Connally v. State

• Decision Date: 09 July 1976
• Docket Number: No. 30815,30815
• Citation: 227 S.E.2d 352,237 Ga. 203
• Parties: John CONNALLY v. The STATE.
• Court: Georgia Supreme Court

Page 352

227 S.E.2d 352

237 Ga. 203

John CONNALLY v. The STATE.

No. 30815.

Supreme Court of Georgia.

July 9, 1976.

Hatcher & Daniel, David P. Daniel, Rossville, for appellant.

Earl B. Self, Dist. Atty., Jon B. Wood, Asst. Dist. Atty., Summerville, Issac Byrd, Staff Asst. Atty. Gen., Atlanta, for appellee.

UNDERCOFLER, Presiding Justice.

Defendant, John Connally, was indicted, tried and convicted for having marijuana in his possession and under his control in violation of the Georgia Controlled Substances Act, Code Ann. ch. 79A-8, and received an eight year sentence. He appeals raising four points of error. We affirm.

Acting on information from a detective of the Chattanooga Police Narcotics division, who had received a tip from an informer that Connally would be receiving a shipment of two tons of marijuana, the Walker County authorities drew up a search warrant for Connally's house and presented it and their information to a Justice of the Peace for his signature. About ten days later, the same Chattanooga detective placed a call for the informer to Connally from the detective's residence, while he listened on an extension, to inquire about the shipment. He overheard Connally tell the informer that Rick and Tom, two Mexicans making the contact, had gotten in a fight in Texas, had been cut up, and would not be making their connection. He, however, had a new contact and hoped to obtain about three to four hundred pounds shortly. A few days later, under the same eavesdrop arrangement from the detective's home, the informant agreed to buy one hundred pounds at around one hundred dollars per pound when the shipment arrived. Connally later called the informer at his residence. On the basis of this phone call, the detective and informer met with the Walker County investigator, obtained a new search warrant, and raided Connally's house. There, they arrested Connally and several others, and seized some large garbage bags of green leafy material, a closetful of bricks of the same material, and several live plants growing in pots around a swimming pool. This material was identified by a crime lab expert as Cannabis sativa L., marijuana.

1. Connally moved to suppress the evidence seized under the search warrant issued by the Justice of the Peace. He contended the Justice was not a 'neutral and detached magistrate' because he had a pecuniary interest in issuing the warrant, in that he is on a fee system and receives $5.00 for issuing a search warrant. Code Ann. § 24-1601. The trial court denied the motion. We affirm.

Connally relies upon Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972) and similar cases which state that an issuing magistrate must be 'neutral and detached' together with Tumey v. Ohio, 273 U.S. 510, 531, 47 S.Ct. 437, 444, 71 L.Ed. 749 (1927), which held: 'From this review we conclude that a system by which an inferior judge is paid for his service only when he convicts the defendant has not become so embedded by custom in the general practice, either at common law or in this country that it can be regarded as due process of law, unless the costs usually imposed are so small that they may be properly ignored as within the maxim 'deminimis non curat lex'.' See Bennett v. Cottingham, D.C.Ala., 290 F.Supp. 759, affd., 393 U.S. 317, 89 S.Ct. 554, 21 L.Ed.2d 513 (1969).

Connally argues that applying the rationale of these cases it must be concluded that the Justice of the Peace was not neutral and detached in issuing the search warrant here because unless he issues it hs is not paid. The U.S. Supreme Court has not so held and we decline to do so. We discern a difference in the principles announced in these decisions and are not prepared to construe them together as Connally suggests. Shadwick and similar cases have established only that the 'neutral and detached magistrate' required to determine probable cause is one independent of the police and prosecution. No contention is made here that the Justice of the Peace is not independent in that regard.

On the other hand, Tumey and its progeny condemn convictions by a judicial officer who has a substantial pecuniary interest in fines and costs levied against the defendant upon his conviction. This is quite different than the inquiry and adjudication of probable cause for the issuance of a search warrant, where the defendant is not convicted and subject to fine or imprisonment. The former is not a legal dispute. It is necessarily a unilateral proceeding and only determines probable cause, and is conducted frequently by a person without formal legal training. The dispute and adversary proceedings concerning the validity of the warrant must be raised in the trial court upon a motion to suppress. Code Ann. § 27-313. It is adjudicated there by a judge trained in the law and not on a fee basis. The State has the burden of proving the search and seizure was lawful. Code Ann. § 27-313(b).

