On October 23, 2019, the Court of Appeals of Georgia decided Lowe v. State[i], in which the court discussed various exceptions to the warrant requirement that pertain to vehicles, and ultimately decided to reverse the trial court’s denial of a motion to suppress.  The relevant facts of Lowe, taken directly from the case, are as follows:

[T]he evidence demonstrates that agents with the Savannah Police Department’s Counter Narcotics Team were conducting surveillance on a house on Cottonvale Road based on an anonymous complaint, in the form of a tip sheet. According to the complaint, “M. S.”, an unidentified male, was, among other things, selling drugs at the address, and M. S. drove a Ford van. When agents observed a Honda Passport containing two females depart from the address, they followed the vehicle to conduct “mobile surveillance.” Three agents in separate vehicles followed the car as it stopped at a Wells Fargo Bank, then continued traveling on Highway 17. One of the agents involved in the mobile surveillance testified at the hearing on the motion to suppress that the decision was made to “follow [the vehicle] and in the event that it gave us probable cause for a traffic infraction, we were going to get [it] stopped.” . The agents wanted the vehicle “pulled over, if the opportunity presented itself. . . to be able to search the vehicle and its passengers.” The agents radioed the police department to “get a marked unit in the area for when the vehicle committed an infraction.” One of the agents trailing the vehicle observed “the vehicle change lanes without giving any kind of signal,” and he notified the marked police cars, who then made the traffic stop. Two policemen involved in the traffic stop testified at the motion to suppress hearing. One of the officers testified that they were not given the reason agents wanted the vehicle stopped over the radio, but that were requested to “get probable cause to stop the vehicle.” He testified that agents later told him that they wanted to stop the vehicle “to identify the occupants.”

The officer who made the stop approached the driver, who was identified as Lowe, and asked for her license. He testified that he had a conversation with Lowe, but that it was difficult to do so because “she was very nervous. She was shaking.” A back-up officer and the agents were also on the scene. The officer gave Lowe’s license to the agents who told him to “see if [he could] get her to consent to a search of the car.” Although Lowe refused to consent, the officer testified that he misunderstood and told the agents that she had consented to the search.[1]

During this time, the backup officer approached the passenger window and asked the passenger for identification He testified that the passenger “reached towards the floorboard and when she came back up, I could see in her hand that she had a black mesh pouch and sticking out of that pouch was a plastic baggie. And I noticed some green leafy substance on there.” The officer testified that he observed the plastic bag with the green leafy substance when the passenger opened the bag.[2] The officer removed the plastic bag from the pouch and placed it on the roof of the vehicle. He then asked the passenger if there was “anymore in the car” and if there was anything else [he] need[ed] to know about.” He asked the passenger again what she had in the car, and what he would find when he searched the car. The passenger responded that she did not have anything else, and the officer then asked Lowe, who’s purse was visible, if she had anything in her purse. The women were then removed from the car, and the officer placed the plastic bag back in the car on the passenger’s seat and then searched the contents of the pouch. During the ensuing search of the car, the officers retrieve a plastic Ajax container under the driver’s floorboard containing methamphetamine. Lowe was subsequently arrested and charged with trafficking in and possession of methamphetamine, possession of marijuana, less than one ounce, and possession of drug related objects.[ii]

Lowe filed a motion to suppress the drugs found in her vehicle.  The trial court denied the motion to suppress and held that the automobile exception to the warrant requirement applied because the officers had probable cause to believe the vehicle contained illegal drugs because the officer observed the marijuana in the passengers wallet which was in the car, and the passenger and the driver were in close proximity to each other.  As such, the trial court held there was probable cause to believe the vehicle contained illegal drugs and authorized the search was valid under the automobile exception.  Lowe appealed the denial of the motion to suppress to the court of appeals.

On appeal, the Court of Appeals of Georgia (First Division), examined three possible exceptions to the warrant requirement that the State argued supported the search in this case: (1) the automobile exception, (2) search incident to arrest, and (3) plain view.

The Automobile Exception

The court of appeals first discussed the legal principles that form the basis of the automobile exception.  The court stated

The ‘automobile exception’ to the search warrant requirement is premised upon two characteristics of automobiles[,]. . . . their ‘ready mobility. . . . [and] the diminished expectation of privacy in a car.” (Citations omitted.) State v. Lejeune, 276 Ga. 179, 182 (2) (576 SE2d 888) (2003).

Under the automobile exception to the warrant requirement imposed by the Fourth Amendment, a police officer may search a car without a warrant if he has probable cause to believe the car contains contraband, even if there is no exigency preventing the officer from getting a search warrant. Probable cause to search an automobile exists when the facts and circumstances before the officer are such as would lead a reasonably discreet and prudent man to believe that the contents of the vehicle offend the law. This inquiry is based on the totality of circumstances surrounding a transaction. (Citations and punctuation omitted.) Ross v. State, 323 Ga. App. 28, 29 (1) (747 SE2d 81) (2013). Additionally, upon a showing of probable cause, the officer can search the entire vehicle, “including all containers and packages that may contain such contraband.” (Footnote omitted.) Brown v. State, 311 Ga. App. 405, 408 (2) (715 SE2d 802) (2011). The State bears the burden of proof in establishing that the search falls within a recognizable exception. See OCGA § 17-5-30 (b)[3]; State v. Kuhnhausen, 289 Ga. App. 489, 491 (2) (657 SE2d 592) (2008).[iii]

The court of appeals also discussed two cases related to probable cause to search vehicles where passengers were present.  First, the court examined Ferrell v. State[iv], in which an officer initiated traffic stop on a vehicle that did not initially slow down.  When the car stopped, the officer smelled the odor of marijuana coming from the vehicle, and the passenger admitted she had marijuana in her purse.  Based on the totality of these circumstances, the court of appeals held there was probable cause to search the vehicle and the automobile exception applied.

