text:
    A91A1798.
    WESTEE v. THE STATE.
    (413 SE2d 266)
   McMurray, Presiding Judge.

Defendant was charged, via Georgia uniform traffic citation, with speeding in that he was detected by radar traveling 73 mph in a 55 mph zone. The case was tried in the Probate Court of Bartow County and defendant was found guilty of the offense charged. Defendant appealed to the superior court and the decision of the probate court was affirmed. This appeal followed. Held:

1. Defendant challenges the sufficiency of the evidence and argues that the State failed to present the necessary foundation to support the radar test results. We agree.

In Wiggins v. State, 249 Ga. 302, 304 (2) (290 SE2d 427), the Supreme Court enumerates five elements “the General Assembly has imposed upon the admissibility of evidence of speed gained by a state law enforcement officer through use of a radar speed detection device.” Id. at 304 (2). In the case sub judice, the State failed to present evidence of at least one of these five essential elements. Consequently, there is no competent evidence to prove that defendant is guilty, beyond a reasonable doubt, of traveling 73 mph in a 55 mph zone. See OCGA § 40-6-181 (b).

2. It is unnecessary to address the remaining enumerations of error.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.

Decided October 28, 1991

Reconsideration denied November 14, 1991.

Philip L. Westee, pro se.

Darrell E. Wilson, District Attorney, for appellee.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A0967.
    THE STATE v. WELCH.
    (413 SE2d 747)
   Andrews, Judge.

The defendant was convicted in the Recorder’s Court of Columbus of disregarding a stop sign, and appealed the local ordinance violation to the State Court of Columbus (formerly known as the City Court of Columbus) for a de novo trial pursuant to the local act authorizing such procedure. Ga. L. 1971, Extr. Sess., pp. 2007, 2061-2062, §§ 5-300, 5-301; pp. 2064-2065, §§ 5-600, 5-601, 5-602; Sanders v. City of Columbus, 140 Ga. App. 441, 442 (231 SE2d 473) (1976). After the defendant received notice that his case was on the June 1990 docket, he appeared ready for trial with his attorney, but was informed by the court that the case would be postponed and assigned to a subsequent trial docket. Thereafter, the case was placed on the August 1990 trial calendar. It appears to be undisputed that neither the defendant nor his attorney received notice that the case had been placed on the August 1990 trial calendar. Uniform Superior Court Rule 32.1, which applies to State Courts, requires that notice of the trial calendar be given to the defendant and his attorney not less than seven days before the trial date.

When the defendant failed to appear for the call of the case for trial in State Court, the pending appeal and the required appeal bond were marked dismissed on August 6, 1990, on the State Court docket. On December 6, 1990, at a subsequent term of court, the State Court trial judge granted the defendant’s November 14, 1990 motion to reinstate the charge and the appeal bond on grounds that he had not received notice of the August trial date. The State brings this direct appeal from the grant of reinstatement.

The trial court’s order reinstating the appeal in State Court is not one of the instances set out by statute from which the state may appeal. “Pursuant to OCGA § 5-7-1, the state’s authority to take a direct appeal [in a criminal case] is limited to ‘the following instances: (1) From an order, decision, or judgment setting aside or dismissing any indictment or accusation or any count thereof; (2) From an order, decision, or judgment arresting judgment of conviction upon legal grounds; (3) From an order, decision, or judgment sustaining a plea or motion in bar, when the defendant has not been put in jeopardy; or (4) From an order, decision, or judgment sustaining a motion to suppress evidence illegally seized in the case of motions made and ruled upon prior to the impaneling of a jury.’ ” State v. Eaves, 185 Ga. App. 740 (365 SE2d 535) (1988). The reinstatement was not an order arresting judgment of conviction, as characterized by the State, because it did not relate to a non-amendable defect on the face of the record. See Gunn v. State, 227 Ga. 786, 787 (183 SE2d 389) (1971) (arrest of judgment reaches defects on the face of record in criminal case comprised of indictment, plea, verdict and judgment); State v. Clark, 191 Ga. App. 708, 709 (382 SE2d 670) (1989). However, “[notwithstanding the provisions of OCGA § 5-7-1, the state may appeal directly an illegal judgment.” State v. Bilal, 192 Ga. App. 185 (384 SE2d 253) (1989); Potts v. State, 236 Ga. 230 (223 SE2d 120) (1976). Pretermitting the question of whether the court was authorized to act at a subsequent term of court, we find that reinstating the appeal in State Court after it had been dismissed had the effect in this case of illegally setting aside a final judgment of conviction in the Recorder’s Court.

The 1971 local legislation provides that a defendant found guilty in Recorder’s Court “shall have the right of appeal to the City Court [presently the State Court] from the Recorder’s Court in the same manner and under the same procedure as now prescribed by law for such appeals.” Ga. L. 1971, Extr. Sess., p. 2065, § 5-602. The procedure controlling the appeal from Recorder’s Court to the former City Court (the present State Court) provides that if the defendant fails to appear in State Court when the case is called for trial, the State Court may dismiss the appeal. Ga. L. 1952, p. 2156, § 3. “Upon the dismissal of such appeal, and by the fact of such dismissal of such appeal, the judgment of the recorder’s or mayor’s court against the defendant shall be reinstated and become final and the clerk of said [State Court] must, within 10 days thereafter, notify said recorder’s or mayor’s court, in writing, of said [State Court] dismissing such appeal; provided, however, that said [State Court] may, on motion of the defendant made within five days from the date of the order of dismissal, set aside such dismissal and reinstate such appeal on such terms as said [State Court] may prescribe, for good cause shown by the defendant for his absence or default.” (Emphasis supplied.) Ga. L. 1952, pp. 2156-2157, § 3. The record does not reflect whether written notice of the dismissal was sent to Recorder’s Court within ten days, although a notation on the charge at the time of dismissal directs that the case be sent back to Recorder’s Court. In the absence of a contrary indication in the record, we will presume that the State Court properly carried out its responsibility to notify the Recorder’s Court. Green v. Sun Trust Banks, 197 Ga. App. 804, 807 (399 SE2d 712) (1990). Under the applicable procedure, the judgment of Recorder’s Court had become final before the State Court entered its order some three months later at a subsequent term reinstating the appeal. Granting the motion to reinstate had the effect of setting aside the final judgment in Recorder’s Court. A motion to set aside or vacate,a judgment is inappropriate in a criminal case. Lacey v. State, 253 Ga. 711 (324 SE2d 471) (1985); Crane v. State, 249 Ga. 501 (292 SE2d 67) (1982). Accordingly, the State Court judge erred by granting the defendant’s motion to reinstate.

Decided November 14, 1991.

Andrew Prather II, Solicitor, Melvin E. Cooper, Assistant Solicitor, for appellant.

Jerry D. Sanders, Weyman E. Cannington, Jr., for appellee.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.

       Under appropriate circumstances, a defendant, even though not in physical custody, may challenge a misdemeanor traffic conviction by petition for habeas corpus. Earp v. Boylan, 260 Ga. 112 (390 SE2d 577) (1990); OCGA § 40-13-33.


author: Pope, Judge.

text:
    A91A1280.
    ACKERMAN SECURITY SYSTEMS, INC. v. DESIGN SECURITY SYSTEMS, INC.
    (412 SE2d 588)
   Pope, Judge.

Plaintiff/appellant Ackerman Security Systems, Inc., appeals from the trial court’s order granting defendant/appellee’s Design Security Systems, Inc. motion for partial summary judgment.

Both Ackerman and Design sell home security systems. Ackerman has used a white octagonal yard sign with blue lettering to advertise its services since January of 1980. The Georgia Secretary of State issued a service mark registration for Ackerman’s design in January of 1984. In 1986, Design discontinuéd use of its red and silver mailbox signs in favor of a white octagonal yard sign with black lettering. On February 17, 1987, Ackerman filed suit against Design alleging trademark infringement, deceptive trade practices, and unfair competition relating to Design’s use of a yard sign similar to the one used by Ackerman in advertising its services. The Georgia Secretary of State issued a service mark registration for Design’s yard sign in April of 1987.

Design filed its motion for partial summary judgment on February 1, 1990. The trial court found the yard signs to be similar in size and shape, although different with regard to color, company name, telephone number, and other marks, and granted Design’s motion with respect to Ackerman’s claims for trademark infringement and for all claims under Georgia’s Uniform Deceptive Trade Practices Act, OCGA § 10-1-371 et seq. In granting Design’s motion, the trial court held that a showing of actual consumer confusion was necessary to a finding of a likelihood of confusion, and that Ackerman had failed to offer sufficient evidence of actual confusion. The trial court also found that Ackerman failed to present evidence concerning damages. We now reverse.

1. The appropriate legal test for these claims is the “likelihood of confusion” test. To determine whether a likelihood of confusion exists as to the two yard signs, a number of elements must be examined including: the strength or distinctiveness of the trademark at issue; similarity or overall impression created by the designs; similarity of product; identity of retail outlets and purchasers; identity of advertising media used; defendant’s intent; and actual confusion. Amstar Corp. v. Domino’s Pizza, Inc., 615 F2d 252, 259 (5th Cir. 1980); Ambrit, Inc. v. Kraft, Inc., 812 F2d 1531, 1538 (11th Cir. 1986). The weight to be accorded to individual factors varies with the circumstances of the case. Ambrit, supra at 1538. In the case at hand, the trial court, relying on Pignons S.A. de Mecanique de Precision v. Polaroid Corp., 657 F2d 482 (1st Cir. 1981), incorrectly applied the likelihood of confusion test by requiring a showing of actual confusion. The court in Pignons held that “[e]vidence of actual confusion is not invariably necessary to prove a likelihood of confusion.” Pignons, supra at 490. Although evidence of actual confusion is obviously the best evidence of a likelihood of confusion, it is not necessary to a finding of likelihood of confusion. Amstar, supra at 263.

