Bing v. State

• Decision Date: 17 March 1986
• Docket Number: No. 71179,71179
• Citation: 178 Ga.App. 288,342 S.E.2d 762
• Parties: BING v. The STATE.
• Court: Georgia Court of Appeals

Page 762

342 S.E.2d 762

178 Ga.App. 288

BING v. The STATE.

No. 71179.

Court of Appeals of Georgia.

March 17, 1986.

James W. Bradley, Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., Todd E. Naugle, Asst. Dist. Atty., for appellee.

BENHAM, Judge.

Appellant was convicted of commercial gambling in that he intentionally recorded a bet on an athletic contest. OCGA § 16-12-22(a)(2). He enumerates as error numerous rulings made by the trial court during the trial, as well as the denial of several pre-trial motions. He also questions the sufficiency of the evidence.

1. Appellant asserts as error the denial of his motion to suppress. He contends that the search warrant was an illegal general warrant which did not state with sufficient particularity the person and premises to be searched. The warrant authorized a search of the premises at 7448 Mockingbird Trail, Riverdale, Clayton County, Georgia, for marijuana. While the warrant did not contain the name of any individual, the officer who applied for and executed the warrant testified at the motion to suppress hearing that he had probable cause to believe that Donald Gann, a resident of the searched premises, was connected with the marijuana. After they were admitted entry into what appeared to be a single-family residence, the searching officers discovered that appellant and another man each occupied a bedroom in the home. Appellant's bedroom was searched and the gambling paraphernalia which formed the basis of the indictment against him was allegedly found.

The failure to name a person in the search warrant is not fatal. "Search warrants are not directed at persons; they authorize the search of 'places' and the seizure of 'things,' and as a constitutional matter they need not even name the person from whom the things will be seized. [Cit.]" Zurcher v. The Stanford Daily, 436 U.S. 547, 555, 98 S.Ct. 1970, 1976, 56 L.Ed.2d 525 (1978). Nor is the search warrant fatally defective for failing to describe with particularity the place to be searched. " 'The test for the sufficiency of a premises description is whether ... on its face it enables a prudent officer executing the warrant to locate the person and place definitely and with reasonable certainty.' [Cit.] The U.S. Supreme Court found a 'description in a search warrant giving its street and one of its two house numbers ... sufficiently definite.... It is enough if the description is such that the officer with a search warrant can with reasonable effort ascertain and identify the place intended.' [Cit.]" State v. Hardin, 174 Ga.App. 83, 329 S.E.2d 172 (1985). The warrant described the place to be searched with sufficient particularity by giving the street address, city, county, and state. See Jackson v. State, 129 Ga.App. 901(1b), 201 S.E.2d 816 (1973); Adams v. State, 123 Ga.App. 206, 180 S.E.2d 262 (1971).

Appellant continues his assault upon the search of his bedroom by asserting that the "multiple occupancy structure" rule invalidated the officers' search of his room since they had discovered, before conducting their search, that the residence was occupied by more than one person. Appellant maintains that the discovery of multiple occupants necessarily limited the officers' search by excluding the areas under the dominion and control of those not the target of the warrant.

"A search warrant for ... [a] multiple occupancy building will usually be held invalid if it fails to describe the particular subunit to be searched with sufficient definiteness to preclude a search of one or more subunits indiscriminately." 2 LaFave, Search & Seizure, § 4.5(b) at p. 78 (1978). If, however, neither the affiant nor investigating officers nor executing officers knew of or had reason to know of the structure's actual multiple occupancy character until execution of the warrant was under way, and the outward appearance of the building reflects a single-occupancy structure, the warrant is not invalid for failure to specify a subunit within the building. Id. at 79. Compare Jones v. State, 126 Ga.App. 841, 192 S.E.2d 171 (1972). However, "[t]he mere fact that a structure contains several residents who are not related to one another does not automatically convert its rooms into 'subunits.' " State v. Willcutt, 19 Or.App. 93, 526 P.2d 607, 608 (1974). In situations in which several persons occupy the premises in common, sharing common living quarters but having separate bedrooms, the courts have held that a single warrant describing the entire premises is valid and justifies the search of the entire premises. Jackson v. State, supra; State v. Lorenz, 368 N.W.2d 284 (Minn.1985); State v. Weaver, 442 So.2d 380 (Fla.App.2d Dist.1983); State v. Coatney, 44 Or.App. 13, 604 P.2d 1269 (1980); People v. Thomas, 70 Ill.App.3d 459, 26 Ill.Dec. 940, 388 N.E.2d 941 (1979). "[W]here a significant portion of the premises is used in common and other portions, while ordinarily used by but one person ... are an integral part of the described premises and are not secured against access by the other occupants, then the showing of probable cause extends to the entire premises. For example, if three persons share an apartment, using a living room, kitchen, bath and hall in common but holding separate bedrooms which are not locked, whichever one of the three is responsible for the described items being in the apartment could have concealed those items anywhere within, including the bedrooms of his cotenants." 2 LaFave, supra at 81. (Emphasis supplied.) "[I]t would be unrealistic to require the police to ascertain whether the [owner] is [leasing], to whom, and who occupies what portion of the house. This is analogous to requiring the enforcement officers to determine if a daughter or son pays rent while residing in the same house as their parents and if their use of the house is restricted." Jackson v. State, supra, 129 Ga.App. at 904, 201 S.E.2d 816.

The officers in the case at bar were acting within the scope of the search warrant they had when they searched appellant's bedroom for marijuana. Appellant admitted at the suppression hearing that his bedroom door did not have a lock by which he could secure the room against visitors while he was absent. See Weaver, supra. Evidence of another crime, discovered while searching pursuant to a valid search warrant, may be lawfully seized. See OCGA § 17-5-21(b); DePalma v. State, 228 Ga. 272(4b), 185 S.E.2d 53 (1971). Appellant's motion to suppress was properly denied.

2. Appellant next contends that his motion for directed verdict of acquittal was improperly denied.

The case against appellant was built on circumstantial evidence, "evidence which only tends to establish the issue by proof of various facts, sustaining by their consistency the hypothesis...