date of birth. The trial court denied Capellan’s motion for new trial, and he appeals, seeking review of the trial court’s denial of his motion to suppress. For the following reasons, we reverse.

“On appeal, we accept the trial court’s findings on disputed facts and credibility issues unless clearly erroneous. However, where controlling facts are not in dispute, such as those facts discernible from a videotape, our review is de novo.” (Citations and punctuation omitted.) Boyd v. State, 315 Ga. App. 256 (1) (726 SE2d 746) (2012).

The facts here are undisputed. The record reveals that an officer patrolling on Interstate 85 noticed a flatbed wrecker carrying a van run onto the shoulder of the road “across the fog line approximately three times.” The officer also noticed that the wrecker’s New Jersey license plate was illegible because of “grease or dirt or some kind of black smudges all over the tag.”

The officer stopped the wrecker and asked the driver, Capellán, for his driver’s license. When Capellán stated that he did not have his driver’s license, the officer asked him for his name and date of birth. Capellán told the officer “that he was 26 years old and born in 1974,” and that his name was “Sammy Ba[d]away.” The officer testified that [468]*468he asked Capellán “a couple of more times” about his date of birth and age, because the “math didn’t add up,” and that Capellán “kept sticking to that he was 26 years old and born in 1974.” When the officer called police dispatch to inquire about Capellan’s license, the name and date of birth given by Capellán came back as “not on file.” Capellán then told a second officer on the scene that his driver’s license was behind the seat of his wrecker and that it might be suspended. Capellán was then arrested for giving a false name and date of birth.

When the first officer went into the cabin of the wrecker to look for Capellan’s license, he smelled “a fairly strong odor of raw or green marijuana.” This officer testified that he was trained in marijuana recognition. The officer did not “locate any marijuana,” but did locate a valid Florida driver’s license and a suspended New Jersey driver’s license, showing Capellan’s real name and date of birth.1

The officer testified and the video recording reveals that after Capellán was secured in the back of the police vehicle, he began “inventorying” the wrecker and the van. The officer retrieved the keyless entry for the van from the key ring in the ignition of the wrecker, unlocked it, and opened the cargo area of the van. In the back of the van, the officer found two large duffel bags containing clear plastic bags of “a green leafy substance [the officer] suspected to be marijuana.” Apolice department evidence technician who qualified at the bench trial as an expert in the analysis of narcotics determined that the duffel bags found in the van contained approximately 29 pounds of marijuana. Following the hearing on the motion to suppress, the trial court denied Capellan’s motion concluding that the case “presents a strong case for impoundment and inevitable discovery.”

On appeal, Capellán argues that the trial court erred in denying his motion to suppress because the State failed to show that the searches of the locked van and the duffel bags were lawful. Specifically, he argues that there was no evidence of a police department policy with respect to the opening of closed containers — here the locked van and duffel bags — encountered during the inventory search and no other exceptions to the warrant requirement exist. The State, on the other hand, asserts that the police conduct in having a lawful basis for impounding the wrecker (and the van it was carrying) was reasonable and that the marijuana in the van would have been [469]*469inevitably discovered during a subsequent inventory search of the van following impoundment. Thus, impoundment, inventory, and inevitable discovery are inextricably tied here.

The first step in our analysis requires us to determine whether the “impoundment was reasonably necessary under the circumstances.” Grizzle v. State, 310 Ga. App. 577, 579-580 (1) (713 SE2d 701) (2011). “Cases supporting the State’s right to impound a vehicle incident to the arrest of a person in control of it are founded on a doctrine of necessity.” (Citation, punctuation and footnote omitted.) Dover v. State, 307 Ga. App. 126, 128 (1) (a) (704 SE2d 235) (2010). The record shows that Capellán was the sole occupant of an out-of-state vehicle governed by the Department of Transportation and required a special commercial driver’s license (CDL) to drive. The wrecker was parked on.an exit ramp of an interstate highway at night. The officer acknowledged that he did not offer Capellán an opportunity to make his own arrangements to remove the wrecker from the side of the highway ramp, explaining “I knew nobody would have been able to get here for a reasonable amount of time from where he was from.” Based upon information available to the officer on the scene — that Capellan’s only valid driver’s license was issued in the state of Florida, that the van was being moved from Florida to Virginia, the New Jersey license plates on the wrecker, and the need for the holder of a CDL to drive the wrecker — the officer’s decision to impound the wrecker was entirely reasonable. See Wiley v. State, 274 Ga. App. 60, 61 (1) (616 SE2d 832) (2005) (impoundment reasonable where U-Haul truck stopped at night created potential hazard and driver had suspended license); Colzie v. State, 257 Ga. App. 691, 692 (2) (572 SE2d 43) (2002).

Having determined that impoundment of the vehicle was reasonably necessary, we must now determine whether the officer’s search of the van, following Capellan’s arrest, was a valid inventory search.2

The United States Supreme Court has held that an inventory search may be “reasonable” under the Fourth Amendment even though it is not conducted pursuant to a warrant based upon probable cause. In this respect, an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence, but instead the policy or practice governing inventory searches should be designed to [470]*470produce an inventory. Pursuant to these principles, . . . the first purpose of an inventory search is the protection of the owner’s property while it remains in police custody and the second purpose is the protection of the police against claims or disputes over lost or stolen property. And . . . this Court recognized that taking an inventory of the contents in a closed container in the trunk of a vehicle serves both of these purposes.

(Citations and punctuation omitted.) Grizzle, supra, 310 Ga. App. at 580 (2). “[Inventories conducted by the police pursuant to standard police procedures are deemed to be reasonable under the Fourth Amendment.” (Citation, punctuation and footnote omitted.) Id.; see also Colorado v. Bertine, 479 U. S. 367, 374, n. 6 (107 SC 738, 93 LE2d 739) (1987). In Clay v. State, 290 Ga. 822 (725 SE2d 260) (2012), the Supreme Court of Georgia noted “that the inventory of containers must be in accordance with established inventory procedures.” (Citation and punctuation omitted.) Id. at 830 (2) (A). Accord Florida v.

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Cite This Page — Counsel Stack

Bluebook (online)
729 S.E.2d 602, 316 Ga. App. 467, 2012 Fulton County D. Rep. 2285, 2012 WL 2434748, 2012 Ga. App. LEXIS 588, Counsel Stack Legal Research, https://law.counselstack.com/opinion/capellan-v-state-gactapp-2012.