State v. Key

Shulman, Presiding Judge,

dissenting.

Because I have concluded that the search which uncovered the contraband in this case followed an illegal arrest and was not the *415result of a proper application of the “plain view” doctrine, I must respectfully dissent from the majority’s reversal of the trial court’s suppression of the evidence.

1. I do not question the legality of the police officer’s initial detention of defendant and his companion. The removal of the two young men from the car and their placement behind the vehicle were reasonable actions taken by the lone officer to allay any fears he may have had for his personal safety. Even the officer’s intrusion into the back seat of the car to investigate the suspicious sleeping bag was justifiable. However, once that suspicion had been satisfied and the officer had demanded of and received from defendant and his companion drivers’ licenses which contained names matching the previous oral identification the young men had given, the officer stepped into illegal waters by further detaining defendant, thus effecting an illegal arrest, and by conducting a more intensive search of the automobile. State v. Smith, 164 Ga. App. 142 (2) (296 SE2d 141) (decided October 13, 1982); Radowick v. State, 145 Ga. App. 231 (244 SE2d 346). See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889).

This court’s decision in Radowick presents an overall view of a “Terry” stop as a “brief stop limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification, licensing of a driver and a vehicle if appropriate, a protective ‘pat-down’ of the outer surface of clothing for weapons if the officer has reasonable apprehension that the person is armed or dangerous, and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop.” Radowick, supra, p. 237. This court went on to say that “it is evident that after the ‘brief stop’ authorized by Terry, absent additional corroborative evidence of the criminality asserted in the original information, the authorized ‘momentary detention’ is transformed into ‘unauthorized detention’ by reason of the ‘intolerable intensity’ of the investigative seizure, and an illegal arrest comes into being.” Id., p. 238.

Although the detention in the present case was for a shorter length of time than that involved in Radowick, the result was exactly the same — the initial legal detention developed into an illegal arrest. “Where no reasonable cause for the defendant’s arrest existed when the search was made and it was not made in connection with or incident to a lawful arrest without a warrant then the search was unlawful. [Cit.]... ‘The obtaining of the evidence was tainted by the illegal arrest.’ [Cit.]” Hill v. State, 140 Ga. App. 121 (3) (230 SE2d 336). His fears and suspicions allayed, the officer in the present case should have permitted the young men to return to their car and leave. *416Instead, he illegally detained them while he satisfied his idle curiosity. Mere satiation of an officer’s curiosity is not a valid basis for a search.

2. The majority bases its reversal on the conclusion that some of the contraband was discovered in the “plain view” of the officer. I am in full agreement with the view of this doctrine espoused by the majority in its opinion at page 412: “law enforcement officers simply have the right to look into automobiles, so long as they have a legitimate reason and are looking from a place in which they have a right to be (e. g., a street or roadside). Any incriminating evidence they have the fortune to see in plain view may be seized and later admitted as evidence. [Cit.]” That doctrine, however, is inapplicable to the case at bar because the officer had no “legitimate reason” to look into the automobile once he had quieted his suspicions about the sleeping bag. Thus, anything found while the officer conducted a search for curiosity’s sake must be suppressed, as the trial court ruled. Because I would uphold the trial court’s grant of defendant’s motion to suppress, I must dissent from the majority opinion.

I am authorized to state that Chief Judge Quillian joins in this dissent.