State v. Loechinger

357 Ga.App. 852

851 S.E.2d 838

STATE

v.LOECHINGER.

A20A1638

Court of Appeals of Georgia.

November 24, 2020

Lenny I. Krick, Sherry Boston, Decatur, for Appellant.

Meredith Denise McCarrey, for Appellee.

Colvin, Judge.

After Robert Loechinger was pulled over and arrested for driving with a suspended license, the arresting officer conducted an inventory search of the vehicle prior to impounding it. Methamphetamine was discovered in the vehicle during the course of this inventory search. Loechinger was indicted for one count of trafficking in methamphetamine and one count of driving with a suspended license. The State appeals from the trial court's grant of Loechinger's motion to suppress contraband found within the car. For the following reasons, we reverse the trial court's grant of Loechinger's motion to suppress.

When reviewing a trial court's ruling on a motion to suppress evidence, we follow three fundamental principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court's decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court's findings and judgment. However, to the extent that the evidence at a suppression hearing is uncontroverted and the credibility of witnesses is not in question, we conduct a de novo review of the trial court's application of the law to the undisputed facts. Significantly, where controlling facts are not in dispute, such as those facts discernible from a videotape, our review is de novo. Finally, when a defendant moves to suppress evidence based on an illegal search, the State bears the burden of proving that the search was lawful.

(Citations and punctuation omitted.) Edwards v. State , ––– Ga. App. ––––, 850 S.E.2d 837 (Case No. A20A0888, decided October 27, 2020).

So viewed, the evidence presented at the hearing on Loechinger's motion to suppress shows that on May 31, 2019, Officer Sheppard, an officer with the Dekalb County Police Department, was traveling south on Interstate 285 and "running tags" on the National Crime Information Center and the Georgia Crime Information Center databases when he discovered a vehicle registered to a driver with a suspended license. The officer noticed that the database's photo of Loechinger, the car's owner, matched the person driving the car. The officer then conducted a traffic stop. The officer asked Loechinger for his license, and Loechinger could only provide him with the Georgia Identification card issued to him after his driver's license had been suspended.

The officer testified that he arrested Loechinger for driving with a suspended license, placed him in the patrol car, and asked him whether there was anyone who could come to retrieve the car. The officer testified "I believe that [Loechinger] may have said his wife, but I believe ... she was like in Hampton, Georgia. Or I believe that's where he lived, which was – I know it was far.... At least an hour." The officer allowed Loechinger to call his wife. Loechinger told the officer that his wife could come retrieve the vehicle. The officer testified that it was department policy that he wait with the vehicle to be retrieved by another person, but that such policy only allowed him to wait for a "reasonable time." He further testified that if Loechinger had identified someone who could retrieve the car more quickly, he would have waited with the car until it was retrieved.

Officer Sheppard told Loechinger that he was going to have to impound his car because he could not leave it on the side of Interstate 285. The officer then called for a tow truck and proceeded to do an inventory search of the vehicle. He explained that it was a department policy that "any time we impound a vehicle, we have to search the car [to] make sure there's no valuables[, because] [t]he person may complain and say something was in the car at the time of [the] impound." The officer testified that this policy required officers to inventory only valuable items found in a vehicle, such as money, jewelry or electronics. Those items would then be taken and placed in the property room for safekeeping. However, the policy did not require officers to inventory items they found to be not valuable, such as papers or kleenex. During the inventory search of Loechinger's car, the officer discovered in the center console a large plastic bag filled with a substance that tested positive for methamphetamine. He did not find anything else valuable in the car.

Loechinger was indicted for one count of trafficking in methamphetamine and one count of driving with a suspended license. Loechinger filed a motion to suppress the evidence found in the center of the car's console. The trial court granted the motion, finding that although Officer Sheppard "testified his intent was to inventory the vehicle," he did not inventory any valuables in the vehicle and only inventoried contraband. The trial court stated that it did "not credit Officer Sheppard's testimony that an impoundment was reasonably necessary [because it] was not inoperable or in any way obstructing, or making the roadway less safe for someone to pick it up." The State appealed from the trial court's denial of its motion to reconsider.

1. The State argues that the trial court abused its discretion when it granted Loechinger's motion to suppress. We agree.

Police officers may conduct a warrantless search of a vehicle without violating the Fourth Amendment

where the police have impounded the vehicle and, as part of the impoundment process, they take an inventory of the car's contents. Under the impound-inventory exception, where officers have a reasonable basis for impounding the car, the Fourth Amendment allows police to conduct a warrantless, non-investigatory search of the vehicle, pursuant to standard police procedures, to produce an inventory of the vehicle's contents to protect the owner's property, or to protect police from potential danger or claims for the lost or stolen property. Thus, justification for an inventory search is premised upon the validity of the impoundment of the vehicle.

(Citations and punctuation omitted; emphasis in original.) Stroud v. State , 344 Ga. App. 827, 832 (3), 812 S.E.2d 309 (2018).

An officer's decision to impound a vehicle is "valid only if there is some necessity for the police to take charge of the property, and police may not use an impoundment or inventory as a medium to search for contraband." (Citations and punctuation omitted.) Stroud , 344 Ga. App. at 832 (3), 812 S.E.2d 309. See also Fortson v. State , 262 Ga. 3, 4 (1), 412 S.E.2d 833 (1992) (holding that police must have a valid justification for impounding a vehicle and they may not use the inventory search as a pretext for an...