Waggoner v. State

491 S.E.2d 88, 228 Ga. App. 148, 97 Fulton County D. Rep. 3007, 1997 Ga. App. LEXIS 977
CourtCourt of Appeals of Georgia
DecidedJuly 30, 1997
DocketA97A1124
StatusPublished
Cited by10 cases

This text of 491 S.E.2d 88 (Waggoner 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
Waggoner v. State, 491 S.E.2d 88, 228 Ga. App. 148, 97 Fulton County D. Rep. 3007, 1997 Ga. App. LEXIS 977 (Ga. Ct. App. 1997).

Opinion

Blackburn, Judge.

Jason Waggoner appeals his convictions of driving under the influence and several related charges arising out of a one-car accident, contending that the court erred in denying his motion to suppress and in allowing testimony regarding the results of his* blood-alcohol test. He also contends there was no probable cause for his arrest. For the reasons set forth below, we affirm.

1. Waggoner contends that the court erred in denying his motion to suppress evidence regarding a vodka bottle found in his car, arguing that the evidence was the result of an illegal search. “When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citation and punctuation omitted.) Lee v. State, 222 Ga. App. 389, 390 (2) (474 SE2d 281) (1996).

Officer John Robicheaux was the only witness to testify at the hearing on the motion to suppress. He stated that when he arrived at the scene of the accident, Waggoner’s automobile was severely damaged and in the middle of an intersection. The car had hit a utility pole, and there were trees on fire and live power lines on the road. Waggoner, who had visible head injuries, told Robicheaux that he had fallen asleep while driving. Robicheaux had Waggoner wait in his patrol car while he took control of the scene and called the fire department and power company. Waggoner was not under arrest at this time, and the officer informed him that he was free to leave the vehicle. Robicheaux testified that he did not suspect alcohol was involved at this time.

As the car was severely damaged and obstructing the intersection, Robicheaux asked Waggoner if he had a preference as to who came to remove the car, and Waggoner stated that he' did not. In accordance with county policy, Robicheaux then arranged for Crane Wrecker, a county-contracted wrecker service, to remove the automobile. Robicheaux then performed an inventory search of the automo *149 bile’s contents and discovered a nearly empty bottle of vodka on the front floorboard. When he returned to the patrol car to question Wag-goner about the bottle, he noticed that Waggoner had vomited on himself in the car. Waggoner told Robicheaux that he had been drinking the vodka that night, that the bottle had been full, and that he had been the only one drinking. Robicheaux testified that there was only about an inch of vodka left in the 750-milliliter bottle after the accident. Robicheaux then arrested Waggoner for driving under the influence of alcohol.

Waggoner contends the inventory search was improper because there was no necessity for the State to seize the vehicle. However, “[i]t is well established that a police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve it. They are permitted to take charge of property under broader circumstances than that.” (Citation, punctuation and emphasis omitted.) State v. Evans, 181 Ga. App. 422, 423-424 (2) (352 SE2d 599) (1986). “Inventory searches have two purposes: to protect the vehicle and the. property in it, and to safeguard the police or other officers from claims of lost possessions.” (Citations and punctuation omitted.) Pierce v. State, 194 Ga. App. 481 (391 SE2d 3) (1990). “[T]he decisive evidentiary issue in cases involving inventory searches [is] the existence of ‘reasonableness’ rather than the existence of ‘exigent circumstances.’ ” Evans, supra at 424 (2).

In this case, the automobile was severely damaged and blocking an intersection. When given the opportunity, Waggoner expressed no preference regarding towing companies and allowed Officer Robicheaux to make the towing arrangements. Therefore, it was necessary for the police to exercise at least temporary dominion over the vehicle. Under the circumstances, it was reasonable for Robicheaux to inventory the contents of the automobile to protect against claims of lost or stolen property while the vehicle was in the possession of the police or its contractors.

Fortson v. State, 262 Ga. 3 (412 SE2d 833) (1992), does not alter this analysis. In that case, the Supreme Court disagreed with this Court’s statement that “an inventory search is appropriate whenever the police department selects the towing vehicle rather than the defendant in order to protect the police against claims of lost or stolen property.” Fortson v. State, 201 Ga. App. 272, 274 (410 SE2d 774) (1991). However, the reason for the Supreme Court’s disagreement was that the defendant in that case made his own private contract with the towing company to remove his automobile. Fortson, 262 Ga. at 4 (1). In the present case, Waggoner did not express a preference for a towing company or make his own contractual arrangements with Crane’s Wrecker, but left such matters to the police. Therefore, *150 the Supreme Court’s reasoning in Fortson is inapplicable.

As the evidence supports the trial court’s determination that the inventory search was proper, the court did not err in denying the motion to suppress.

2. Waggoner contends the trial court erred in finding that there was probable cause for his arrest. He argues that the results of his state-administered blood test should have been suppressed as the “fruit of the poisonous tree” arising from an improper search and a lack of probable cause for the subsequent arrest.

“For an officer to have sufficient probable cause to conduct a valid DUI arrest, he must have knowledge or reasonably trustworthy information that: (1) defendant was in actual physical control of a moving vehicle; (2) while under the influence of any drug; (3) to a degree which renders defendant incapable of driving safely.” (Punctuation omitted.) Lee, supra at 391.

The evidence supports the trial court’s determination that there was probable cause for Waggoner’s arrest. Waggoner admitted that he was driving the automobile, which left the road and struck a utility pole. He told Officer Robicheaux that he had fallen asleep. He admitted that he had been drinking the vodka that night, that the bottle had been full, and that he had been the only one drinking. Robicheaux testified that there was only about an inch of vodka left in the 750-milliliter bottle after the accident. Although Waggoner was free to leave the patrol car, he did not do so. He remained in the vehicle and vomited therein before being placed under arrest. Robicheaux testified that, although he did not initially notice the smell of alcohol, he did smell alcohol when talking with Waggoner after finding the vodka bottle. Under these circumstances, the trial court did not err in finding that Robicheaux had probable cause for the arrest. See Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996); Whitener v. State, 201 Ga. App. 309, 310 (1) (410 SE2d 796) (1991); State v. Greene, 178 Ga. App.

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Bluebook (online)
491 S.E.2d 88, 228 Ga. App. 148, 97 Fulton County D. Rep. 3007, 1997 Ga. App. LEXIS 977, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waggoner-v-state-gactapp-1997.