State v. Rivers

142 Ga. App. 96 (1977)

235 S.E.2d 393

THE STATE v. RIVERS.

53661.

Court of Appeals of Georgia.

Submitted April 11, 1977.

Decided April 25, 1977.

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

Horton J. Greene, for appellee.

BANKE, Judge.

The defendant was accused of possession of marijuana. The trial court sustained his motion to suppress the contraband, from which order the state appeals.

During the evening of March 21, 1976, two uniformed police officers were in an unmarked van watching an Atlanta parking lot for CB radio thieves. As they observed, the defendant entered a car after looking around, lay on the front seat, fumbled under the seat, left the car, and again cautiously looked around. The police approached the defendant, checked his registration, determined that the automobile in question belonged to him, and let him go. They resumed their stake-out. Ten minutes later, the defendant returned to the parking lot and did the same thing. On that occasion, the officers approached the defendant, who was standing near the automobile, and one of them said, "Sir, I think we need to talk to you. Do you mind?" Upon seeing a manila envelope partially hidden by the floor mat of the car, one of the policemen said, "You mind if we search your car?" To which the defendant replied, "No, I don't." Marijuana was found in the envelope.

Although the defendant did not challenge the testimony as detailed above, he contends that his consent to search was given because of the over-powering presence of the police officers. However, there is no evidence that the defendant evinced any reluctance or was subjected to any coercion. No other factors such as youth, lack of *97 education, low intelligence, physical detention, harsh questioning, or use of physical force are present here. See Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Brand v. State, 129 Ga. App. 747 (201 SE2d 180) (1973). "Probable cause and a warrant are not required for a search and seizure which is conducted pursuant to consent." McKendree v. State, 133 Ga. App. 295 (211 SE2d 154) (1974). The trial court erred in granting the defendant's motion to suppress.

Judgment reversed. Quillian, P. J., and Shulman, J., concur.