Design argues that a presumption against a likelihood of confusion is raised if the marks have coexisted in the marketplace over a significant period of time with no evidence of actual confusion. Pignons, supra at 490; Amstar, supra at 263. We agree. A presumption against a likelihood of confusion may be raised; however, the presumption may be rebutted by evidence of other factors tending to support a finding of a likelihood of confusion. Our review of the record reveals that Ackerman did show the existence of several other factors tending to support a finding of a likelihood of confusion. Thus, the presumption against a likelihood of confusion does not stand unrebutted in this case. Cf. Pignons, supra at 492.

Design cites Carling Brewing Co. v. Philip Morris Inc., 277 FSupp. 326 (N.D. Ga. 1967), for the proposition that Ackerman must show that its yard sign has become identified in the public mind with its product, or has acquired secondary meaning. Trademarks are classified according to distinctiveness as: generic, descriptive, suggestive, arbitrary or fanciful, or coined. The classification depends upon the logical correlation between the mark and the product. Freedom Savings & Loan Assn. v. Way, 757 F2d 1176, 1182 (11th Cir. 1985). The distinctiveness or strength of the mark increases so that generic marks are the weakest and coined marks are the strongest. The law provides the greatest protection to strong and distinctive marks. Id. Generally, a descriptive or generic mark must be shown to have secondary meaning to be afforded protection. Sun Banks of Fla. v. Sun Fed. Savings &c. Assn., 651 F2d 311, 315 (5th Cir. 1981). Secondary meaning exists when there is a connection in the consumer’s mind between the mark and the product’s producer. Ambrit, supra at 1536, n. 14.

Design itself argues in its brief in support of its motion for partial summary judgment that the use of an octagonal sign by a security company is suggestive of a “stop” sign to warn intruders to stop. We agree that the overall impression of Ackerman’s yard sign is suggestive, and suggestive marks do not require a showing of secondary meaning. Sun Banks, supra at 315. Thus, Design’s argument that Ackerman must show, as an element of its claim, that its product has become identified in the public mind with its mark is without merit.

The trial court’s grant of Design’s motion for partial summary judgment was error because a showing of actual confusion is not an indispensable element in stating a cause of action for trademark infringement, and secondary meaning is not required to show a likelihood of confusion for suggestive marks such as the yard sign in this case.

2. The trial court also granted partial summary judgment to Design on the ground that Ackerman failed to show damages. Design raised the issue at the hearing on the motion for partial summary judgment without first addressing the issue either in its motion or in its briefs. However, we need not reach the question of whether the issue was properly before the court because the trial court used the incorrect legal standard for a showing of damages in cases of this type. Actual damages need not be proven because Ackerman may obtain an accounting of profits under OCGA § 10-1-451. It is enough that Ackerman prove the infringer’s sales. The burden then shifts to Design to show expenses and other deductions. Wesco Mfg. v. Tropical Attractions of Palm Beach, 833 F2d 1484, 1487-1488 (11th Cir. 1987). Ackerman did prove approximate sales figures through the testimony of Design’s president. Exact sales figures need not be shown since Design is in the best position to ascertain such figures. Id. Thus, Design’s motion for partial summary judgment was improperly granted because the trial court used the wrong legal standard for a showing of damages in a trademark infringement case.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.

Decided November 14, 1991.

Arnall, Golden & Gregory, Stephen M. Doruee, Scott E. Taylor, for appellant.

Merritt & Tenney, David E. Spaltén, for appellee.


text:
    A91A1388.
    AMERICAN PEST CONTROL, INC. v. PRITCHETT et al.
    (412 SE2d 590)
   Pope, Judge.

Appellees/plaintiffs John W. Pritchett, Jr. and Carolyn C. Pritchett filed suit against the appellant/defendant American Pest Control, Inc., alleging that a wood infestation report prepared by defendant for the house that the plaintiffs purchased failed to reveal a prior infestation of wood destroying organisms, and that the plaintiffs based their decision to purchase the house in part on the erroneous report. The testimony at trial revealed that the subject house was infested with termites and beetles in 1978. At that time, the previous owner, Annie Bray, contracted with defendant to treat the house for those infestation problems.

In 1988, the plaintiffs contracted with Bray to purchase the house for $35,000. It is unknown whether the purchase price represented fair market value at the time of purchase because no attempt was made to ascertain the fair market value. The evidence showed that the plaintiffs had a personal relationship with Bray, and that Bray desired to sell her house to them and they desired to buy it.

Bray obtained the wood infestation report needed for the closing from defendant. The evidence shows that the report contained contradictory information. In the findings section of the report, it stated that there had been no previous infestation of wood destroying organisms. In the treatment section of the report, however, it stated that the house was treated for subterranean termites, powder post beetles and wood boring beetles in January 1978. There was also a graph attached to the wood infestation report illustrating the location of the previous damage. John Pritchett testified that when the report was presented to him at the closing to sign, the closing attorney commented that it was “good” for an approximately 90-year-old house not to have any previous termite damage. He testified that he did not review the report fully before signing because he was satisfied, after looking at the section of the report referred to by the closing attorney, that there was no problem with termites.

One month later, the plaintiffs began remodeling the house. During the remodeling they discovered extensive structural and other damage caused by infestations of wood destroying organisms. The only building contractor who testified at trial estimated that it would cost close to $97,000 to repair the damage caused by termites in the house.

At the close of plaintiffs’ case, defendant moved for a directed verdict on general and punitive damages. The trial court denied that motion. The jury returned a verdict in favor of plaintiffs in the amount of $91,721, but found that plaintiffs were not entitled to punitive damages. Defendant appeals from the judgment entered on that verdict.

1. Defendant contends that the trial court erred by denying its motion for directed verdict as to general damages. Defendant argues that there was no evidence that the termite damage of which plaintiffs complain was present at the time of its inspection. We have consistently held that “discovery of termite damage without proof it had been present at the time of an earlier inspection [does] not give rise to an action for negligent inspection.” Tabor v. Orkin Exterminating Co., 183 Ga. App. 807, 809 (360 SE2d 34) (1987); Butler v. Terminix Intl., 175 Ga. App. 816 (334 SE2d 865) (1985). In this case, however, plaintiff’s expert testified that the damage was present at the time of inspection because the damage ■ had been present for at least five years. Because there was evidence that the damage was present at the time of inspection, the trial court correctly found that whether the defendant negligently inspected the house presented a question for the jury. Accordingly, the trial court did not err in denying defendant’s motion for directed verdict.

2. Defendant further contends that the trial court erroneously charged the jury as to the law of damages in this case because the trial court refused to allow the jury to decide whether to make repairs was an absurd undertaking. “There are three measures of damage applicable to injury to improved realty. The general rule is that the cost of. restoration to the condition immediately prior to injury is the measure of damages. The exception to this general rule is that when the cost of restoration is unreasonable in light of its pre-injury market value, the diminution in market value of the land and improvements is the measure of damages. The exception to the exception is that if the improved realty has historical or other intrinsic worth to the owner which is not reflected in the fair market value of the improved realty, the measure of damages is the cost of repair, even though this may result in a recovery which far exceeds the fair market value of the improved realty prior to injury.” Cobb & Eldridge, Ga. Law of Damages, § 33-2 (3d ed. 1989); see Georgia-Carolina Brick &c. Co. v. Brown, 153 Ga. App. 747 (4) (266 SE2d 531) (1980); Buhl v. Sandy Springs Med. Ctr., 147 Ga. App. 176 (1) (248 SE2d 238) (1978); NEDA Constr. Co. v. Jenkins, 137 Ga. App. 344 (4) (223 SE2d 732) (1976); Mercer v. J. & M. Transp. Co., 103 Ga. App. 141 (2) (118 SE2d 716) (1961). Unlike our decisions in Buhl, supra, and Mercer, supra, under the facts of this case more than one measure of damages for injury to improved realty may be appropriate. Whether repairing the plaintiffs’ house was an absurd undertaking and whether the house had intrinsic value to the plaintiffs are both questions of fact that should have properly been submitted to the sound discretion of the jury. NEDA Constr. Co., supra at 350. The jury also should have been instructed about the different measures of damage for injury to improved realty in order that they could apply the appropriate measure based upon their factual findings. For this reason, we remand this case to the trial court for a new trial.

Decided November 14, 1991.

Goldner, Sommers, Scrudder & Bass, Stephen L. Goldner, Carroll G. Jester, Jr., for appellant.

McKee & Barge, Patrick W. McKee, Christopher J. Ramig, for appellees.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.


author: McMurray, Presiding Judge. Andrews, Judge,

text:
    A91A0847.
    THE STATE v. JACKSON et al.
    (412 SE2d 593)
   McMurray, Presiding Judge.

Defendants Clint Jackson and Tanya Faye Kendrick were jointly indicted for violating Georgia’s Controlled Substances Act, possessing more than one ounce of marijuana. Defendants pleaded not guilty and filed separate motions to suppress.

At the beginning of a hearing on the motions to suppress, the State argued that defendant Kendrick’s motion to suppress should be dismissed for lack of standing because the search was conducted in defendant Jackson’s automobile. The trial court reserved ruling on the motion to dismiss and heard from the State’s sole witness, Deputy Brian Crisp of the Clayton County Sheriff’s Department.

Deputy Crisp testified that he and another plainclothes law enforcement officer were on stake-out at a suspected drug source house at about 9:00 in the evening on January 31, 1990, when he observed two persons drive from the targeted house in a 1976 Oldsmobile Cutlass. Deputy Crisp testified that it was dark and that he could not identify the suspects because of the distance of surveillance, but that he discovered from a check of the license plate that the Cutlass was registered to defendant Jackson. Deputy Crisp testified that he followed the Oldsmobile in an unmarked patrol car and that his partner alerted a marked patrol car for assistance in the event the Cutlass was observed violating traffic laws.

