State v. Howard

592 S.E.2d 88, 264 Ga. App. 691, 2003 Fulton County D. Rep. 3634, 2003 Ga. App. LEXIS 1440
CourtCourt of Appeals of Georgia
DecidedNovember 18, 2003
DocketA03A1398
StatusPublished
Cited by8 cases

This text of 592 S.E.2d 88 (State v. Howard) 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
State v. Howard, 592 S.E.2d 88, 264 Ga. App. 691, 2003 Fulton County D. Rep. 3634, 2003 Ga. App. LEXIS 1440 (Ga. Ct. App. 2003).

Opinions

Smith, Chief Judge.

This appeal involves the validity under the Fourth Amendment of the search of the car that Ralph Dorsey Howard was driving and in which his wife Sharon Howard and Ronnie Lee Williams had been passengers. The trial court granted appellees’ motions to suppress evidence, which included cocaine and a pistol found in a duffel bag on the floorboard of the car, and the State appeals. We find that impoundment of the vehicle was reasonable, and an inventory search is permitted in conjunction with impoundment. We also find that the search was incident to Howard’s lawful arrest. We therefore conclude that the trial court erred in granting the motions to suppress.

The record shows that Ralph Howard (“Howard”) was driving a black Corvette on Highway 121 in Charlton County when the car struck and killed a deer. Because the dashboard instruments indicated a lack of oil pressure he immediately pulled over and asked his wife to call his brother, a former Georgia state trooper, and instruct him to call a tow truck. A passing volunteer firefighter informed a Charlton County deputy sheriff about the disabled car, and the deputy proceeded to the scene. When he arrived, he observed a tow truck and three individuals, who were standing near the disabled Corvette, which was in the process of being loaded onto the tow truck.

The deputy immediately told the tow truck driver to stop loading the Corvette. He then asked whether a report was needed of the accident and, if so, he would have to know who the driver was and see proof of insurance. Howard identified himself as the driver, said he did need a report, and gave the deputy a Georgia driver’s license. When the officer called his dispatcher to have a computer check run on the license, it “came back suspended” because of insurance cancellation. When asked for his insurance card, Howard did not furnish one, but he handed the officer a paper bearing a toll-free number and showing a price quote for insurance on the Corvette.1 Finding this insufficient proof of insurance, the deputy placed Howard under [692]*692arrest for not having proof of insurance and driving without a valid license. The deputy then instructed the tow truck driver to tow the Corvette to the sheriffs office.

The deputy testified at the hearing on the motions that the sheriff’s department had a policy providing that every time a vehicle was impounded an inventory search must be done and that he “was going to do an inventory on the vehicle to have it impounded for not having insurance.” According to the deputy, the sheriff’s office usually allowed the wrecker company to keep the impounded car, but because the deputy could not complete his search at the roadside, he had the car towed to the sheriff’s office.

The car’s two passengers were not arrested at that time. They rode to the sheriff’s office with Howard’s brother, who had arrived at the scene of the accident. The car was towed to the sheriff’s office as well, and Howard was taken to the jail in the patrol car. At the sheriff’s office, the deputy completed the search of Howard’s car. A blue duffel bag was found on the passenger’s side of the floorboard, and in the bag was a brown paper sack. Inside the sack was a plastic bag wrapped in a white towel and containing a white powdery substance that appeared to be cocaine. In the bottom of the bag he found a pistol in a holster.

During the search, the two passengers were standing nearby, and Howard’s wife “kept coming back to the vehicle.” She first told the deputy that “she had some naked photos in a bag” in the car and that she did not want the deputies to see them. Once the duffel bag was found, she placed her hand on the paper sack, saying it was her sandwich and asking if she could carry it with her. The completed search revealed no photographs or sandwiches. After the contraband was found, the deputy locked the car and placed the passengers under arrest. Officers then sought and obtained a search warrant for the car. While executing the warrant, an aerosol can also was found in the blue bag. Inside the can’s false bottom deputies found two plastic baggies containing a white powder.

On appeal from the grant of a motion to suppress, we must construe the evidence most favorably to uphold the findings and judgment of the trial court. We adopt the trial court’s findings as to credibility of witnesses and disputed facts unless they are clearly erroneous. State v. Peirce, 257 Ga. App. 623-624 (571 SE2d 826) (2002). In this case, however, neither the brief three-sentence order granting the motions to suppress nor the transcript of the hearing on the motions discloses the trial court’s rationale or the ground on which the motions were granted. No material facts were disputed, however, and a trial court’s application of law to undisputed facts is reviewed de novo. We review the ruling to ensure that it had a substantial basis. Id. at 624.

[693]*693The State contends that the impoundment was reasonable and the inventory search was therefore lawful. They argue that the trial court therefore erred in granting the motions to suppress. We agree.

Under Georgia law, two alternatives exist for determining whether a particular search of a vehicle was lawful. State v. Heredia, 252 Ga. App. 89, 91 (3) (555 SE2d 91) (2001). Police officers may perform an inventory search of a car in preparation for impounding it. Using this approach, an impoundment need not be absolutely necessary, so long as it was reasonable under the circumstances. If the impoundment was reasonable, the search was lawful. Gaston v. State, 257 Ga. App. 480, 483 (571 SE2d 477) (2002). See also Williams v. State, 204 Ga. App. 372, 374 (419 SE2d 351) (1992). The ultimate test for the validity of the police officer’s conduct is whether, under the circumstances then confronting the officer, his conduct was reasonable within the meaning of the Fourth Amendment. State v. Bell, 259 Ga. App. 328, 330 (577 SE2d 39) (2003). Alternatively, officers may search a car incident to a lawful arrest of its occupant. See, e.g., Vega v. State, 236 Ga. App. 319 (512 SE2d 65) (1999).

In this case neither the brief three-sentence order granting the motions to suppress nor the transcript of the hearing on the motions discloses the ground on which the motions were granted. Appellees’ argument focuses on showing that the trial court properly granted the motions because an inventory search was not reasonable under the circumstances. See, e.g., Fortson v. State, 262 Ga. 3, 4 (1) (412 SE2d 833) (1992).

The deputy testified that he was performing an inventory search prior to impounding Howard’s car. In State v. Lowe, 224 Ga. App. 228 (480 SE2d 611) (1997), we found impoundment unreasonable when the driver was arrested on a misdemeanor offense totally unrelated to his vehicle. The defendant was not removed from his truck but was arrested as he approached it while it was legally and safely parked on private property. Id. at 229-230. See also Bell, supra (driver arrested for violating municipal ordinance unrelated to vehicle and car parked on private property). Unlike the situation in Lowe and Bell, however, Howard was arrested on charges directly related to his car, which was disabled on the side of a public road. Although Howard had summoned a tow truck and the truck was present at the scene when the deputy arrived, no evidence was presented showing that Howard actually did have insurance.

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State v. Howard
592 S.E.2d 88 (Court of Appeals of Georgia, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
592 S.E.2d 88, 264 Ga. App. 691, 2003 Fulton County D. Rep. 3634, 2003 Ga. App. LEXIS 1440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-howard-gactapp-2003.