Baxter v. State

• Decision Date: 21 February 1975
• Docket Number: Nos. 1,3,No. 49848,2,49848,s. 1
• Citation: 214 S.E.2d 578,134 Ga.App. 286
• Parties: William E. BAXTER, Jr. v. STATE
• Court: Georgia Court of Appeals

Page 578

214 S.E.2d 578

134 Ga.App. 286

William E. BAXTER, Jr. v. STATE.

No. 49848.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 21, 1975.

Rehearing Denied March 14, 1975.

Harris, Chance & McCracken, Kenneth R. Chance, Augusta, for appellant.

J. Edward Slaton, Sol., Herbert E. Kernaghan, Jr., Asst. Sol., Augusta, for appellee.

Syllabus Opinion by the Court

WEBB, Judge.

William E. Baxter, Jr. operated a commercial gambling establishment in a dwelling near Augusta which he had leased. Pursuant to a search warrant, the premises were raided by law enforcement officers on the night of April 12, 1974, during the week of the Masters Golf Tournament. A number of persons, including Baxter, were arrested, much commercial gambling equipment was seized, and the games were interrupted. As a result, Baxter was tried, convicted and sentenced in the State Court of Richmond County on each of two assusations charging misdemeanors in violation of Code Ann. § 26-2707, 'Possession of gambling device or equipment,' ¹ and Code Ann. § 26-2703, 'Commercial gambling.' ²

Baxter appeals to this court, charging four fouls were committed by the law enforcement officers and the trial court. The alleged errors of which he complains are:

(1). The search warrant was improperly issued on hearsay rather than proper information;

(2). An agent of the Georgia Bureau of Investigation (now Division of Investigation) has no authority to seek and obtain a search warrant (3). The search warrant was executed without reasonable notice before forcible entry of the premises.

Because of these three alleged fouls by the law enforcement officers, Baxter contends that the trial court committed error in denying his motion to suppress evidence obtained by the raid and the testimony resulting therefrom. His other alleged foul is:

(4). The conviction and sentence on each of the two accusations are multiple prosecutions and violative of Code Ann. § 26-506(a). ³

We deal with the four alleged errors seriatim.

1. Baxter contends that the affidavit upon which the warrant was based does not constitute a showing of probable cause, that the affiant, Harry G. Coursey, a special agent of the Georgia Division of Investigation, states he received some of his information from a fellow agent, E. P. Peters, who was merely repeating something that had been told him by a confidential informer, that there is no statement that Agent Peters is a reliable source of information, and that the affidavit was hearsay on hearsay.

Special Agent Coursey in his affidavit stated that he personally conducted a surveillance of the premises on April 11, 1974, the day before he appeared before the magistrate, that the premises were those indicated by information as housing a gambling operation, that during his surveillance, Baxter was observed in the vicinity of the premises, and that the confidential information received 'by Senior Agent Peters from a reliable unnamed informant has been established as accurate by the independent investigations of the affiant . . .'

"'In dealing with probable cause, . . . as the very name implies, we deal with probabilities. They are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians act.' Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879. There is also a great 'difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search.' Draper v. United States, 358 U.S. 307, 311-312, 79 S.Ct. 329, 332, 3 L.Ed.2d 327. As Judge Learned Hand said in United States v. Heitner, 149 F.2d 105, 106 (CA2d Cir.): 'It is well settled that an arrest may be made upon hearsay evidence; and indeed, the 'reasonable cause' necessary to support an arrest cannot demand the same strictness of proof as the accused's guilt upon a trial, unless the powers of peace officers are to be so cut down that they cannot possibly perform their duties." (From Peters v. State, 114 Ga.App. 595, 596, 152 S.E.2d 647.) We have no hesitancy in adopting and, indeed, reiterating these principles in connection with appellant's contentions respecting the showing of probable cause in this case. The affiant here showed ample facts to authorize the issuing magistrate to conclude that there was probable cause to believe that a crime of the nature set forth in the affidavits had been committed and that evidence of that crime would be produced by a search of the premises described in the affidavits. The fact that much of the affiant's information was derived from informants would not vitiate the warrant.' Strauss v. Stynchcombe, 224 Ga. 859, 865, 165 S.E.2d 302, 306; Johnston v. State, 227 Ga. 387, 389, 181 S.E.2d 42; Pass v. State, 227 Ga. 730, 734, 182 S.E.2d 779; DePalma v. State, 228 Ga. 272, 276, 185 S.E.2d 53.