Deputy Crisp testified that the suspects did not violate traffic laws, but that they drove to a house where Deputy Crisp had arrested Kendrick within the past year for selling marijuana. (Deputy Crisp remembered that Jackson was with Kendrick when he arrested her for selling marijuana.) The deputy testified that his partner radioed for a marked patrol car before the suspects arrived at Kendrick’s house, explaining that “[w]hen it became time to interview Mr. Jackson, [he] wanted some other presence there so that [Jackson] would be aware of the fact that there was police officers.”

Deputy Crisp testified that the Oldsmobile parked in the grass to the right of defendant Kendrick’s “single wide driveway . . .” and that he “pulled [the unmarked patrol car] up into the first part of the driveway behind [Jackson’s] vehicle just to the side, the left side, with the headlights on.” Deputy Crisp explained that “Mr. Jackson and Ms. Kendrick both had already exited their vehicle and [Ms.] Kendrick was walking back to [Deputy Crisp] as [he] was approaching [her].” Deputy Crisp testified that he identified himself as “a police officer[; that he] told him that [he] had been conducting a narcotics investigation and had been conducting surveillance on [a suspected drug source] residence, that [he] had observed him leave the residence and followed him to [defendant Kendrick’s house].” Deputy Crisp testified that he then “asked [Jackson] if he would allow him to search his person and his vehicle, and . . . advised [Jackson] that he did not have to let [Deputy Crisp], if he would, that would be fine.” Deputy Crisp testified that defendant Jackson consented to a search of his vehicle and that “under the passenger side of the bench seat [he] found a large plastic bag containing ... six smaller clear plastic bags of marijuana.”

Deputy Crisp testified that the marked patrol car arrived at the scene sometime after his encounter with defendants; that he and his partner were clothed in blue jeans on the night of the search; that no weapons were in view during the encounter with defendants and that neither officer “pull[ed]” their weapons during the encounter.

The trial court subsequently entered an order and concluded that defendant Kendrick had standing to challenge the search of Jackson’s vehicle because the search was conducted on Kendrick’s property. The trial court also granted the motions to suppress, holding that defendants were unlawfully detained under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889), and that the unlawful detention tainted Jackson’s consent to search, i.e., the consent to search was not freely and voluntarily given. This appeal followed. Held:

1. The State first contends the trial court erred in holding that defendant Kendrick had standing to challenge the search of Jackson’s vehicle because Jackson drove his car onto Kendrick’s property.

“[Property rights are neither the beginning nor the end of the fourth amendment inquiry. United States v. Salvucci, 448 U. S. 83, 92, 100 S.Ct. 2547, 2553, 65 L.Ed.2d 619, 628 (1980). Other factors enter into the calculus, no single integrant being determinative. The additional circumstances to be considered include whether the appellants enjoyed the right to exclude others from the property, or whether they had a possessory interest in the articles seized, and what precautions were taken to assure their privacy. See United States v. Haydel, 649 F.2d 1152, 1154-55 (5th Cir. 1981), modified, 664 F.2d 84, cert. denied, 455 U. S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 140 (1982).” United States v. Torres, 705 F2d 1287, 1294 (11th Cir. 1983).

In the case sub judice, there is no evidence that Kendrick exercised precautions to insure the privacy or safety of Jackson’s automobile, i.e., Kendrick did not request the law enforcement officers to leave her front yard; that Kendrick had a possessory interest in the searched vehicle or that she expected privacy in the passenger compartment of Jackson’s automobile. Autry v. State, 150 Ga. App. 584, 585 (1) (258 SE2d 268). On the contrary, any expectation of privacy Kendrick may have had in the passenger compartment of Jackson’s vehicle vanished when she voluntarily exited the vehicle and approached the law enforcement officers. These circumstances show that Kendrick, “who asserted neither a property nor a possessory interest in the automobile searched nor an interest in the property seized and who failed to show that [she] had any legitimate expectation of privacy in the . . . area under the seat of the car in which [she was] merely [a passenger, is] not entitled to challenge a search of [that area]. [Cits.]” Rakas v. Illinois, 439 U. S. 128, 129 (4) (99 SC 421, 58 LE2d 387). See Graham v. State, 171 Ga. App. 242, 245 (3), 246 (319 SE2d 484). Further, any holding which implies that Kendrick is a “defendant aggrieved by an unlawful search and seizure” under OCGA § 17-5-30 because Jackson drove his automobile into Kendrick’s front yard is erroneous.

“[I]t is the recognized relationship of the person with the property searched that gives rise to the protective device of suppression [under OCGA § 17-5-30]. See State v. Scott, 176 Ga. App. 887, 888 (1) (339 SE2d 276) (1985).” Sanders v. State, 181 Ga. App. 117 (1), 119 (351 SE2d 666). In the case sub judice, there is no evidence that Kendrick had a possessory interest or an expectation of privacy in Jackson’s vehicle and there is no evidence that the searching law enforcement officers were unlawfully in Kendrick’s yard. Consequently, there remains no basis under OCGA § 17-5-30 to support a claim that Kendrick had standing to challenge the search of Jackson’s vehicle. See Britt v. State, 186 Ga. App. 418, 419 (3), 420 (367 SE2d 298). The trial court erred in failing to dismiss defendant Kendrick’s motion to suppress for lack of standing.

2. Next, the State contends the trial court erred in holding that defendants were unlawfully detained without reasonable suspicion under Terry v. Ohio, supra, and that the unlawful detention tainted defendant Jackson’s consent to search.

“ ‘ “Supreme Court holdings sculpt out, at least' theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief ‘seizures’ that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause. (Cits.)” ’ McAdoo v. State, 164 Ga. App. 23, 26 (295 SE2d 114).” Alexander v. State, 166 Ga. App. 233 (2), 234 (303 SE2d 773). In the case sub judice, defendants were not unlawfully detained under Terry v. Ohio, supra; they were subjects of a permissible police and citizen encounter involving no coercion or detention.

“ ‘[A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. (Cits.) In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. . . .’ United States v. Mendenhall, [446 U. S. 544 (100 SC 1870, 64 LE2d 497, 509) (1980)].” McShan v. State, 155 Ga. App. 518 (1) (271 SE2d 659).

In the case sub judice, Deputy Crisp and his partner were in an unmarked patrol car when they pulled into Kendrick’s driveway; they were the only officers on the scene during the initial encounter with defendants; the officers were in plain clothing on the night of the search and the officers’ weapons were not drawn or in view during the encounter. The headlights of the unmarked patrol car fully illuminated the area of the encounter; defendants freely approached the officers after Deputy Crisp exited his patrol car; Deputy Crisp identified himself when he met defendants and the deputy explained why the officers were on the scene. Deputy Crisp then asked permission to search defendants’ bodies and Jackson’s vehicle, informing defendant Jackson that he was not required to consent to a search. At that point, neither Kendrick nor Jackson attempted to terminate the conversation with Deputy Crisp and they did not attempt to walk away from the deputy. Instead, defendants responded affirmatively to the requests to search. This evidence and the absence of evidence showing some physical touching of the person of the defendants, or the use of language or the tone of voice indicating that compliance with Deputy Crisp’s request might be compelled reveals, as a matter of law, that defendants were not “seized” (detained) within the meaning of the Fourth Amendment. However, this does not conclude our inquiry.

The “free to leave” analysis under Terry v. Ohio, supra, is not the sole basis for determining whether a defendant’s consent to search was freely and voluntarily given. “The more appropriate inquiry is whether a reasonable [person] would feel free to decline the officers’ request [to search] or otherwise terminate the encounter.” Florida v. Bostick,_U. S._(111 SC 2382, 115 LE2d 389) (1991). More specifically, “[t]he courts determine the voluntariness of . . . consent by examining the ‘totality of the circumstances,’ including the age of the accused, his education and intelligence, the length of detention, whether he was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of these factors. Schneckloth v. Bustamonte, 412 U. S. 218, 229 (93 SC 2041, 36 LE2d 854) (1973); id. at 80.” State v. McBride, 261 Ga. 60, 61 (1), 62 (401 SE2d 484).

In the case sub judice, there is no evidence of defendant Jackson’s age, the extent of his education or the degree of his intelligence. However, it is apparent that Jackson is an adult; that he owned and safely operated an automobile on the night of the encounter and that he was clear and responsive to Deputy Crisp’s requests to search. Further, there is no indication that defendants were detained by the law enforcement officers; that the encounter was drawn out or prolonged; that defendants were addressed in a harsh or threatening manner or that defendants were subjected to physical duress or threat of physical injury. “The only evidence in the record affirmatively shows that [Jackson] voluntarily agreed to allow the officer to [search his car].” State v. McBride, 261 Ga. 60, 61 (1), 62, supra. Consequently, the trial court erred in concluding that defendant Jackson’s consent to search was not freely and voluntarily given. It was error to grant defendant Jackson’s motion to suppress.

Judgment reversed.

Carley, P. J., Pope, Beasley and Cooper, JJ., and Judge Arnold Shulman concur. Sognier, C. J., Birdsong, P. J., and Andrews, J., dissent.

Andrews, Judge,

dissenting.

Because I agree with the trial court that there was no articulable suspicion sufficient to trigger an inquiry under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), much less probable cause, the initial entry onto the property of Kendrick was unconstitutional and the evidence seized should be suppressed.

On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

1. The State first contends that, since the automobile was searched pursuant to owner Jackson’s consent, Kendrick had no standing to object to it. This argument, however, overlooks the fact that the car was located on and the officers entered Kendrick’s property to make the initial contact.

