Brannen v. State, 43105

• Decision Date: 05 December 1967
• Docket Number: No. 43105,No. 2,43105,2
• Citation: Brannen v. State, 159 S.E.2d 476, 117 Ga.App. 69 (Ga. App. 1967)
• Parties: G. C. BRANNEN v. The STATE
• Court: Georgia Court of Appeals

Page 476

159 S.E.2d 476

117 Ga.App. 69

G. C. BRANNEN v.The STATE.

No. 43105.

Court of Appeals of Georgia, Division No. 2.

Dec. 5, 1967.

Syllabus by the Court

Where defendant's motions to suppress evidence obtained by illegal search and seizure failed to show that the search was directed against defendant and failed to state facts showing wherein the search and seizure were unlawful, it was not error to overrule the motions to suppress or to admit the evidence over oral objection.

Charles C. Gregorie, Jr., Macon, for appellant.

Jack J. Gautier, Sol.Gen., H. Jerome Strickland, Macon, for appellee.

BELL, Presiding Judge.

1.Defendant's conviction for the offense of larceny from the house was authorized by the evidence.

2.Prior to an Act of 1966(Ga.L.1966, pp. 567, 571;Code Ann. § 27-313) there was no procedural device in Georgia law comparable to the motion to suppress provided by Rule 41(e) of the Federal Rules of Criminal Procedure,18 U.S.C.Green v. State, 110 Ga.App. 346(1), 138 S.E.2d 589.SeeTanner v. State, 114 Ga.App. 35, 36(1), 150 S.E.2d 189.Thus it was necessary to take advantage of the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, by objections voiced at the time the evidence was actually offered.Jackson v. State, 108 Ga.App. 529, 133 S.E.2d 436.

Since the Act of 1966, an oral objection to evidence obtained by unlawful search and seizure is not sufficient unless preceded by suppression of the evidence pursuant to a motion to suppress in compliance with the Act.The Act clearly evinces the legislative intent that suppression, or exclusion, of the evidence must be founded upon motion, or objection, in writing: 'The motion shall be in writing * * *'Code Ann. § 27-313(b).Failure to interpose a timely motion to suppress in compliance with the Act amounts to a waiver of the constitutional guaranty in respect to the search and seizure in question.Gilmore v. State, 117 Ga.App. 67, 159 S.E.2d 474.

The motion to suppress must show that the search was directed against the movant.Code§ 27-313(a);Norrell v. State, 116 Ga.App. 479, 488(3), 157 S.E.2d 784.SeeJones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed. 697, 702;Elkins v. United States, 9 Cir., 266 F.2d 588, 595;Diaz-Rosendo v. United States, 357 F.2d 124, 131.And it must 'state facts showing wherein the search and seizure were unlawful.'Code Ann. § 27-313(b).

Here the defendant's two motions to suppress, as amended, merely stated that the described property was seized 'at the premises known as Brannen Drugs, 402 Cherry Street, in the City of Macon, Bibb County, Georgia,' with no averment showing the defendant's relationship to the premises.The search was conducted pursuant to a warrant, but the warrant was neither described nor incorporated in the motions.Both motions merely stated grounds...