Herndon v. State

Full title: HERNDON v. THE STATE

Court: Court of Appeals of Georgia

Date published: Apr 6, 1976

226 S.E.2d 141 (Ga. Ct. App. 1976)

138 Ga. App. 346

Opinion

51868.

ARGUED MARCH 8, 1976.

DECIDED APRIL 6, 1976.

Drug violation. Cherokee Superior Court. Before Judge Pope.

Elliott R. Baker, H. Clifton Conrad, Jr., for appellant.

C. B. Holcomb, District Attorney, for appellee.

BELL, Chief Judge.

After indictment for wrongful possession of marijuana defendant moved to suppress the evidence. The state moved to dismiss because defendant's motion was fatally defective as defendant failed to allege that he had any standing to challenge the search of two vehicles. The trial court sustained the state's motion to dismiss and certified the case for immediate review on June 9, 1975. Held:

The defendant did not lack standing to object to the search because of failure to allege that he had a proprietary interest in the place searched (the automobiles) or the property seized. Where possession is an essential element of the offense charged, a defendant can claim automatic standing to contest the validity of a search. Jones v. United States, 362 U.S. 257 ( 80 SC 725, 4 L.Ed.2d 697). Under Jones the trial court erred in dismissing defendant's motion.

Judgment reversed. Clark and Stolz, JJ., concur.

ARGUED MARCH 8, 1976 — DECIDED APRIL 6, 1976.