Daniel v. State , 199 Ga. App. 180 ( 1991 )

Pope, Judge.

Defendant Juanza D. Daniel entered a guilty plea to the offense of possession of a firearm by a convicted felon but reserved his right to appeal from the denial of his motion to suppress. We affirm.

The transcript from the motion to suppress hearing shows the following: Deputy Mike Huntzinger of the Clarke County Police Department stopped defendant for travelling at an excessive rate of speed. He requested defendant’s driver’s license and proof of insurance. Defendant told the officer his license had expired or been sus pended but retrieved his proof of insurance from inside his car. After a computer check revealed that defendant’s license had been suspended for points, Huntzinger placed defendant under arrest for driving with a suspended license, handcuffed him and placed him in the back of his patrol car. Huntzinger then searched defendant’s vehicl and discovered a .38 caliber revolver “stuffed down” between th< front seat and the console. The officer testified that the search was conducted incident to defendant’s arrest, and not for the purpose oj inventorying the contents of the automobile (which was impounded' or for the purpose of discovering evidence of the crime for which de fendant had been placed under arrest (driving with a suspended li csnss)

Relying on New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981), the trial court denied defendant’s motion to supi press. On appeal defendant argues that, pretermitting the validity o| the search under federal law, the search was illegal under state law because it was not authorized by OCGA § 17-5-1.¹

“In New York v. Belton, [supra] the United States 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.’ Id. at 460. ‘In (State v. Hopkins, 163 Ga. App. 141 (293 SE2d 529) (1982), this court) found that the teaching of Belton was “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. 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. . . .” ’ ” State v. Tinsley, 194 Ga. App. 350, 351 (1) (390 SE2d 289), cert. denied, 194 Ga. App. 912 (1990).

In Tinsley the challenged search, like the search in this case, occurred after defendant had been arrested for a traffic violation (driving without a license) and placed in the back of the squad car. In upholding the search in Tinsley, this court, although not specifically addressing the applicability of OCGA § 17-5-1, noted that while the search might not be upheld on the pretext of discovering fruits or instrumentalities of the crime for which the defendant was arrested, OCGA § 17-5-1 (a) (3), since in the case of traffic violations there are no fruits or instrumentalities to be discovered, “a search of . . . the area within such person’s immediate presence may be conducted for other purposes [enumerated in OCGA § 17-5-1], such as protecting the officer from attack [or preventing the arrestee from escaping]. OCGA § 17-5-1 (a) (1) [& (2)].” Id. at 352. See also Medlin v. State, 168 Ga. App. 551 (2) (309 SE2d 639) (1983) in which this court, rely-ling on Belton, rejected defendant’s claim that the search “of his vehicle [was] not justified as [a search] incident to a lawful arrest under jOCGA § 17-5-1.” (Emphasis supplied.) Id. at 552.

| We also reject defendant’s implicit contention that the arresting [officer make two inquiries, one under state and one under federal law, before determining whether to proceed with the contemporaneous search of an automobile following the arrest of its occupant. Such a procedure would, in effect, completely frustrate the stated purpose of the Supreme Court “to establish ... a single familiar standard [for Ihe category of cases where the arrestee is a recent occupant of the bar but no longer has access to it or its contents] to guide police of-iicers, who have only limited time and expertise to reflect on and bal-anee the social and individual interests involved in the specific circumstances they may confront. (Cit.) New York v. Belton, 453 U. S. at 458, supra.” State v. Hopkins, 163 Ga. App. 141, 144 (293 SE2d 529) (1982). In so holding we find instructive the holding in Durden v. State, 250 Ga. 325, 327 (1) (297 SE2d 237) (1982), in which our Supreme Court was confronted with a similar issue involving probable cause to arrest under federal and state law. In that case the court recognized that “dual inquiries, one under federal law and one under state law, serve no useful purpose and result in complicating the law in an area which needs to be readily understood by law enforcement officers.” Id. at 327. Thus, for purposes of searching a vehicle contemporaneously with the lawful arrest of an individual, “we find the state rule to be the same as the federal rule. [Such a search], legal under federal law, [is] legal under state law. Thus, defendant’s motion to suppress the evidence was properly denied.” Id.

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs specially.

1 OCGA § 17-5-1 (a) allows a search incident to a lawful arrest for the following pul toses: “(1) Protecting the officer from attack; (2) Preventing the person from escaping; (3) discovering or seizing the fruits of the crime for which the person has been arrested; or (4) discovering or seizing any instruments, articles, or things which are being used or which may ave been used in the commission of the crime for which the person has been arrested.”