¶1dissenting.
¶2I dissent, as I would reverse the conviction because of the trial court’s erroneous denial of appellant’s motion to suppress.
¶3"Thus the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated *856exceptions.’ The exceptions are 'jealously and carefully drawn,’ and there must be 'a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.’ '[T]he burden is on those seeking the exemption to show the need for it.’ In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represents may appear unrealistic or 'extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won — by legal and constitutional means in England, and by revolution on this continent — a right of personal security against arbitrary intrusions by official power. If times have changed, reducing everyman’s scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.” Coolidge v. New Hampshire, 403 U. S. 443, 454-455 (91 SC 2022, 29 LE2d 564) (1971). The majority opinion sustains the warrantless search as one incident to a lawful arrest. I agree that the arrest was legal. However, I cannot agree that the ensuing search was "incident to” that arrest.
¶4The evidence introduced on the motion to suppress showed that, at the time of the search of his car, appellant had been arrested, handcuffed and placed in a patrol car. He was in no position to harm the arresting officer or to destroy evidence. The following testimony by an officer on the scene of the arrest demands those conclusions: "Q. Now, when the searches were made, where was the defendant? A. When the searches were made? Q. Correct. A. Well, the search was made at the scene at the time of apprehension. He was standing near the vehicle and was probably in the patrol car a few minutes later in the back seat. Q. Was the defendant secured? A. Yes, sir, he was. Q. He was handcuffed? A. Yes, sir. Q. Was he under guard by the Police Department? A. Yes, sir. Q. And, so there was no possibility that the defendant would destroy any fruits of the crime in the automobile, is that correct? A. That’s correct. Q. There was no possibility that the defendant could have obtained an offensive weapon from this automobile and harm the police officers, is that correct? A. *857At this time, he could not.”
¶5That evidence mandates that the search was not justifiable as a search incident. "When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area 'within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence . . . 'The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime — things which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest.’ ” Chimel v. California, 395 U. S. 752, 762-764 (89 SC 2034, 23 LE2d 685) (1969). "Searches incident to lawful custodial arrests compromise one of the narrow exceptions to the general principle that searches are unconstitutional unless authorized by a prior judicial warrant. The exception serves two purposes. First, it allows the arresting officer to disarm the suspect, thus protecting the officer’s safety and foreclosing the possibility of escape. Second, the exception permits the officer to prevent the suspect from destroying evidence. These twin goals simultaneously provide the justification for an incident search and its permissible limits. A lawful incident search cannot extend beyond the perimeters *858established by these goals.” United States v. Edwards, 554 F2d 1331, 1336 (5th Cir., 1977). See also Code § 27-301 and Lentile v. State, 136 Ga. App. 611 (222 SE2d 86) (1975). Newman v. State, 237 Ga. 376 (228 SE2d 790) (1976) and Taylor v. State, 149 Ga. App. 30 (253 SE2d 428) (1979), cited by the majority, do not involve searches incident to arrests and thus are completely inapposite.
¶6Neither did the trial court adjudge that the search was incident to the arrest. Rather, the court apparently sustained the search for another reason — that the police officers possessed probable cause to believe the automobile contained evidence of a crime and exigent circumstances prevented the acquisition of a search warrant. See Love v. State, 144 Ga. App. 728, 734 (242 SE2d 278) (1978) and Chambers v. Maroney, 399 U. S. 42 (90 SC 1975, 26 LE2d 419) (1970). I believe the trial court was correct in so concluding. The officers certainly had probable cause to think evidence connected with an attempted armed robbery existed in the car. Also, the officers stopped the car at a traffic light on a public highway — this exigent circumstance plus probable cause justified the warrantless search. The majority ignores the distinctions between those two exceptions to the warrant requirement. "[T]he search of an auto on probable cause proceeds on a theory wholly different from that justifying the search incident to an arrest: 'The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.’ ” Chambers, supra, p. 49. The Supreme Court in Chambers noted that the mobility of a car in such a situation as the instant case may make the warrantless search of the car reasonable, and the court re-emphasized that only upon a like exigent circumstance "will the judgment of the police as to probable cause serve as a sufficient authorization for a search.” Id, p. 51.
¶7The warrantless search which occurred here, therefore, was reasonable. The majority reaches that conclusion, but with a faulty analysis. However, on the motion to suppress, the state presented no probative evidence showing that the fruits of the search, a *859hat-mask, a toy gun, and some paper bags, were found in appellant’s automobile or otherwise in his possession. The state’s failure in that regard is the basis for my dissent.
¶8On the hearing of the motion, there being more than one officer present at the time of the arrest, the state presented only one officer, who testified: "Q. Do you know who found this gun? A. No sir. I don’t remember who found the gun ... Q. You don’t know who found the bags, do you? A. No, sir, I don’t remember that, either. Q. So, it is your testimony today that the three items, the pistol, hat, and the bags that we’re concerned with, you don’t know who made the search, is that correct? A. Well, there were two or three or four different people who made the search. Myself and two or three others. Q. You don’t know which of you did what? A. No, sir, I don’t remember.” The only officer who testified, therefore, had no personal knowledge of the search. The entirety of his testimony as to the location where the seized items were found was hearsay and provided no support for the state’s contention that appellant possessed them. Yawn v. State, 134 Ga. App. 77 (2) (213 SE2d 178) (1975). The three eyewitness-victims in counts one, two, three and five, who testified at trial, could not positively identify appellant as the perpetrator. In fact, the one two-time victim admitted she could not state that appellant was the man. On counts one, two, three and five, the respective victim, who testified for the state, was the only witness to the crime. The erroneous admission of the evidence sought to be suppressed thus was very likely a substantial reason for the jury’s decision to convict, and the admission cannot be said to have been harmless constitutional error. See Schneble v. Florida, 405 U. S. 427, 432 (92 SC 1056, 31 LE2d 340) (1972), where the court indicates reversal is required where "there is a reasonable possibility that the improperly admitted evidence contributed to the conviction.”
¶9I am authorized to state that Chief Judge Deen joins in this dissent.