Kendrick has standing to challenge the initial entry onto her property and the ensuing search of the automobile parked on her premises. See Britt v. State, 186 Ga. App. 418, 420 (3) (367 SE2d 298) (1988); Todd v. State, 184 Ga. App. 750, 751 (2) (362 SE2d 400) (1987); Sanders v. State, 181 Ga. App. 117, 119 (1) (351 SE2d 666) (1986). As acknowledged by the majority, ownership is not the key to determining standing, but whether the person who claims the protection of the Fourth Amendment has a legitimate expectation of privacy in the invaded place. Minnesota v. Olson, 495 U. S. 91 (110 SC 1684, 109 LE2d 85) (1990). Certainly a homeowner has the right to expect that the curtilage of her property will not be breached by the police save with a warrant or upon probable cause.

Therefore, I conclude that there was no error in the trial court’s denial of the oral motion to dismiss Kendrick’s motion to suppress.

2. The majority further concludes that no “seizure” of either defendant occurred which triggered the protection of the federal Fourth Amendment.

The trial court found that at the time Officer Crisp began questioning Kendrick and Jackson, they were no longer free to go and the resulting consent was therefore tainted.

A Terry stop must be premised upon a reasonable and founded suspicion. “ ‘(W)hat is a “reasonable articulable ground” for the detention may be less than probable cause to make an arrest or conduct a search, but must be more than mere caprice or arbitrary harassment. (Cit.)’ Allen v. State, 140 Ga. App. 828 (1) (232 SE2d 250) (1976)” West v. State, 194 Ga. App. 620, 621 (391 SE2d 673) (1990).

Here, the officers saw a car belonging to someone with whom they had no previous contact carrying two otherwise unidentified people leaving the home of one suspected of but never charged with selling drugs. The suspected person was not seen at the house while the unidentified persons were present, only a truck owned by him. No contact between the truck and car occupants was observed.

The officers then followed these unidentified persons to the address of Kendrick, although they did not know Kendrick was in the car when they pulled up the driveway and blocked in the car. When the occupants got out of the car, they were placed in the police car’s headlights and questioned. A marked police car was also present.

There was no anonymous tip, details of which were corroborated by the officers’ observation, as in Alabama v. White, _ U. S. _ (110 SC 2412, 110 LE2d 301) (1990). There was no identity of the car’s occupants at the time the initial approach to them was made, by encroaching on the property of Kendrick to block Jackson’s car. When they got out of the car, they were told what to do and they complied, submitting to the assertion of authority by the officers, including the presence of the marked car, and they were “seized” at that point. California v. Hodari D.,_U. S._ (111 SC 1547, 113 LE2d 690, 697) (1991); Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990); Jackson v. State, 191 Ga. App. 439, 441 (2) (382 SE2d 177) (1989). Therefore, I would affirm the trial court’s conclusion that Jackson’s consent to search was not voluntary. Radowick v. State, 145 Ga. App. 231, 238 (3) (244 SE2d 346) (1978) (physical precedent); see generally Florida v. Bostick, _ U. S. _ (111 SC 2382, 115 LE2d 389) (1991).

Decided November 15, 1991.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellant.

Warren A. Sellers, Horace W. Roberts, for appellees.

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

       Deputy Crisp testified that the stake-out was based on neighborhood complaints regarding suspicious activities at the targeted house and on information from Kendrick that illegal drugs could be pruchased at the targeted house. Deputy Crisp also indicated that he was familiar with Kendrick because he had “been to [her] residence previously to effect an arrest warrant on Ms. Kendrick for the sale of marijuana to [another law enforcement officer].”

       “The first important attempt to redefine the Fourth Amendment away from the principles of property law occurred in Justice Brandéis’ dissenting opinion in Olmstead v. United States[, 277 U. S. 438 (48 SC 564, 72 SE 944),] in 1928. He contended that ‘every unjustifiable intrusion by the Government upon the private life of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.’ Therefore, Justice Brandéis defined the interest protected by the Fourth Amendment in terms of the ‘right to privacy’ of the individual, and not strictly in terms of property interest. These views were . . . adopted by the United States Supreme Court in 1967 in Katz v. United States[, 389 U. S. 347 (88 SC 507, 19 LE2d 576)].” Green, Ga. Law of Evidence, p. 13, § 8 (3d ed.).

       The trial court did not question the credibility of the sole witness at the motion to suppress hearing, but relied on Deputy Crisp’s undisputed testimony to support its findings of fact and conclusion that defendant Jackson’s consent was not free and voluntary. Consequently, we review the trial court’s application of the law to the facts de novo, “ ‘ “ex-amin[ing] the entire record and mak[ing] an independent determination of the ultimate issue of voluntariness.” ’ Beckwith v. United States, 425 U. S. 341, 348, 96 S.Ct. 1612, 1617, 48 L.Ed.2d 1 (1976) (quoting Davis v. North Carolina, 384 U. S. 737, 741-742, 86 S. Ct. 1761, 1764, 16 L.Ed.2d 895 (1966)).” United States v. Garcia, 890 F2d 355, 358 (11th Cir.). See State v. Davis, 261 Ga. 225, 226, fn.1 (404 SE2d 100), where the Supreme Court recognizes that the standard of appellate review may be different in circumstances where the trial court’s findings of voluntariness result from an application of the law to undisputed facts. See special concurrence in State v. McBride, 261 Ga. 60, 65 (401 SE2d 484), where Justice Hunt points out that decisions of voluntariness involve mixed questions of law and fact and suggests that appellate courts strive to segregate factual components from legal conclusions in such cases and apply appropriate standards of appellate review so as to eliminate confusion.

       No argument is made regarding the additional state constitutional argument made by Kendrick, nor did the trial court’s order rely upon any authority except that dealing with the federal Fourth Amendment. Therefore, we reach no conclusions as to any additional protection afforded by the state provision. Sanders, supra at 119, fn. 1.


author: Beasley, Judge.

text:
    A91A1207.
    MERRIMAN v. THE STATE.
    (412 SE2d 598)
   Beasley, Judge.

Defendant appeals his conviction of trafficking in marijuana, OCGA § 16-13-31 (c). He enumerates as error the denial of his motion to suppress evidence which he contends was illegally obtained, OCGA § 17-5-30, and the failure to fully grant his motion for independent examination and analysis of alleged contraband substances.

1. “ ‘On appeal of the denial of a motion to suppress!,) the evidence is to be construed most favorably to the upholding of the findings and judgment made.’ . . . The trial court’s findings must be adopted unless determined to be clearly erroneous.” Dennis v. State, 166 Ga. App. 715, 716 (305 SE2d 443) (1983). See also Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974); State v. Medders, 153 Ga. App. 680, 681 (266 SE2d 331) (1980). The evidence presented to the trial court at the hearing, supportive of the facts as found by the court, showed the following.

Based upon an anonymous telephone tip that marijuana was growing in defendant’s backyard, two deputy sheriffs and a GBI agent proceeded to his residence. There they found the yard enclosed partly by a high brick wall and partly by a wooden fence about eight feet high. Unable to view anything from the portion protected by the brick wall, the three officers moved through a heavily wooded area in the back to the wood fence. There they looked through cracks in the fence into the backyard and saw marijuana plants growing. The officers began to return to their automobile through the woods when one of them saw a light-haired person above the fence, who ducked down as he glanced. They then ran.

The officers conferred among themselves and with their superior by phone. They determined that, because they had been seen by a person at the house, evidence inside the house such as more marijuana, money, records, and ledgers, might be destroyed before they could obtain a search warrant. After calling for and obtaining backup, they proceeded to the house. Defendant’s wife, who looked like the person the officers had seen earlier, answered the door knock and, in response to a question, said she lived there. When she indicated she needed to quiet her dogs, they followed her into the living room and arrested her on a charge of manufacturing marijuana. Upon entry, one of the officers smelled what he perceived to be burning marijuana. Once inside they observed a burning marijuana cigarette and green leafy material in a plastic bag. After the arrest, which was occasioned by the backyard marijuana, the officers conducted a search of the house, during which time defendant’s wife signed a consent form. They later obtained a search warrant.

When defendant arrived home, he was arrested for manufacturing marijuana, and subsequently charged with trafficking in it. He contends that all the marijuana found in his house as well as the growing plants in his yard was illegally seized in violation of the Fourth Amendment of the United States Constitution and the Georgia Constitution and laws.

We consider only whether the arrest and search were legal under federal constitutional law because defendant has not otherwise separately articulated state law on appeal. An independent issue has not been adequately presented. Bonds v. State, 188 Ga. App. 135 (372 SE2d 448) (1988). Going back a bit, defendant in his motion only referred to the state constitution in general, and the trial court did not rule on its application. In order to obtain review, appellant must raise the ground below and obtain a ruling on it. Hoover v. State, 198 Ga. App. 481, 482 (3) (402 SE2d 92) (1991); Bailey v. State, 198 Ga. App. 632 (1) (402 SE2d 363) (1991).

“[A] police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant’s Fourth Amendment rights in the process of establishing his vantage point.” State v. Aultman, 160 Ga. App. 550, 551 (287 SE2d 580) (1981). Accord State v. Zackery, 193 Ga. App. 319 (387 SE2d 606) (1989).

The evidence is unclear exactly where the boundary of defendant’s land was, in relation to where the officers were when they peered through the wooden fence. Defendant and his wife testified that the fence was approximately one-and-one-half to two feet inside the boundary line but there was no documentary or disinterested evidence to confirm their self-serving statements that their property extended beyond the fence. The trial court found that the point of the officers’ observation “was not precisely established by the evidence.” The court found that they were either on or within one foot of the line separating defendant’s property from that of adjoining land. There was no finding that the officers had transgressed onto defendant’s property. Credibility and weight are matters for the factfinder, who could reject the occupants’ testimony as to property line. Woodruff v. State, 233 Ga. 840, 844 (3) (213 SE2d 689) (1975); Ward v. State, 193 Ga. App. 137, 138 (1) (387 SE2d 150) (1989).

