State v. Handspike

240 Ga. 176 (1977)

240 S.E.2d 1

THE STATE v. HANDSPIKE.

32509.

Supreme Court of Georgia.

Argued September 12, 1977.

Decided October 20, 1977.

Rehearing Denied November 9, 1977.

*177 Hinson McAuliffe, Solicitor, Charles Hadaway, Assistant Solicitor, for appellant.

Isaacs, Comolli & Polonsky, John M. Comolli, for appellee.

UNDERCOFLER, Presiding Justice.

The question in this certiorari appeal is whether the Court of Appeals erred as a matter of law in determining that the search and seizure of less than an ounce of marijuana on the defendant's person was not a lawful search incident to an arrest. Under the facts recited in the Court of Appeals' opinion, the policeman had probable cause to arrest Handspike when he recognized the two girls in the car as juveniles, saw the wine and cups, and was told by the defendant that he had given the girls some wine. Code Ann. § 58-612. We hold that the officer had observed a crime being committed in his presence and had probable cause to arrest the defendant. He conducted his search incident to that arrest, and the marijuana was properly seized. Code Ann. § 27-207; Mitchell v. State, 136 Ga. App. 658 (222 SE2d 160) (1975). We therefore reverse the Court of Appeals opinion in State v. Handspike, 142 Ga. App. 104 (235 SE2d 568) (1977).

Judgment reversed. All the Justices concur, except Hall and Hill, JJ., who dissent. Marshall, J., disqualified.

HALL, Justice, dissenting.

I dissent from the grant of certiorari and the reversal of the judgments of the trial court and the Court of Appeals.

This is a routine search and seizure case and for this reason I find no reason for the grant of certiorari. If I had been a member of the Court of Appeals in this case, I would have voted with the dissenting judges of that court to reverse the ruling of the trial judge. However, as a member of the Supreme Court, I find no matter of great public concern or gravity and importance. Rule 36 (J) Rules of the Supreme Court of the State of Georgia, effective December 1, 1975. See my dissenting opinion in Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 451 (224 SE2d 25) (1976).