Opinion
50021.
ARGUED JANUARY 13, 1975.
DECIDED FEBRUARY 13, 1975.
Drug violation. Meriwether Superior Court. Before Judge Knight.
Elkins, Flournoy Garner, Thomas M. Flournoy, Jr., for appellants.
Eldridge W. Fleming, District Attorney, Robert H. Sullivan, Assistant District Attorney, for appellee.
An armed robbery had occurred in Manchester, Georgia. The robbers were allegedly three black males who had fled on foot. The Meriwether County officers immediately set up a roadblock in Woodbury, Georgia, seeking to apprehend the robbers. An automobile occupied by three Caucasian males, driven and owned by Grimes, with Merritt as a passenger in the front seat and Bowling in the back seat, was stopped at the roadblock. One of the officers saw Merritt surreptitiously put "something" in his pocket. He advised another officer of what he saw. This officer ordered Merritt out of the automobile. At this point the officers admitted that the three white males were not under suspicion as being the robbers. Merritt was searched by reaching in his pocket and removing a marijuana cigarette. He was not "patted down" for a weapon search. Merritt was placed under arrest, and the automobile was then searched and other marijuana was found in the glove compartment and the console of the automobile.
Merritt, Grimes and Bowling were jointly indicted for possession of marijuana. A motion to suppress the evidence was filed, heard and denied. Defendants appeal. Held:
1. Under a warrantless search and seizure, the burden of proving that the search and seizure were lawful is upon the state. Code Ann. § 27-313 (b); Jones v. State, 131 Ga. App. 699 (1) ( 206 S.E.2d 601).
2. The state contends it searched defendant Merritt for the protection of the officers at the roadblock as authorized by Code Ann. § 27-301 (a). A limited right to stop automobiles on the highway is allowed under the state's police power. Anderson v. State, 123 Ga. App. 57 (2) ( 179 S.E.2d 286). But the evidence, even if it might be said that a search for weapons was necessary, shows that the officer did not merely "pat down" defendant Merritt, but reached in his pocket and took out the marijuana cigarette when another officer contended he saw defendant Merritt place "something" in his pocket. This shows the search was not under any suspicion of the crime for which he was stopped at the roadblock but because the officer was interested in what defendant Merritt had in his pocket — a marijuana cigarette. See Brooks v. State, 129 Ga. App. 109 ( 198 S.E.2d 892); Uva v. State, 124 Ga. App. 486 ( 184 S.E.2d 200); Holtzendorf v. State, 125 Ga. App. 747 ( 188 S.E.2d 879); Ivins v. State, 129 Ga. App. 865 ( 201 S.E.2d 683).
3. A mere limited "pat down" of his outer clothing would have satisfied his suspicion that there was no weapon in his pocket. See Terry v. Ohio, 392 U.S. 1 ( 88 SC 1868, 20 L.Ed.2d 889). Only a limited search is permitted, i.e., to "stop and frisk." Instead he searched his pocket and removed a cigarette which was a "reefer." The automobile was then searched after the resulting illegal arrest of Merritt, for no reasonable cause existed to make a search of his person as was done. This rendered the entire search thereafter unlawful, and the articles seized were fruit of the unlawful arrest. Wong Sun v. United States, 371 U.S. 471 ( 83 SC 407, 9 L.Ed.2d 441); Sibron v. New York, 392 U.S. 40 ( 88 SC 1889, 20 L.Ed.2d 917); Davidson v. State, 125 Ga. App. 502 ( 188 S.E.2d 124); Kelly v. State, 129 Ga. App. 131 ( 198 S.E.2d 910).
4. The motion to suppress should have been granted.
Judgment reversed. Deen, P. J., and Stolz, J., concur.