“Plain view” as used by the Georgia courts should not be confused with the “plain view doctrine” as described in Coolidge v. New Hampshire, 403 U. S. 443, 464 (91 SC 2022, 29 LE2d 564) (1971). “Open view” is a better term to describe the non-intrusional visual observation from a vantage point outside a constitutionally protected area. The “plain view doctrine” of Coolidge “refers exclusively to the legal justification — the reasonableness — for the seizure of evidence which has not been particularly described in a warrant and which is inadvertently spotted in the course of a constitutional search already in progress or in the course of an otherwise justifiable intrusion into a constitutionally protected area.” Brown v. State, 292 A2d 762, 775 (Md. 1972). It involves first whether there was a valid intrusion into a constitutionally protected area; then whether the discovery was inadvertent. Because an “open view” encompasses that which is readily observable or clearly visible from an observation point which is not within a constitutionally protected confine, this sighting of evidence needs no further justification for a seizure. Brown, supra at 774. Contrary to appellant’s assertion, “plain view” does not require inadvertence. Horton v. California, _U. S. _ (110 SC 2301, 110 LE2d 112) (1990).

One issue was whether the observation occurred from a constitutionally protected area. The trial court’s finding of fact that the officers did not trespass upon defendant’s property was not clearly erroneous. Moreover, even if they were on or within the defendant’s property line by the short distance claimed, it would constitute a “valid intrusion” under the circumstances. These included the fact that it appeared that the property beyond the fence belonged to the neighboring lot and the fact that defendant had not protected it from view in any manner whatsoever. As to “valid intrusion,” see State v. Zackery, supra, and cases cited therein. Compare Bunn v. State, 153 Ga. App. 270 (265 SE2d 88) (1980).

The other issue with regard to the observation of the marijuana is whether deliberately looking for it, and seeing it, through narrow gaps between the fence boards was constitutionally permissible. “The touchstone of Fourth Amendment analysis is whether a person has a ‘constitutionally protected reasonable expectation of privacy.’ Katz v. United States, 389 U. S. 347, 360 (1967) (Harlan, J., concurring). Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable? See Smith v. Maryland, 442 U. S. 735, 740 (1979).” California v. Ciraolo, 476 U. S. 207, 211 (106 SC 1809, 90 LE2d 210) (1986).

As to the first part of the inquiry, placing an eight-foot high slat fence around one’s backyard would normally manifest a subjective expectation of privacy and did in this case. But, this did not cover all observations from any vantage point such as from the air or from someone perched in a tree looking over the fence. Defendant’s expectation of privacy from observation through openings in the fence would not be a reasonable expectation. As restated in Ciraolo, supra at 212: “ ‘(t)he test of legitimacy is not whether the individual chooses to conceal assertedly “private” activity,’ but instead ‘whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.’ [Cit.]” Applying the reasoning followed in Ciraolo, the observation into Merriman’s curtilage, which did not constitute any physical tampering with the fence or intrusion into or beyond it but merely a visual exercise, did not violate defendant’s right to a reasonable expectation of privacy.

We take counsel in this analysis from the following cases. In State v. Pontier, 518 P2d 969, 974 (9-11) (Idaho 1974), deliberate police observation of marijuana plants over a waist-high picket fence was deemed constitutionally permissible. The court held “that objects falling in plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence.” In United States v. McMillon, 350 FSupp. 593 (D.D.C. 1972), officers standing on their tiptoes or a box looked from a neighboring porch over a six-foot high stake fence overgrown with vines and bushes. As found in Merriman’s case, the officers at no time during the course of the observation physically intruded onto the defendant’s yard or premises. The court concluded that no Fourth Amendment violation occurred. George v. State, 509 SW2d 347 (Ct. Crim. App. Tx. 1974), permitted admission of evidence obtained by the police in looking through cracks and knotholes in an eight-foot high privacy fence located 18 inches inside defendant’s property line. See Cox v. State, 160 Ga. App. 199 (286 SE2d 482) (1981), for a case involving non-intrusive aural surveillance by the officers placing their ears close to an apartment door. The law does not require the conclusion that defendant’s Fourth Amendment rights were infringed by the positioning of the officers in order to observe the marijuana.

The observations by the officers gave them probable cause to believe a felony had been committed by the occupants of the property. The procedure then would be to obtain search and arrest warrants. This is especially true as to the marijuana field because two of the officers could have remained behind and determined if any effort was made to destroy or dispose of it, while the third officer obtained a warrant. However, because one of the deputies had seen someone watching them from the house, they determined that, evidence contained in the house might be destroyed or concealed. The evidence was in dispute as to whether the person was or physically could have been seen. The trial court’s finding in this regard is not clearly erroneous. Dennis, supra; Johnson, supra; Medders, supra. On this basis, they arrested defendant’s wife when she said she lived there and they conducted a warrantless search of the house incident thereto.

An arrest or search which takes place in defendant’s home without a warrant and without either exigent circumstances or his consent violates the Fourth Amendment. Thompson V. State, 248 Ga. 343 (1) (285 SE2d 685) (1981); Steagald v. United States, 451 U. S. 204, 211 (101 SC 1642, 68 LE2d 38) (1981); Payton v. New York, 445 U. S. 573, 585 (100 SC 1371, 63 LE2d 639) (1980). According to the testimony, any consent to a search occurred after the initial arrest and search. Without consent, the critical issue is whether there were exigent circumstances which would justify the warrantless arrest and search.

In exigent circumstances police officers are authorized, pursuant to a lawful arrest, to enter premises and conduct a search. State v. Camp, 175 Ga. App. 591, 594 (2) (333 SE2d 896) (1985). The court determined that a warrantless arrest was justified because under the circumstances, there were facts within their knowledge such as to warrant a prudent man to believe that the wife had committed or was committing an offense. See Vaughn v. State, 247 Ga. 136 (274 SE2d 479) (1981), applying Beck v. Ohio, 379 U. S. 89 (85 SC 223, 13 LE2d 142) (1964). The officers had probable cause to arrest, and exigent circumstances authorized it without a warrant.

The trial court also concluded that the officers reasonably believed that they were confronted with an emergency, in which the delay necessary to obtain search warrants threatened the destruction of the evidence. See Schmerber v. California, 384 U. S. 757, 770 (86 SC 1826, 16 LE2d 908) (1966).

After the lawful arrest, the search of the house for the purpose of securing it and preventing the destruction of evidence was permissible. Strickland v. State, 175 Ga. App. 224, 225 (1) (333 SE2d 140) (1985); Camp, supra at 594. Likewise the seizure of the contraband found in plain view as a result was authorized. State v. Lyons, 167 Ga. App. 747, 749 (307 SE2d 285) (1983); Horton, supra. Cf. State v. Scott, 176 Ga. App. 887, 890 (339 SE2d 276) (1985).

Decided November 15, 1991.

P. Samuel Huff, for appellant.

Garry T. Moss, District Attorney, for appellee.

The evidence authorized the factual findings of the trial court, Hanvey v. State, 186 Ga. App. 690, 691 (2) (368 SE2d 357) (1988), and it did not err in its application of federal constitutional law to those facts.

2. The second inquiry focuses on the marijuana itself. Defendant sought to have an independent examination of the alleged contraband under Sabel v. State, 248 Ga. 10, 16 (6) (282 SE2d 61) (1981), and Patterson v. State, 238 Ga. 204, 206 (232 SE2d 233) (1977). The trial court by order permitted two plants to be selected by the State and two by defendant to be sent to the State Crime Laboratory, and allowed defendant’s expert to be present during the weighing and removal of the leaves from the marijuana plants and to independently analyze the marijuana at the lab.

Defendant contends that the order was error because the State failed to show the total weight of the marijuana was at least 50 pounds. See OCGA § 16-13-31 (c) (1). There was evidence that the marijuana weighed 400 pounds. Fifty pounds is the minimum weight for this offense. OCGA § 16-13-31 (c).

Judgment affirmed.

Judge Arnold Shulman concurs. Parley, P. J., concurs in Division 2 and in the judgment.


text:
    A91A1336.
    BRACK ROWE CHEVROLET COMPANY v. WALLS et al.
    (412 SE2d 603)
   Andrews, Judge.

Brack Rowe Chevrolet Company (Rowe Chevrolet) brought this action against Walls to collect a deficiency judgment after selling a repossessed automobile. Walls denied that she owed the deficiency, and contended in a third party complaint that Allen was responsible for any judgment rendered against her. A jury found in favor of Walls and against Rowe Chevrolet on the deficiency action. Judgment was entered on the verdict in favor of Walls, and dismissing the third party complaint against Allen. Rowe Chevrolet appeals claiming that the trial court erred by failing to grant its motion for a directed verdict against Walls, and by giving an erroneous charge to the jury on novation.

