# State v. Hopkins > Court of Appeals of Georgia · July 16, 1982 · 163 Ga. App. 141 URL: https://www.frixlaw.com/law-library/cases/9587939 ## Case - **Full name:** The State v. Hopkins - **Court:** Court of Appeals of Georgia - **Decided:** July 16, 1982 - **Citations:** 163 Ga. App. 141; 293 S.E.2d 529; 1982 Ga. App. LEXIS 3190 - **Precedential status:** Published - **Opinion:** Dissent by Shulman - **Judges:** Carley, Quillian, Deen, McMurray, Banke, Birdsong, Pope, Sognier, Shulman - **Cited by:** 35 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9587939 ## How later opinions describe it (automated extraction) - holding that “a search of the passenger compartment of an automobile recently occupied by an arrestee is a valid search incident to an arrest, even if the arrestee had no ‘immediate control’ of the area at the time the search was conducted” ## Opinion text Shulman, Presiding Judge, dissenting. Because I cannot agree with the majority’s interpretation of the U. S. Supreme Court’s decision in New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768), I must respectfully dissent from both divisions of the majority opinion. 1. In its Belton opinion, the U. S. Supreme Court recognized the rationale behind the “search incident to a lawful arrest” exception to the warrant requirement of the Fourth Amendment: “. . . a lawful custodial arrest creates a situation which justifies the contemporaneous search without a warrant of the person arrested and of the immediately surrounding area. Such searches have long been considered valid because of the need ‘to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape’ and the need to prevent the concealment or destruction of evidence. [Chimel v. California, 395 U. S. 752 ,] 763 (23 LE2d 685, 89 S. Ct. 2034 ).” New York v. Belton, supra, 69 LE2d 768, 773. The court went on to note that, while the above rule was one which could be stated clearly, its application to individual cases had been difficult since “courts have found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile and the arrestee is its recent occupant.” Id., p. 774. In an attempt to establish “the workable rule” required in a case involving a search incident to a lawful arrest, but “in no way altering] the fundamental principles established in the Chimel case regarding the basis scope of searches incident to lawful custodial arrests” (Id., p. 775, n. 3), the court concluded 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.” Id., p. 775. By holding that “whether the automobile and its contents were in [the arrestee’s] immediate control at the time of the search” is not the “decisive factor” involved in a valid search incident to a lawful arrest, the majority has vitiated the vital portions of the law governing such searches as enunciated in Chimel v. California and reaffirmed in New York v. Belton. As stated earlier, the rationale which permits a search incident to an arrest to occur without a warrant is the need to remove any weapons or evidence the arrestee might attempt to use or destroy. When appellee Hopkins was handcuffed and placed in the backseat of the patrol car, no valid *146 search incident to his arrest could be conducted on the car he had formerly occupied since he was no longer in a position to be able to reach within the car to gain possible access to a weapon or evidence. Since no portion of the passenger compartment was within Hopkins’ immediate control at the time of the search, the search was not a valid search incident to a lawful arrest. The majority makes much of the lower court’s factual determination in New York v. Belton that Belton’s jacket, located on the automobile’s backseat, was “inaccessible” to the four suspects involved in that case. A crucial point of the Belton case is that those suspects were “standing by the side of the car” (emphasis supplied) while the officer quickly confirmed his suspicions that marijuana was present in the car. In standing next to the car, one or all of the suspects had a portion of the passenger compartment within his immediate control. In its Belton decision, the U. S. Supreme Court attempted to put an end to case by case factual determinations as to just how much of the passenger compartment an arrested “recent occupant” of the car could reach — it forsook the method by which the reach of each suspect is measured to determine the area of his immediate control for a more concise rule: if a suspect can reach into the passenger compartment to gain possible access to a weapon or evidence, he is deemed able to reach into the entire passenger compartment and, “if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.” Id., p. 775.1 read New York v. Belton as authorizing, as a search incident to an arrest, a search of the entire passenger compartment of an automobile whose occupant has just been arrested while that occupant is in a position to have possible access to the vehicle to obtain a weapon or destroy evidence, i.e., when all or a portion of the passenger compartment is within the arrestee’s area of immediate control. In the case at bar, the U. S. Supreme Court’s holding in New York v. Belton does not authorize a search of the automobile in which appellee was sitting at the time of his arrest because, at the time of the search, appellee was handcuffed and locked inside the patrol car and his companion had already departed. Thus, the searched vehicle did not encompass “the area into which an arrestee might reach in order to grab a weapon or evidentiary items.” Chimel v. California, supra, p. 763 . 2. Since I cannot condone the search conducted as one having occurred incident to appellee’s lawful arrest, I must address the state’s contention that the search qualified as a lawful inventory search. An inventory search of a vehicle impounded by a police department is constitutionally permissible. South Dakota v. Opperman, 428 U. S. 364 (96 SC 3092, 49 LE2d 1000). However, if the *147 impoundment of an automobile is unreasonable, the inventory search which follows is invalid, and the fruits thereof must be suppressed. State v. Ludvicek, 147 Ga. App. 784 ( 250 SE2d 503 ). Because I conclude that the impoundment of the automobile in which appellee was sitting at the time of his arrest was unreasonable, I would uphold the trial court’s decision to suppress the evidence procured by means of the inventory search which followed the impoundment. The automobile in question was legally parked when the officers approached. From both a registration check and information received from appellee and his companion, the officers knew that Mamie Tatum, and not either of the occupants of the car, owned the vehicle. One of the arresting officers testified that appellee expressed a desire to call the owner and was told he could make a telephone call from the jail. No effort to contact the owner was made by the police. “Where the officer knows the identity of the owner in question, he should make at least a reasonable effort to determine the owner’s wishes regarding disposition of the vehicle and that only after such a reasonable effort is made would the necessity of impoundment attach.” State v. Darabaris, 159 Ga. App. 121, 123 ( 282 SE2d 744 ). See also Mulling v. State, 156 Ga. App. 404 ( 274 SE2d 770 ); State v. Thomason, 153 Ga. App. 345 (3) ( 265 SE2d 312 ); State v. Ludvicek, supra. The inability of the car to start on its own, the safety of the car’s present location, and the belief that a police tow truck would arrive on the scene before the owner would do not excuse the officers’ failure even to attempt to contact the owner of the vehicle to ascertain her wishes regarding her car. “While we do not wish to impose unnecessary burdens upon an already overburdened police force, we do not believe it would have been unreasonable for the arresting officer[s] to seek instructions from Ms. [Tatum] inasmuch as [they] had been told she was the owner [and they] had verified the accuracy of that information . . . Perhaps a different result would be proper if Ms. [Tatum] could not have been located following at least a reasonable effort. [Cit.] However, under the circumstances presented, [I] concur with the judgment of the trial court that impoundment was unnecessary and therefore the resultant inventory was also improper.” State v. Ludvicek, supra, p. 786 . For the reasons stated, I would affirm the trial court’s grant of appellee’s motion to suppress and I must respectfully dissent from the majority’s ruling to the contrary. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9587939. Public record. Not legal advice.