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SMITH, Presiding Judge.
Motion to suppress. Paulding Superior Court. Before Judge Murphy.
We granted the application of Robert Clayton Scoggins for an interlocutory appeal of the trial court's order denying his motion to suppress. Because the search of Scoggins's car after he fled from a traffic stop and then attempted to flee on foot was permissible as a search incident to arrest, we affirm on that basis and do not reach the issue of whether an inventory search was properly conducted.
Another person in the building identified Scoggins as the owner of the green Camaro. The officer asked Scoggins for identification, and he responded "that he didn't need a driver's license, that he wasn't driving a vehicle. And I asked him for I.D. I didn't ask him for any driver's license or anything." Scoggins then went directly to the green Camaro and retrieved a Georgia identification card from inside. When the officer asked him why he had tried to elude the traffic stop, Scoggins responded that his license was suspended. At that point, the officer attempted to pat Scoggins down, and Scoggins pushed him away and fled back inside the building. The officer radioed for assistance and then pursued Scoggins, subdued and handcuffed him, and placed him in the back of his patrol car.
The officer then looked inside the green Camaro, testifying that he did so because of Scoggins's conduct in speeding and fleeing both in his car and on foot. He saw a cardboard box on the rear seat, and when he lifted the box the bottom fell out, revealing two large blocks of what appeared to be marijuana. Most of the encounter, including the search, was recorded on the patrol car's video camera, and the tape was reviewed by the court. According to the timer on the videotape, between eight and nine minutes elapsed from the officer's arrest of Scoggins to his discovery of the marijuana.
The United States Supreme Court has addressed the issue of searches incident to the lawful arrest of the occupant of a motor vehicle. In New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981), the police found cocaine in the pocket of a jacket found on the backseat of an automobile after the occupants had been arrested and removed from the vehicle. Id. at 456. The Supreme Court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." (Footnotes omitted.) Id. at 460. This is true even "after the arrestees are no longer in it." Id. at 459. In so holding, the Supreme Court reversed the decision of the New York Court of Appeals, which had held that the search of the jacket was not incident to a lawful arrest when the automobile was no longer accessible to the occupants. Id. at 456.
In numerous subsequent cases, this court has relied upon Belton to reach the same conclusion in similar circumstances. See, e.g., Vega v. State, 236 Ga. App. 319, 320 (512 SE2d 65) (1999); State v. Haddock, 235 Ga. App. 726, 728, n. 2 (510 SE2d 561) (1998); State v. Elliott, 205 Ga. App. 345, 346 (422 SE2d 58) (1992).
We note that Fortson v. State, 262 Ga. 3 (412 SE2d 833) (1992), contains a statement that our decision in State v. Hopkins, 163 Ga. App. 141 (293 SE2d 529) (1982), held that "a search incident to an arrest was not allowable after the defendant was safely secured in the back of the police car." 262 Ga. at 5 (2). 1 But a review Hopkins shows that this court held exactly the opposite, finding that Belton, supra, established a " 'single standard' " permitting a search of the passenger compartment of a vehicle incident to arrest even when the arrestee no longer had access to the vehicle or its contents. Hopkins, supra, 163 Ga. App. at 144. The language cited by Fortson appears to have been taken from the dissent. 2 163 Ga. App. at 145-146 (1) (Shulman, P. J., dissenting). Also, a portion of the analysis in a case decided by this court after Hopkins is instructive:
This court has held that a search is valid as an incident to a lawful custodial arrest where the defendant has been handcuffed and placed in a patrol car while the search was conducted. The decisive factor is whether the arrestee was, at the time of his arrest, a recent occupant of the automobile, not whether the automobile and its contents were in his immediate control at the time of the search.
(Citations and punctuation omitted; emphasis in original.) Sims v. State, 197 Ga. App. 214, 215 (2) (398 SE2d 244) (1990), citing State v. Hopkins, supra, 163 Ga. App. at 141 (2). We therefore conclude that the obiter dictum in Fortson has no effect on the Belton rule and that the search in this case was valid "as an incident to a lawful custodial arrest of a person who had recently occupied the vehicle that was searched. [Cits.]" Haddock, supra, 235 Ga. App. at 728, n. 2.
King, King & Jones, David H. Jones, for appellant.
1  In Fortson, the Supreme Court affirmed the denial of a motion to suppress on the ground that the search was properly performed incident to a lawful arrest.
2  Hopkins was an 8-1 decision, with one judge concurring in the judgment only.
Thursday May 21 01:31 EDT

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