In October 1984, Rowe Chevrolet sold a car to Walls and retained a security interest in the car under the terms of a retail installment contract between the parties. Rowe Chevrolet immediately assigned its rights under the contract with recourse to General Motors Credit Corporation (GMAC), and GMAC paid the balance due on the contract. In March 1986, with the approval of GMAC, Walls sold the car to Allen. Allen paid Walls $500 cash with the balance of the purchase price payable under the terms of a new retail installment contract which also created a security interest in the car. Walls immediately assigned the contract and security interest, with recourse, to GMAC. In effect, GMAC simply refinanced the sale of the car to Allen. In April 1986, Rowe Chevrolet executed a guaranty agreement by which it guaranteed to GMAC full payment of the contract obligation of Allen. Subsequently, in October 1986, Allen defaulted on the contract and GMAC repossessed the car. In October 1986, either pursuant to its guaranty obligation to GMAC, or in anticipation of being held to it, Rowe Chevrolet paid GMAC the balance owed by Allen under the contract, and received the repossessed car and an assignment of GMAC’s rights under the contract. Thereafter, Rowe Chevrolet sold the car in a private sale, deducted the sales proceeds from the amount owed by Allen under the contract, and instead of suing Allen for the deficiency, sued Walls directly under the guaranty obligations she assumed when she assigned the Allen contract with recourse.

1. Rowe Chevrolet claims the trial court’s charge on novation was erroneous because it required the jury to find in favor of Walls on the deficiency claim if they found that the second contract for the sale of the car, in which Allen was the buyer, constituted a novation which extinguished the first sales contract in which Walls was the buyer. It does not appear from the evidence that Rowe Chevrolet claimed Walls’ liability stemmed from the first contract, but rather the claim was that liability stemmed from her status under the second contract. None of the parties to the action requested a charge on novation. Nevertheless, the court accurately charged the jury on the elements of novation under OCGA § 13-4-5, and then continued to instruct the jury as follows: “In other words, if you believe and find by a preponderance of the evidence that this second contract amounted to a novation of the first contract, the effect of that would be to discharge Ms. Helen Walls from any obligation to the plaintiff in this case. And you should find in her favor. On the other hand, if you find it was not, you would also, of course, go ahead and consider whether or not the sale met all the requirements as far as the deficiency, whether or not the deficiency resulted from a valid sale. Now also if you found that the second contract amounted to a novation of the first contract, as I stated, you would have to find in favor of the defendant. In that event you would proceed no further against the third defendant. And you should also find in favor of the third party defendant.”

This charge was reversible error. Even if the jury concluded that the second contract was a novation of the first, this would not preclude a determination that Walls was liable for the deficiency. The second contract was assigned by Walls to GMAC with recourse and provided that Walls “unconditionally guaranteed payment on demand of the unpaid balance [owed by Allen] on this contract and all losses and expenses incurred by GMAC in the event of a default in payment of any installment.” There is no provision indicating that Allen must be sued first before Walls will be liable under the guaranty. By assignment from GMAC, Rowe Chevrolet acquired not only the right to proceed against Allen to collect a deficiency, but also the right to hold Walls directly responsible for any such deficiency pursuant to her guaranty. Barbree v. Allis-Chalmers Corp., 250 Ga. 409, 411-412 (297 SE2d 465) (1982). Although Rowe Chevrolet did not specifically allege in its complaint that it was pursuing Walls under her guaranty of the Allen contract, the allegations are sufficient to encompass such a claim against Walls.

2. The trial court did not err by denying Rowe Chevrolet’s motion for a directed verdict.

Walls does not claim she was not notified of the sale. Reeves v. Habersham Bank, 254 Ga. 615, 620-622 (331 SE2d 589) (1985) (guarantor is considered debtor and must be given notice of the sale). Nor did she or Allen present any evidence to rebut Rowe Chevrolet’s evidence that the sale was conducted in a commercially reasonable manner. However, though Walls did not raise a notice issue as to herself, as a guarantor of Allen’s obligation Walls is entitled to assert all defenses available to Allen as the principal. OCGA § 10-7-2. “Thus, in the absence of waiver or estoppel we see no reason why a guarantor may not assert the ‘commercially reasonable’ defense which would be available to his principal, the debtor, under [OCGA § 11-9-504 (3)] in an action by the secured party against the guarantor for a deficiency judgment.” Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 436-437 (280 SE2d 842) (1981). The fact that Walls received proper notice does not estop her from benefiting from any notice defense asserted by Allen since the issue here is not whether Walls was notified, but whether, as guarantor, she may be discharged because her principal has a defense to the deficiency claim.

The evidence reveals that although notice of the sale was sent by GMAC to Allen by certified mail to his address shown on the contract within ten days after the repossession, he did not receive it. Under OCGA § 10-1-36 there is no requirement that the required notice be received, but only that it be sent within ten days of repossession by registered or certified mail to the address shown on the contract or later designated by the buyer. Allen testified that he had moved from the address listed in the contract, and that he provided GMAC with the new address. A GMAC representative testified that the address on the contract was the last address provided. Accordingly, an issue was created as to whether Allen received proper notice under OCGA § 10-1-36. Unlike the rebuttable presumption created by a creditor’s lack of compliance with the notice provisions of OCGA § 11-9-504 (3) (Emmons v. Burkett, 256 Ga. 855 (353 SE2d 908) (1987)), failure to comply with the notice provisions of OCGA § 10-1-36 is an absolute bar to recovery. Bryant Intl. v. Crane, 188 Ga. App. 736 (374 SE2d 228) (1988). Accordingly, material issues exist precluding a directed verdict.

Decided November 15, 1991.

McDonald & Haggard, James E. McDonald, Jr., for appellant.

Walden G. Housman, Jr., N. Lee Presson, for appellees.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A91A1246.
    MILLER et al. v. JENKINS.
    (412 SE2d 555)
   Andrews, Judge.

The Millers filed a complaint for the wrongful death of their 23-year-old son arising out of his automobile accident with Jenkins. The case was tried by a jury which returned a verdict in favor of the Millers for $108,868. The Millers appeal and seek a retrial on the issue of damages.

1. In their first six enumerations of error, the Millers claim that the trial court failed to properly instruct the jury regarding the measure of damages in a wrongful death suit. As a general enumeration, the Millers contend that the trial court failed to adequately charge the jury regarding the intangible value of a decedent’s life in a wrongful death suit.

The trial court charged the jury with the superior court judge’s pattern charge on the value of a decedent’s life in a wrongful death suit. The language of that instruction parallels OCGA § 51-4-1 and states: “The full value of the life of the deceased, as shown by the evidence, is the full value of the life of the deceased without deduction for necessary or other personal expenses of the deceased if he had lived. You should consider the gross sum deceased would have earned to the end of his life, had he not been killed, reduced to its present cash value in determining the amount of the full value of the life of the deceased. However, the full value of the life of the deceased is not limited to the amount of money he could have or would have earned had he not been killed.” The trial court also charged the jury regarding the mortality table with which the jury was provided. Both the Millers’ general and specific enumerations of error argue that the trial court erred in failing to instruct the jury with the non-economic specific factors which comprise the “full value of the life of the deceased.”

The “full value of the life of the decedent” consists of two elements, the economic value of the deceased’s normal life expectancy and the intangible element incapable of exact proof. See Cobb and Eldridge, Georgia Law of Damages, p. 714 § 37-2; see generally City of Macon v. Smith, 117 Ga. App. 363 (8) (160 SE2d 622) (1968). Therefore, “[i]n arriving at the value of the life of the decedent ‘the jury is not bound to find that lifetime earnings reduced to present value is the full value of the life of the decedent, but such is an aid only to the jury in making such determination.’ ” (Citations omitted.) A-1 Bonding Svc. v. Hunter, 125 Ga. App. 173, 180 (5) (186 SE2d 566) (1971). The intangible factors which supplement the economic value to comprise the “full value of the decedent’s life” elude precise definition, particularly in situations such as the instant one in which the decedent was employed and thus a basis exists for determining the loss. Compare Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 886 (15) (311 SE2d 193) (1983). The instructions here, combined with the mortality table and instruction given regarding its use, adequately and fully charged the jury regarding the measure of damages in this case. The failure to charge the jury with more particularity concerning the intangible factors was not harmful error. Bulloch County Hosp. Auth. v. Fowler, 124 Ga. App. 242 (3) (183 SE2d 586) (1971).

In addition to their general claims, the Millers claim that the trial court erred by failing to charge the jury as they requested in their requests numbered 28, 29, 31 and 33. The Millers’ argument regarding charge number 33 is without merit since the charge was not included in the record and there is nothing presented for review. Green v. Gaydon, 174 Ga. App. 796, 797 (2) (331 SE2d 106) (1985).

The Millers’ contentions regarding the failure to give the other requested charges are also without merit. “It is not error to refuse to give a requested charge when the jury is accurately and fully charged on the relevant law for the issue covered by the requested charge.” Brooks v. Coliseum Park Hosp., 187 Ga. App. 29, 34 (369 SE2d 319) (1988).

2. In another enumeration of error, the Millers, citing Gusky v. Candler Gen. Hosp., 192 Ga. App. 521 (385 SE2d 698) (1989), claim that the trial court erred in allowing evidence and argument concerning “investment strategy” in violation of OCGA § 51-12-13. After reviewing the record, we find no merit in this argument since there was no reference to “investment strategy” as prohibited by Gusky. Furthermore, even if the improper argument was made, “ ‘ “appellants] failed to carry the burden of proving that the admission of the evidence was unduly prejudicial to [their] rights.” ’ ” Kelley v. Foster, 192 Ga. App. 95 (383 SE2d 646) (1989).

Decided October 30, 1991

Reconsideration denied November 18, 1991

Doremus, Jones & Smith, Bobby T. Jones, Julian B. Smith, Jr., for appellants.

Fulcher, Hagler, Reed, Hanks & Harper, James W. Purcell, David P. Dekle, for appellee.

3. Finally, the Millers claim that'the trial court erred in permitting Jenkins’ counsel to argue that the absence of intentional misconduct was a factor to be considered in their award. We find no harmful error and this enumeration is without merit.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A91A1392.
    LEE v. THE STATE.
    (412 SE2d 563)
   Beasley, Judge.