The second case was Autry v. State[v], in which, after a vehicle was lawfully stopped, an officer observed drug paraphernalia on the floorboard, fresh “track” marks on the arms of the driver and passenger, and physical manifestations from both the driver and passenger indicative of recent drug use.  The court of appeals held the totality of these circumstances provided probable cause to search the vehicle and the automobile exception applied.

As previously stated, in Lowe’s case, the trial court determined that there was probable cause to believe Lowe’s vehicle contained contraband because the marijuana was observed in the passenger’s wallet which was in Lowe’s vehicle, and the passenger and Lowe were seated next to each other.

Conversely, the court of appeals reasoned that, other than the fact that the driver and the passenger sat next to each other (in close proximity), there was no other evidence to link Lowe to the marijuana in the passenger’s wallet.  Specifically, the court of appeals stated

Other than proximity there is no evidence that linked Lowe to the marijuana in the passenger’s wallet. Nor are there any other circumstances which might under the totality of the circumstances, justify the search of Lowe’s car. The vehicle was stopped for failure to signal before changing lanes – Lowe and her passenger were not suspected of any crimes before that time, officers did not smell marijuana in the car, they did not observe any items inside the car indicative of contraband use, or observe furtive or suspicious movements between the two women. That her passenger had marijuana in her wallet and was riding in Lowe’s vehicle is not sufficient to establish probable cause for a warrantless search under the automobile exception.[vi]

As such, the court of appeals held that, under the totality of the circumstance, the facts of this case did not provide probable cause to believe illegal drugs were present in Lowe’s vehicle, and therefore the automobile exception did not authorize a search of her vehicle.

Search Incident to Arrest

The state also argued that the “search incident to arrest” exception to the search warrant requirement authorized a warrantless search of Lowe’s vehicle.  Regarding the search incident to arrest exception, the court of appeals stated

Among the exceptions to the warrant requirement is a search incident to lawful arrest.” Arizona v. Gant, 556 U. S. 332, 338 (II) (129 SCt 1710, 173 LE2d 485) (2009) As held in Gant, police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.[vii]

The state argued that observing the marijuana in the passenger’s possession provided probable cause to arrest her, and since the marijuana was in Lowe’s vehicle, that provided a “reason to believe the vehicle contain[ed] evidence of the offense of arrest.”  The state further argued that this “reasonable to believe” standard is a lower standard than probable cause.

The court of appeals then explained the lower standard of proof required under the search incident to arrest exception.  The court stated

Although in the context of a Terry stop, the [Supreme] Court in United States v. Arvizu, 534 U.S. 266, 273-274 (122 SCt 744, 151 LE2d 740) (2002) explained that when the standard is less than probable cause[,] in such cases, the Fourth Amendment is satisfied if the officer’s action is supported by reasonable suspicion to believe that criminal activity may be afoot [.] . . . [and] reviewing courts . . . must look at the “totality of the circumstances” of each case to see whether the detaining officer has a “particularized and objective basis” for suspecting legal wrongdoing. (Citations and punctuation omitted.) Id.[viii]

However, the court of appeals held that, even applying this lower standard of proof, “the State’s rationale for the search of the vehicle as a search incident to arrest exception fails” to meet the standard to justify the search.

Plain View

The court of appeals explained the “plain view doctrine” and stated

Under the plain view doctrine, “if [a] police [officer is] lawfully in a position from which [he can] view an object, if its incriminating character is immediately apparent, and if the officer[ ] ha[s] a lawful right of access to the object, [he] may seize it without a warrant.” Minnesota v. Dickerson, 508 U.S. 366, 374-375 (113 SCt 2130, 124 LE2d 334).[ix]

It is important to note that there are three requirements under the plain view doctrine.  First, the officer must be lawfully in the position from which he views the contraband.  In Lowe’s case, the officer was lawfully standing next to Lowe’s vehicle at the passenger door.  Second, the incriminating nature of the contraband must be immediately apparent.  In Lowe’s case, the marijuana was immediately apparent to be contraband.  Third, the officer must be able to lawfully access (seize) the contraband, either by an exception to the warrant requirement or by a warrant. In Lowe’s case, the officer’s observation of the marijuana in plain view in the passenger’s wallet would have authorized entry into the automobile to seize that marijuana; however, the court stated that, for the reasons discussed during “the automobile exception” and “search incident to arrest” sections of this case, that the search of Lowe’s entire vehicle was not justified under this exception.

As such, the court of appeals reversed the trial court’s denial of the motion to suppress.



[i] A19A109 (Ga. App. Decided October 23, 2019)

[ii] Id.

[iii] Id. (emphasis added)

[iv] 312 Ga. App. 122 (717 SE2d 705)(2011)

[v] 277 Ga. App. 305 (626 SE2d 528)(2006)

[vi] Lowe, A19A109

[vii] Id. (emphasis added)

[viii] Id. (emphasis added)

[ix] Id. (emphasis added)

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