Varriano v. State

11 FCDR 3011

312 Ga.App. 266

718 S.E.2d 14

VARRIANO

v.The STATE.

No. A11A0944.

Court of Appeals of Georgia.

Sept. 20, 2011.Reconsideration Denied Oct. 28, 2011.Certiorari Denied Feb. 27, 2012.

Scott Andrew Drake, Lawrenceville, for appellant.

Daniel J. Porter, Dist. Atty., Charles Paul Efstration III, Asst. Dist. Atty., for appellee.

SMITH, Presiding Judge.

After a bench trial, Joseph Patrick Varriano was convicted of possession of oxycodone. He appeals from the judgment of conviction, asserting as his sole enumeration of error that the trial court erred in denying his motion to suppress contraband found in a consent search of the vehicle in which he was a passenger. The evidence supports the trial court's finding that the owner of the vehicle gave consent to a search of the entire vehicle, including closed containers and packages. We therefore affirm.

We must apply three principles when reviewing a trial court's order on a motion to suppress evidence:

First, the 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 it. 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. (Citation, punctuation and footnote omitted.) State v. Hester, 268 Ga.App. 501, 502, 602 S.E.2d 271 (2004). And on appeal, this court may consider testimony from the trial of the case as well as testimony presented on the motion to suppress. Postell v. State, 279 Ga.App. 275, 276(1), 630 S.E.2d 867 (2006).

With these principles in mind, the evidence shows that police officers stopped a vehicle in which Varriano was the front seat passenger; a third person was in the rear seat. One of the officers asked the driver for permission to search his vehicle, and the driver consented. On further questioning, the officer specified that he asked “for consent to search the entire vehicle” and that he “asked them if they [had] any weapons or drugs in the vehicle or anything illegal.”

During the search, an officer saw “a black book bag” on the rear seat, behind the driver and next to the rear seat passenger. The bag, which was closed, had no label or identifying marks on it. Upon looking inside the bag, the officer found the contraband that is the subject of the motion to suppress. After the contraband was found, the officer asked the driver to whom the bag belonged, and both the driver and Varriano acknowledged that the bag belonged to Varriano.

Varriano contends that the driver's permission extended only to a visual check of the interior of the vehicle and not to any closed containers or bags within the passenger compartment, including the book bag in which he had a “reasonable expectation of privacy.” For this reason, he argues that the contraband found in his book bag should be suppressed.

Varriano's argument is foreclosed by our decision in Taylor v. State, 230 Ga.App. 749(1)(e), 498 S.E.2d 113 (1998). As did the appellant in Taylor, Varriano

argues that any consent by him to search the car did not authorize the officers to open the [container] in which the contraband was found. He cites State v. Corley, [201 Ga.App. 320, 411 S.E.2d 324 (1991) (physical precedent only) ], and State v. Diaz, 191 Ga.App. 830, 832(2), 383 S.E.2d 195 (1989). Both cases are distinguishable. In each, the officer asked merely for permission to “look inside” the vehicle. The court held that the extent of the consensual investigation did not extend to the seizure and examination of any items or containers in the car, which would constitute a full-blown search. In this case, as in Thomas v. State, 201 Ga.App. 292, 293(1), 410 S.E.2d 786 (1991), and Garcia v. State, 207 Ga.App. 653, 656(1)(c), 428 S.E.2d 666 (1993), the defendant consented to a full-blown search of his automobile. See also Gossett v. State, 199 Ga.App. 286, 287(1)(c), 404 S.E.2d 595 (1991).

Id. at 751–752(1)(e), 498 S.E.2d 113 (appellant driver “consented to a search of his vehicle for drugs”; contraband found concealed in folded napkin on floor between front seats).¹

In Hall v. State, 306 Ga.App. 484, 486–487(3), 702 S.E.2d 483 (2010), the officer did not testify that he asked the driver about drugs before asking permission “to search the car,” id. at 485, 702 S.E.2d 483, but we concluded that the driver “had immediate control of the car and, therefore, authority to consent to a search.” (Citation and footnote omitted.) Id. at 487(3), 702 S.E.2d 483. The scope of this general consent included containers within the vehicle, such as the closed box in the hatchback area behind the rear seat in which the contraband was found. Id. And the circumstances did not suggest that Hall, the passenger, “had an exclusive interest in the box that would limit the scope of [the driver's] general consent.” Id. This interpretation is consistent with the law on the scope of a search pursuant to probable cause. See, e.g., State v. Selph, 261 Ga.App. 541, 543, 583 S.E.2d 212 (2003) (probable cause to search includes search of “all packages and containers in the car which might contain contraband without a showing of individualized probable cause for each one, including [appellant passenger's] book bag”).

Varriano asserts that his expectation of privacy in the book bag excludes it from the scope of the driver's consent, citing Corley, supra, and Bowen v. State, 210 Ga.App. 348, 436 S.E.2d 76 (1993). But the trial court found that the general consent to search the entire vehicle, including containers therein, controlled. In light of the evidence presented here, we do not find that conclusion to be clearly erroneous.

Corley addressed the passenger's expectation of privacy argument as an issue of standing: “appellee had the requisite reasonable expectation of privacy to contest the legality of this particular search and seizure.” Id. at 323, 411 S.E.2d 324. The holding with regard to the scope of the search, in contrast, rested upon the finding that the driver gave permission only for the officer to “look inside of” the pickup truck. We held that the officer exceeded the scope of the consent given by opening a closed bag next to the passenger. Id. at 324, 411 S.E.2d 324.

In Bowen, we relied upon Corley, without noting its limited precedential status, to find an expectation of privacy in a passenger's purse found next to her on the rear seat, “ ‘at least to the extent of vesting the passenger or owner with lawful authority to assert a violation of Fourth Amendment rights.’ ” Id. at 349(1), 436 S.E.2d 76, citing Corley, supra, 201 Ga.App. at 323, 411 S.E.2d 324. But we concluded that, again as in Corley, the evidence presented did not show a general or unlimited consent to search. The police officer merely stated that he obtained an unspecified “ consent to search.” 210 Ga.App. at 349(1), 436 S.E.2d 76. He also acknowledged that he did not ask for permission to search either the driver's or the appellant passenger's purse, and he did not testify that he informed them that he was looking for drugs or weapons. Id.

This court relied upon that testimony to hold that the evidence should have been suppressed because the officer “admitted that the search of [appellant's] purse was without consent” and the State therefore failed to establish that...