At a bench trial, appellant was found guilty of violating OCGA § 3-3-23 (a) (2), which makes it a crime for any “person under 21 years of age [to] purchase or knowingly possess any alcoholic beverage.” The Uniform Traffic Citation, which was the method used for charging defendant, accused him of “under age consumption/alcohol.” He pursues the general grounds, see Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

The evidence favoring the conviction showed that at approximately 1:15 a.m., a policeman arrived at an apartment complex in a high-crime area because of complaints of a loud party. When he arrived, the party had ended, so he routinely drove through the apartment complex to check for people loitering or prowling because there were a lot of auto “break-ins” there. The officer saw appellant and a companion ducking and hiding between two vehicles. He approached and asked what they were doing. One stated that they were waiting for the officer to leave in order to go back to an apartment. The officer, who was standing approximately three to four feet away, could smell alcohol on them. He asked for identification. When he saw they were underage (appellant’s age was given as 19), he asked if they had been drinking. Appellant indicated he had drunk two beers. The officer issued a citation to appellant for under-age consumption of alcohol and then released him and his companion.

Appellant testified that with the consent of his parents (who did not testify), he drank two beers in their home at approximately 6:30 p.m. the evening before.

1. Appellant contends that the trial court erred in denying his motion for directed verdict of acquittal and in finding him guilty of the offense charged, in that the evidence was insufficient to support the verdict. There is no verdict in a bench trial. Kennery v. Mosteller, 133 Ga. App. 879, 880 (212 SE2d 447) (1975). The issue, then, is simply whether the evidence met the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

OCGA § 3-3-23 (c) provides: “[t]he prohibitions contained in paragraphs (1), (2), and (4) of subsection (a) of this Code section shall not apply with respect to the possession of alcoholic beverages for consumption by a person under 21 years of age when the parent or guardian of the person under 21 years of age gives the alcoholic beverage to the person and when possession is in the home of the parent or guardian and such parent or guardian is present.”

Appellant argues that this case is based on circumstantial evidence, and, given his testimony that he consumed the two beers under circumstances that did not render it unlawful, the evidence does not exclude every reasonable hypothesis save that of guilt. OCGA § 24-4-6.

Whether the evidence does or does not do so is for the trier of fact, unless it can be said that the verdict is insupportable as a matter of law. See Brewer v. State, 156 Ga. App. 468 (2) (274 SE2d 817) (1980) . The defendant’s explanation, being evidence, is taken into consideration. See Bogan v. State, 158 Ga. App. 1, 2 (279 SE2d 229) (1981) . But after the defendant has been found guilty, the evidence is viewed in the light most favorable to the determination that the defendant is guilty. Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986).

The conviction in this case is not insupportable as a matter of law. Based on the circumstances, the factfinder could have rejected the defendant’s version of when and where the beer had been consumed. It was a reasonable inference, which the court expressly drew, that the odor of alcohol on breath did not emanate from beer drunk over six hours earlier but rather from a more recent consumption. As to consumption constituting possession, see Hadaway v. State, 190 Ga. App. 5, 6 (2) (378 SE2d 127) (1989). The evidence is sufficient to have authorized a rational trier of fact in finding the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, supra.

2. Appellant also contends that the trial court erred in denying his motion to suppress the testimony of the police officer concerning appellant’s responses to the officer’s on-the-scene questioning, because appellant was not informed of his Miranda rights beforehand.

Decided November 1, 1991

Reconsideration denied November 18, 1991

Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), recognizes that although a police officer may not have probable cause to arrest someone, if there is a reasonable suspicion of criminal wrongdoing, based upon specific and articulable facts from which it can be determined that the action of the police officer is not arbitrary or harassing, the police officer may make a brief, investigatory detention of the individual in order to determine his identity or to maintain the status quo momentarily while obtaining more information. Smith v. State, 165 Ga. App. 333 (1) (299 SE2d 891) (1983); Reese v. State, 145 Ga. App. 453 (1) (243 SE2d 650) (1978). “It is clear that in cases where there are some reasonable articulable grounds for suspicion, the state’s interest in the maintenance of community peace and security outweigh the momentary inconvenience and indignity of investigatory detention.” Brisbane v. State, 233 Ga. 339, 343 (211 SE2d 294) (1974). One who is under investigative detention pursuant to Terry v. Ohio, supra, is not in custody under Miranda. Bailey v. State, 153 Ga. App. 178, 180 (1) (264 SE2d 710) (1980).

The police officer in this case, having observed the furtive movements of the two young men among cars in a high car-burglary residential area at 1:15 in the morning, where a loud party which the police received a complaint about had recently broken up, was authorized to approach and question them. See Brisbane, supra. Hadaway v. State, supra at 5 (1). See also Darracott v. State, 191 Ga. App. 675 (1) (382 SE2d 664) (1989).

After detecting the odor of alcohol, the officer could inquire whether appellant had been drinking, in order to determine “ ‘the nature of the situation confronting the police.’ ” Shy v. State, 234 Ga. 816, 822 (218 SE2d 599) (1975); Aldridge v. State, 247 Ga. 142, 145 (2) (274 SE2d 525) (1981). See also Dickerson v. State, 193 Ga. App. 605 (388 SE2d 736) (1989), which involves the asking of the same question but where the issue was not raised. Although appellant gave an incriminating answer to that question, he was not in custody when the question was asked and he was not thereafter taken into custody. See Bailey, supra at 180.

The evidence and law support the trial court’s conclusion that Lee’s out-of-court statements were admissible.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.

Murray, Donovan & Nabors, Donald R. Donovan, for appellant.

Patrick H. Head, Solicitor, Beverly M. Collins, Jonathon R. Brockman, Assistant Solicitors, for appellee.


text:
    A91A1451.
    SCHOFIELD v. HERTZ CORPORATION.
    (412 SE2d 853)
   Pope, Judge.

On May 1, 1989, vehicles driven by appellant/plaintiff William Schofield and defendant Albertino Duriatti collided on U. S. Highway 78 in Clarke County, Georgia. Both men sustained injuries. An officer who investigated the accident averred that the vehicles collided almost totally head-on in the eastbound lane of Highway 78, which was the diréction Schofield was travelling. Duriatti, a French citizen who was living in London, had departed from London that day and upon arrival in Atlanta rented a car from appellee/defendant Hertz Corporation. Duriatti planned to drive the car that evening from Atlanta to Athens to visit a friend.

When Duriatti rented an automobile from Hertz, he had in his possession a French passport and an international driving permit he obtained while residing in France. This permit reflected he had a valid French driver’s license. There is some dispute about whether Duriatti had in his possession a British driver’s license on the night in question, but the evidence showed that he had a valid driver’s license issued by Great Britain at that time. Duriatti testified that when he rented the car from Hertz, he presented his international permit and possibly his passport to the employee at the counter. Although it was Hertz’s policy at the time not to rent automobiles to foreigners who presented only an international driving permit without an accompanying valid driver’s license, Duriatti testified that the Hertz employee did not ask for nor did he present his British driver’s license to her. Duriatti no longer had the French driver’s license reflected on the international driving permit at the time he rented the car from Hertz, because he had surrendered that license to British authorities at the time he obtained his British driver’s license.

Schofield filed this personal injury suit against Duriatti, Hertz, and Dow Chemical Company, Ltd., Duriatti’s employer. Hertz filed a motion for summary judgment on Schofield’s claims for negligent entrustment, negligence per se and simple negligence. The trial court granted Hertz’s motion, and Schofield appeals from that decision.

1. Schofield argues that the trial court erred in granting Hertz summary judgment on his negligent entrustment claim because Hertz had actual knowledge that Duriatti was an incompetent driver by want of experience at the time it rented an automobile to him. On summary judgment, the movant has the burden of showing there is no genuine issue as to any material fact and that movant is entitled to judgment as a matter of law. When the movant is the defendant, the movant has the additional burden of piercing the plaintiff’s pleadings and affirmatively negating one or more essential elements of the complaint. The court must construe all evidence, inferences and conclusions arising from the evidence in favor of the party opposing the motion. Saenz v. Andrus, 195 Ga. App. 431, 432 (1) (393 SE2d 724) (1990).

“Under the doctrine of negligent entrustment, a party is liable if he entrusts someone with an instrumentality, with actual knowledge that the person to whom he has entrusted the instrumentality is incompetent by reason of his age or inexperience, or his physical or mental condition, or his known habit of recklessness. [Cits.]” (Footnote omitted.) Gunn v. Booker, 259 Ga. 343, 347 (381 SE2d 286) (1989). That is, the entrustor’s negligence must concur with the driver’s negligence to proximately cause damage to the plaintiff. Unless the plaintiff can prove that the driver of the automobile was negligent, the entrustor’s failure to ascertain whether the driver had a valid license is of no consequence. Id.

Schofield contends that actual knowledge can be imputed to Hertz that Duriatti was incompetent to drive the vehicle he rented because Duriatti’s undisputed testimony shows that the Hertz employee who assisted Duriatti violated Hertz’s policy of obtaining a valid driver’s license, in addition to an international driving permit, before renting to foreigners. Violations of private guidelines do not establish negligence per se, but can be illustrative of what is considered reasonable behavior for employees. See Luckie v. Piggly-Wiggly &c., 173 Ga. App. 177, 179 (2) (325 SE2d 844) (1984).

