State v. Millsap

528 S.E.2d 865, 243 Ga. App. 519

• Court: Court of Appeals of Georgia
• Decided: January 28, 2000
• Docket: A99A2064
• Status: Published

Opinions

Ellington, Judge.

Pennie Dee Millsap was indicted for violating the Georgia Controlled Substances Act, for possessing marijuana and methamphetamine, OCGA § 16-13-30. The State appeals the grant of Millsap’s motion to suppress evidence. We reverse.

In reviewing a motion to suppress, the evidence is construed most favorably to uphold the trial court’s findings and judgment, and the court’s findings on disputed facts and credibility will be adopted unless they are clearly erroneous. Redd v. State, 229 Ga. App. 364, 365 (494 SE2d 31) (1997).

Viewed in this light, the evidence shows that Millsap was a passenger in a vehicle that was stopped when a police officer observed the driver not wearing a seat belt, in violation of OCGA § 40-8-76.1. After issuing the driver a warning for the violation, the officer asked for, and the driver granted, both oral and written consent to search the vehicle. The officer searched the car and found nothing, then asked Millsap for permission to search her purse. After obtaining her consent, the officer searched the purse and found marijuana and methamphetamine. At the hearing on the motion to suppress the evidence, the trial court found that the officer’s stop for the seat belt violation was pretextual and invalidated both consents to search.

OCGA § 40-8-76.1 (f) states:

[plrobable cause for violation of [OCGA § 40-8-76.1 (b)] shall be based solely upon a law enforcement officer’s clear and unobstructed view of a person not restrained as required by this Code section. Noncompliance with the restraint requirements of this Code section shall not constitute probable cause for violation of any other Code section.

The General Assembly added the language concerning probable cause for violation of other Code sections for the purpose of prohibiting a search of a person or a vehicle based solely on the failure of the occupant of the front seat to wear a seat belt. Davis v. State, 232 Ga. App. 320, 321-322 (1) (501 SE2d 836) (1998). However, the language was not intended to prevent an officer from making an arrest on additional offenses based upon evidence ascertained through reasonable inquiry and investigation following the initial stop. Id.

The officer testified that he had a clear and unobstructed view of the driver of the vehicle not wearing a seat belt. This view was sufficient to establish probable cause for the stop. OCGA § 40-8-76.1 (f). Accordingly, the stop was not pretextual.

Once the vehicle was lawfully stopped, the officer was allowed to ask for the driver’s consent to search the car. See Stokes v. State, 238 Ga. App. 230, 233 (518 SE2d 447) (1999). No additional probable cause or articulable suspicion was required to simply ask the question. Id. “Even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual . . . and request consent to search — as long as the police do not convey a message that compliance with their requests is required.” (Citations and punctuation omitted.) State v. Westmoreland, 204 Ga. App. 312 (1) (418 SE2d 822) (1992).

The officer testified that the driver and the vehicle’s occupants were free to leave at any time after he gave the verbal warning for the seat belt violation. Both the driver and Millsap were within their rights to refuse the officer’s request to search the vehicle and the purse. The trial court determined, however, that Millsap instead remained at the scene and consented to a search of her purse. We will not disturb the trial court’s finding that Millsap’s consent to the search of her purse was valid. Because the stop was not pretextual, the trial court erred in suppressing evidence obtained in the search.

Judgment reversed.

McMurray, P. J, and Eldridge, J., concur. Andrews, P. J., and Barnes, J., concur in judgment only. Blackburn, P. J., and Ruffin, J., dissent.