Salter v. State

Banke, Presiding Judge.

The appellant was convicted of possession of cocaine with intent to distribute based on evidence that a quantity of crack cocaine had been found underneath the back- seat of an automobile he was driving. His threshold contention on appeal is that the contraband should have been suppressed as the fruit of an unlawful search or seizure.

Although no transcript of the motion to suppress hearing has been included in the record on appeal, the parties appear to be in agreement that, insofar as the circumstances surrounding the search are concerned, the evidence introduced at trial was identical to the evidence introduced at that hearing. The trial transcript reveals that the circumstances surrounding the search were as follows: Acting in response to information received three days previously from “a concerned citizen” to the effect “there was a [red, 1970 model] Volkswagen coming through down [Hardin Allen Road] selling crack cocaine,” the county sheriff and a deputy drove to the location in question, parked on a side road and waited there hoping to “catch the car.” At around midnight or 1:00 a.m., a vehicle which sounded to the sheriff like “an old model Volkswagen” came down the road, stopped about a hundred yards from their position and turned off its lights. The officers immediately proceeded toward this vehicle and, as they were doing so, observed another vehicle pull up behind it. Upon reaching the vehicles, the officers turned on their blue lights, and the second vehicle immediately backed up and sped away. The sheriff testified that “[t]he Volkswagen, he wanted to back out, too, but we cut him off.”

*243The officers were able to ascertain at this time that the remaining vehicle was in fact a red Volkswagen and that it was occupied by three persons — the appellant, who was driving, a male passenger seated beside him in the front, and a female passenger seated in the back. The three were immediately removed from the car and searched. Although no weapons or contraband were found on any of them, the appellant and the male passenger were taken into custody, while the female passenger was permitted to leave.

After determining that the Volkswagen belonged to the appellant, the officers asked him to consent to a search of the vehicle, but he refused. The vehicle was then towed to the courthouse, where it was subjected to an “inventory” search, during which two objects described as “homemade pipes” were discovered in a “glove box” on the driver’s door. The back seat was then removed from the vehicle, and a “penny matchbox” containing eight pieces of crack cocaine weighing a total of 0.9 grams was discovered on the floor beneath it. Both the male passenger and the female passenger, testifying for the state, denied any knowledge of the contraband. Held:

1. “Whether the search is sought to be justified as incident to the appellant’s arrest for possession of cocaine or whether it is sought to be justified by exigent circumstances, it cannot be upheld unless probable cause existed for a belief that the appellant was currently in unlawful possession of cocaine. Under the standard set forth by the United States Supreme Court in Illinois v. Gates, [462] U. S. [213] (103 SC 2317, 76 LE2d 527) (1983), probable cause may be predicated on an informant’s tip only if, under the ‘totality of the circumstances,’ including the ‘veracity’ and ‘basis of knowledge’ of the informant, there is a ‘fair probability’ that contraband or evidence of a crime will be found in a particular place. Id. at 4716.” Felker v. State, 172 Ga. App. 492, 494 (323 SE2d 817) (1984).

There is no suggestion in this case that the informant revealed to the sheriff the source of his information, nor was the information he provided sufficiently detailed to suggest that it was based on anything more substantial than mere rumor. See generally Clark v. State, 189 Ga. App. 124, 125 (375 SE2d 230) (1988). While the tip, combined with the observed presence of the red Volkswagen on the roadway ah 1:00 a.m., its attempted clandestine rendezvous with another vehicle, and the flight of the latter vehicle from the scene, certainly gave rise to an articulable suspicion of criminal wrongdoing sufficient to support an investigatory detention, cf. Chumbley v. State, 180 Ga. App. 603 (349 SE2d 823) (1986), we do not believe the facts known to the officers after completing their search of the appellant and the other occupants of the Volkswagen were sufficient under the circumstances to establish probable cause for the appellant’s arrest for unlawful possession of drugs. Accordingly, we are constrained to hold that the “in*244ventory search” of the vehicle was not authorized and that the trial court erred in denying the appellant’s motion to suppress. Compare State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984); Clark v. State, supra; Cichetti v. State, 181 Ga. App. 272 (1) (351 SE2d 707) (1986); Mines v. State, 167 Ga. App. 766 (1) (307 SE2d 291) (1983).

2. The foregoing holding renders it unnecessary for us to address the appellant’s remaining enumerations of error.

Judgment reversed.

Sognier, Pope, Beasley and Cooper, JJ., concur. Carley, C. J., concurs in judgment only. Deen, P. J., McMurray, P. J., and Birdsong, J., dissent.