We hold that the Hertz employee’s apparent failure to comply with Hertz’s procedure of requesting a driver’s license in addition to an international driving permit cannot be the proximate cause of injury to Schofield. The United States has entered into a treaty with certain countries to allow drivers licensed by the participating countries to drive in the other countries that are parties to the treaty without further examination. Both Great Britian and France are parties to that agreement. Convention on Road Traffic, March 26, 1952, 3 U.S.T. 3008, T.I.A.S. No. 2487. Courts of this state must take judicial notice of all treaties or conventions and they predominate “over any statutory provision of the State of Georgia,” Camp v. Sellers &c. Ltd., 158 Ga. App. 646, 648 (281 SE2d 621) (1981), or private guidelines. Regardless of what Duriatti presented to the Hertz employee before he rented an automobile, he had a valid license issued by Great Britain, which pursuant to the Convention on Road Traffic, allowed him to rent an automobile in this country and to drive it without further examination. Furthermore, there is no evidence in the record to suggest further inquiry by Hertz would have revealed that Duriatti was a reckless or otherwise incompetent driver. In fact, the record reveals that Duriatti had driven several years in different countries without incident or citation.

Schofield offers several other bases to support his argument that Hertz had actual knowledge that Duriatti was an incompetent driver at the time Hertz leased him an automobile. We have examined those bases and find them to be without merit.

2. Schofield alleges that the trial court erred in granting Hertz summary judgment on his negligence per se claim because he contends that the record shows that Duriatti violated OCGA §§ 40-5-20 and 40-5-21 by operating a motor vehicle in this state without a valid license in his immediate possession. A police officer who investigated the accident testified that Duriatti’s British driver’s license was not found in his possession at the scene of the accident.

As we discussed above, the Convention on Road Traffic supersedes the statutory provisions of the State of Georgia to the extent state statutory provisions are in conflict with the provisions of that agreement. Our review of that convention reveals that a driver authorized to drive in participating countries pursuant to the agreement is required only to “hold a driving permit,” which the record reveals Duriatti did.

3. Schofield also enumerates as error that the trial court erred in granting Hertz summary judgment on Schofield’s claim against it for simple negligence. Essentially, Schofield argues that because the Hertz employee did not ask to see Duriatti’s current driver’s license, Hertz did not exercise ordinary care to ascertain whether he was a competent driver. The record in this case is void of any evidence that Duriatti had been an incompetent or reckless driver in the past, in fact, any evidence concerning his driving record indicates that he was a competent driver. Thus, assuming arguendo, that the Hertz employee’s failure to ask for Duriatti’s current license could be considered a negligent act, that act cannot constitute actionable negligence under the facts of this case because there is no causal connection between Hertz’s alleged failure to ascertain whether Duriatti had been a reckless or incompetent driver in the past and Schofield’s injuries. See Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 512 (317 SE2d 853) (1984). If the Hertz employee had requested Duriatti’s current license, Hertz would not have refused to rent him a car because he was a reckless or incompetent driver. For all the reasons set forth above, the trial court correctly granted Hertz’s motion for summary judgment.

Decided October 30, 1991

Reconsideration denied November 18, 1991

Scott B. Parks, for appellant.

Gerard & Mathews, William T. Gerard, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

       Schofield contends that whether Duriatti had a valid British driver’s license at the time of the accident is a disputed fact that would preclude summary judgment on the negligent entrustment claim. Included in the record, however, is a copy of a driver’s license issued to Duriatti by the Department of Transport of Great Britain which was valid for the period from April 1989 through April 2028.


text:
    A91A1458.
    DILLMAN v. THE STATE.
    (412 SE2d 557)
   Andrews, Judge.

Ralph Dillman III, convicted of possession of marijuana with intent to distribute, appeals, claiming error in the denial of his motion to suppress and admission of an incriminating statement.

Viewed in favor of the verdict, the evidence was that, based upon an informant’s tip, officers and the informant made an undercover buy of marijuana at a residence. The informant said a man known as “Sonny” was selling there. The officers observed the residence for 72 hours before obtaining a search warrant and saw numerous vehicles and persons come to the residence, staying only a few minutes, and leaving.

The warrant was for search of the “person of Sonny aka ‘Sonny Campbell’ and all other persons involved in illegal drugs at [the residence,]” as well as for the premises.

Not knowing Sonny’s last name, the officers checked deed and other records and discovered the house was owned by a family named Campbell. Cathy Campbell, the daughter, was the long time girl friend of Dillman, known as “Sonny” to his family and friends.

On the day of execution of the warrant, the officers found a 1986 model Ford pickup parked in the back yard of the house, with the doors locked. Upon information from the residents of the house, they called a local bar seeking the owner of the truck so they would not have to damage it by opening it without the keys. The bartender contacted Ralph Dillman, Jr., Sonny’s father, who owned and ran the bar with Sonny. He and Sonny had just arrived home and Dillman, Jr., told Sonny to go over to Cathy’s, that some policemen wanted to talk to him. Cathy, who was visiting the Dillmans, and Sonny rode in an older model Ford pickup to her house. Upon arrival, Sonny parked the truck outside the fence, but on the Campbell premises.

Officers searched Sonny upon his arrival, pursuant to the warrant, and found a small packet of marijuana in his pocket. They then searched the old pickup, and found several ounces of marijuana in the tool box of the truck. Also found on the front seat was a loaded .380 automatic, covered by a jacket. Defendant was arrested based on the marijuana found on his person.

Upon being taken into the house, defendant was read his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966) and stated that he understood them. When asked if he wanted to talk to the officers, he did not answer. Shortly thereafter, he made the statement that they would find marijuana in the newer truck. Upon searching that truck, another quantity of marijuana was found under the driver’s seat. A total of over six ounces was found.

1. Defendant filed a motion to suppress, contending that the seizure of the gun and the marijuana found in the older truck which he drove up to the house was the result of an illegal and warrantless search and not seized incident to a lawful arrest.

At the motion to suppress hearing, the court found that the vehicle was on the premises being searched and was included in the parameter of the search pursuant to warrant. Further, the court concluded defendant was under arrest and the passenger with him still had access to the truck.

On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

Two rationales support the search of the old pickup. First, it is not disputed that Dillman was the man referred to as “Sonny” and listed in the warrant. Upon searching him pursuant to it, the officers had probable cause to arrest him and could then search the vehicle incident to the arrest. Daniel v. State, 199 Ga. App. 180 (404 SE2d 466) (1991).

Secondly, the old pickup was parked on the curtilage of the property and subject to search under the warrant for searching the premises. Midura v. State, 183 Ga. App. 523, 525 (4) (359 SE2d 416) (1987); Bellamy v. State, 134 Ga. App. 340 (2) (214 SE2d 383) (1975); see Landers v. State, 250 Ga. 808, 809 (301 SE2d 633) (1983). There was no error in denying the motion to suppress.

2. With regard to the statement made by Sonny, no motion to suppress the confession was made below. The argument is that the statement was admitted in contravention of Miranda. The evidence presented at the hearing required by Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964) was that after defendant was arrested and taken into the house, Officer Martin read him his rights from his Miranda card and defendant acknowledged that he understood them. When asked if he wanted to talk, defendant made no response. No questions were asked at that time. Several minutes later, Officer Beach was sitting at the table with defendant and they were talking. The conversation was initiated by Officer Beach who said he was curious about the newer truck parked on the property. According to Officer Beach, defendant then “advised us that we would find some marijuana in the truck.”

Defendant did not testify during the Jackson v. Denno hearing, but testified before the jury that he was never warned of his rights and that he made no statement to the police.

At the conclusion of the hearing, the court found “that the statement was made voluntarily. It was made by the Defendant of his own will, without coercion, without undue influence, without suggestion of promises of reward, leniency, hope thereon or threats and is admissible.” The court also charged the jury concerning its responsibilities on this issue.

“ ‘(T)he trial court’s findings as to factual determinations and credibility relating to the admissibility of statements'will be upheld on appeal unless they are clearly erroneous.’ [Cit.]” Miller v. State, 184 Ga. App. 202, 203 (2) (361 SE2d 63) (1987).

The trial court, by its ruling that the statement was voluntarily made, accepted the facts as put forth by the State, and this finding is not clearly erroneous.

Defendant contends, not that the statement was involuntarily coerced thereby depriving him of due process, Metheney v. State, 197 Ga. App. 882, 885 (1 c) (400 SE2d 25) (1990), but that there was insufficient evidence from which the court could conclude that defendant waived his rights after indicating that he understood them and initially remaining silent when asked if he wished to make a statement.

While, as urged by defendant, mere silence is not enough to show waiver, “[t]hat does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights.” North Carolina v. Butler, 441 U. S. 369, 373 (1 b) (99 SC 1755, 60 LE2d 286) (1979); Williams v. State, 244 Ga. 485, 487 (4 c) (260 SE2d 879) (1979).

Decided October 30, 1991

Reconsideration denied November 18, 1991

Christopher G. Nicholson, for appellant.

Michael C. Eubanks, District Attorney, J. Wade Padgett, Richard E. Thomas, Assistant District Attorneys, for appellee.

Defendant relies on Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981) and Brady v. State, 259 Ga. 573, (385 SE2d 653) (1989). Both of those cases, however, deal with the right to counsel in situations where an accused has affirmatively expressed the desire to have counsel present before questioning. No such request was made here, nor was there any affirmative statement that defendant did not wish to speak with the officers, only silence. We cannot equate silence with the affirmative requests present in those cases. Brady, supra at 577.

After reviewing the evidence presented during the hearing and at trial, we are satisfied that the appellant’s statement was voluntary, that he understood his rights and, based on the totality of circumstances, knowingly and intelligently chose to waive his rights after being properly advised of them. Lane v. State, 247 Ga. 19, 20 (3) (273 SE2d 397) (1981); Johnson v. State, 186 Ga. App. 801, 803 (368 SE2d 562) (1988); see Golden v. State, 163 Ga. App. 629, 631 (2) (295 SE2d 144) (1982).

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

       Although defendant here argues that the seizure from the other truck was also illegal, this ground was not argued below and will not be considered here for the first time. Barnwell v. State, 197 Ga. App. 116, 118 (4) (397 SE2d 717) (1990).