We note too that the Justice of the Peace is not dependent upon an adjudication by the trial court that the search warrant was issued lawfully, nor upon the conviction of the defendant, to be entitled to his fee. His fee is paid by the county out of any fines and forfeitures arising in such county. Code § 27-2906. Also, we are not persuaded that a Justice of the Peace would violate his oath to earn a $5.00 fee and are inclined to the view that the amount involved in issuing or refusing to issue a search warrant falls within the de minimis rule. The Justice of the Peace testified that he had refused to issue search warrants on some occasions.

We have not overlooked Ward v. Village of Monroeville, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) wherein it was held that the defendant was denied a neutral and detached judicial officer where he was compelled to stand trial before the mayor who was responsible for village finances and whose court through fines, forfeitures, costs, and fees provided a substantial portion of village funds. As stated at p. 62, 93 S.Ct. at p. 84, footnote 2, 'The question presented on this record is the constitutionality of the Mayor's participation in the adjudication and punishment of a defendant in a litigated case where he elects to contest the charges against him. . . .'

We equate the instant case with Bevan v. Krieger, 289 U.S. 459, 465, 53 S.Ct. 661, 663, 77 L.Ed. 1316 (1933) where it is stated, 'The appellant Bevan also advances the contention that the notary had such a pecuniary interest in compelling the testimony as would disqualify him, and deprive his rulings of the impartiality required for due process. Notaries are entitled to fees of twenty-five cents per hundred words for taking and certifying depositions (General Code, §§ 127, 1746-2). These are paid in the first instance by the party taking the depositions, and are taxable as costs in the suit. It appears from the record that it is also customary for the notary if, as in this case, he happens to be a stenographer, to take the testimony stenographically and to furnish additional copies to the parties at a charge somewhat less per hundred words than is provided in the statute. These facts are said to bring the case within the principle announced in Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749. But we think the suggested analogy does not exist. Tumey, as mayor of a city, sat as a magistrate. His judgments were final as to certain offenses, unless wholly unsupported by evidence. The law awarded him a substantial fee if he found an offender guilty, and none in case of acquittal. Tumey's interest was direct and obvious, but the possibility that the extent of the notary's services and the amount of his compensation may be affected by his ruling is too remote and incidental to vitiate his official action. Moreover, his action lacks the finality which attached to the judgment in the Tumey case, as it is subject to review . . .' Thus we conclude that there is no merit to Connally's second enumeration of error.

2. In Connally's first enumeration of error he complains that the agent's mere statement that the informer consented to the eavesdropping on the informer's telephone conversation with the defendant was insufficient to satisfy Code Ann. § 26-3006, ¹ and deprived Connally of his right to confront the witnesses against him. The government is privileged to refuse to identify its informers in order to encourage citizens to come forward with information relevant to law enforcement. Code Ann. § 38-1102; Pass v. State, 227 Ga. 730, 182 S.E.2d 779 (1971); Morgan v. State, 211 Ga. 172, 84 S.E.2d 365 (1954). Connally urges, however, that Roviaro v. U.S., 353 U.S. 53, 60, 77 S.Ct. 623, 628, 1 L.Ed.2d 639 (1957) must be read to require disclosure '(w) here the disclosure of an informer's ² identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, . . .' Since the admissions of Connally would thus be inadmissible without the informer's consent, he claims the informer's identity was 'essential to his defense' in that only the informer could refute the detective's statement that consent was given. We disagree.

Without deciding whether or not this rule is applicable to informers as well as decoys, ³ we hold that in any case, where the evidence sought from the unidentified source is required by the defendant on 'the mere possibility that the police might be impeached (it) is not enough to demand disclosure of the informer's identity.' Scull v. State, 122 Ga.App. 696, 701, 178 S.E.2d 720, 724 (1970). Accord, On Lee v. U.S., 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); U.S. v. Soles, 482 F.2d 105 (2d Cir., 1973). This is especially true where, as here, the detective's testimony that the call was placed by him from his own home, that the informer and he pulled extension phones into the hallway where the detective, with a rag over his phone,...