'It is immaterial which policeman received the tip. Observations of fellow officers of government engaged in a common investigation are a reliable basis for a warrant applied for by one of their number.' Buck v. State, 127 Ga.App. 72, 74(2), 192 S.E.2d 432, 434. 'When a police officer is the informant the reliability of the informant is presumed as a matter of law.' State v. Causey, 132 Ga.App. 17, 20, 207 S.E.2d 225, 228; McNeal v. State, 133 Ga.App. 225(2), 211 S.E.2d 173.

Code Ann. § 27-303 allows a warrant to issue upon a showing of facts "sufficient to show probable cause that a crime is being committed, or has been committed . . .' The test of probable cause is whether it would justify a man of reasonable caution in believing that an offense has been or is being committed, and this requires merely a probability-less than a certainty but more than a mere suspicion or possibility.' (Cits. omitted). Butler v. State, 130 Ga.App. 469, 470(1), 203 S.E.2d 558; Geiger v. State, 129 Ga.App. 488, 492(1), 199 S.E.2d 861.

In the case sub judice, the affidavit was not based solely upon information from an unnamed informant, but there was in independent investigation made to corroborate the informant.

We thus hold that there was sufficient showing of probable cause in this case to justify the issuance of a search warrant, and the motion to suppress on the first ground must fail.

2. Baxter's contention is that Agent Coursey, as a member of the Division of Investigation, had no authority to seek and obtain a search warrant, and that the warrant was void.

A search warrant may be issued upon the written complaint of any officer of the State or its political subdivisions charged with the duty of enforcing the criminal laws. Code Ann. §§ 27-303, 27-314. It shall be issued in duplicate and directed to all peace officers of the state. Code Ann. § 27-305. "Peace officer' means any person who by virtue of his office or public employment is vested by law with a duty to maintain public order or to make arrests for offenses, whether that duty extends to all crimes or is limited to specific offenses.' Code Ann. § 26-401(k).

Members of the Division of Investigation are vested with the same authority, powers and duties possessed by the uniform division of the Department of Public Safety. Code Ann. §§ 92A-302, 92A-242, and 92A-243. Also, the Division has specific statutory authority to investigate and make arrests of persons violating the Georgia Drug Abuse Control Act. Code Ann. §§ 79A-208(f) et seq., 40-3501, 40-3521 and 40-3522.

Additionally, Ga.L.1937, p. 322, as amended (Code Ann. § 92A-242) provides that: '. . . the Director of Public Safety ⁴ in unusual circumstances, may, and in the case of an order from the Governor of Georgia shall, direct members of the Georgia State Patrol ⁵ to render assistance in any other criminal case, or in the prevention of violations of law, or in detecting and apprehending those violating any criminal laws of this, or any other State, or the United States.' (Emphasis supplied.)

There exists an Executive Order promulgated by Governor Carl E. Sanders which provides in part: 'Ordered: That the members of the Georgia Bureau of Investigation so assigned by the Director of the Department of Public Safety in the performance of their duties hereunder be and they are hereby authorized to make arrests in any county or municipality in this state; and it is further ordered: . . . That the Director of the Department of Public Safety be and he is hereby authorized to issue all orders and take any and all necessary action needful to carry out the provisions of this order; and it is further Ordered: That the original of this order be filed in the office of the Secretary of State instanter and shall be effective as of 12:00 noon, E.S.T., July 20, 1964, and shall remain in effect as herein provided until revoked, rescinded or modified by me.' ⁶

The statutory provision hereinabove cited (Code Ann. § 92A-242) is a deliberate, explicit delegation by the legislature to the Governor of the power to determine when it is necessary for law enforcement officers of the Department of Public Safety to exercise general arrest and investigatory powers. The Executive Order issued pursuant to this statutory provision, until rescinded or superseded, is effective beyond the expiration of the term of the Governor who issued it. The executive power is one of continuing effect, never ending, and unbroken by succession, a principle inherent and necessary to preservation of the stability and the integrity of our constitutional government. State v. Brewster, 140 W.Va. 235, 84 S.E.2d 231, 246(13); Barrett v. Duff, 114 Kan. 220, 217 P. 918, 919(1). So issued, the order has the force and effect of law. Atkins v. Manning, 206 Ga. 219, 221, 56 S.E.2d 260. Cf. Georgia Public Service Comm. v. Jones Transp., Inc., 213 Ga. 514(1), 100 S.E.2d 183.

We hold that an agent of the Division of Investigation is a peace officer, that such an agent in the performance of duties assigned to him by the Director of the...