Ellis v. State, s. 43607

• Decision Date: 17 February 1987
• Docket Number: 43891,Nos. 43607,s. 43607
• Citation: 353 S.E.2d 19,256 Ga. 751
• Parties: ELLIS a/k/a Booley v. STATE. ARANGUREN a/k/a Aranguren-Suarez v. STATE.
• Court: Georgia Supreme Court

Page 19

353 S.E.2d 19

256 Ga. 751

ELLIS a/k/a Booley v. STATE.

ARANGUREN a/k/a Aranguren-Suarez v. STATE.

Nos. 43607, 43891.

Supreme Court of Georgia.

Feb. 17, 1987.

Reconsideration Denied March 11, 1987.

Denmark Groover, Jr., Craig M. Childs, Groover & Childs, Macon, for Arthur Ellis, a/k/a Booley.

Walter J. Lane, Jr., Macon, for Jorge Aranguren a/k/a Aranguren-Suarez.

William B. Sparks III, Dist. Atty., Graham A. Thorpe and Sharon T. Ratley, Asst. Dist. Attys., Macon, for the State.

Lewis R. Slaton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., amicus curiae.

CLARKE, Presiding Justice.

Arthur Ellis was charged by indictment for three counts of trafficking in cocaine and one count of criminal solicitation. Co-defendant Jorge Aranguren-Suarez (hereinafter "Suarez") was charged with one count of trafficking cocaine in the same indictment. They were tried together and have filed separate appeals which we are consolidating in one opinion.

Count one charged Ellis with trafficking in that he possessed and sold more than 28 grams of cocaine on January 9, 1985. Count two involved possessing and selling more than 28 grams on February 4, 1985. Count four charges trafficking against both Ellis and Suarez in that on March 21, 1985, they delivered and brought into the state more than 200 grams of cocaine. Ellis was convicted under counts one and two and acquitted on count four as well as the solicitation count. Suarez was convicted on count four. The appeals raise issues involving evidence obtained through wiretap, failure to sever the indictment, the constitutionality of OCGA 16-13-31, and evidence of independent offenses. We affirm.

The state presented evidence that Ellis made sales of cocaine to undercover agent Michael Wheat on January 8 and February 4, 1985. The two transactions were taped by Wheat who testified at trial and the tapes were played for the jury. These sales were alleged to be of an amount in excess of 28 grams and the jury convicted Ellis of these two counts.

In early March 1985 investigating officers obtained a warrant authorization to place a wiretap on Ellis' phone and began intercepting telephone conversations. Long distance phone records showed repeated calls between Ellis and a restaurant in Miami, Santos Suarez, run by appellant, Suarez. The agents learned through the wiretap that "George" was coming to Macon from Miami by bus on March 21, 1985, to deliver cocaine to Ellis. The voice of Suarez was never overheard or recorded.

Agents followed Ellis on March 21, 1985, to the Greyhound bus station. Appellant Suarez got off the bus and approached Ellis. The men were joined by a woman, Blanca Borreal. The three of them then entered a truck driven by Ellis and were intercepted by drug agents. An amount of cocaine in excess of 200 grams was seized. The cocaine was being carried by Borreal and she testified for the state at trial that Suarez had given her the cocaine in Miami and paid her $500 to carry the drugs on the bus.

1. On Counts one and two Ellis was sentenced to 30 years with a $50,000 fine and 20 years with a $50,000 fine. Suarez was convicted under count four and as sentenced to 30 years and a $50,000 fine.

Each of the appellants contends that OCGA § 16-13-31(f), which provides for a maximum sentence of 30 years for a conviction of trafficking in cocaine, is unconstitutional in that the law when enacted violated Article III, Sec. V, Para. III of the Georgia Constitution. This paragraph provides "No bill shall pass which refers to more than one subject matter or contains matter different from what is expressed in the title thereof." Subsection (f) was added as an amendment in Ga.L. 1982, p. 2215. The appellants complain that the purpose of the law is stated in terms of amending OCGA § 16-13-31 including the setting of "mandatory minimum terms of imprisonment", and therefore the setting of maximum sentences of up to 30 years in the body of the act is constitutionally invalid. The constitutional prohibition is not violated so long as the subjects included in a law have a connection with and are related to the objectives set forth in the title. Mullis v. Southern Co. Services, 250 Ga. 90, 296 S.E.2d 579 (1982). Lee v. State, 239 Ga. 769, 238 S.E.2d 852 (1977). We find that setting a maximum sentence does not conflict with the preamble which refers to minimum sentences, and hold that subsection (f) is logically related to the purposes of the act.

2. Ellis and Suarez both contend the court erred in failing to suppress evidence which they allege was obtained as a result of an illegal wiretap.

On January 24, 1985, several weeks prior to obtaining the wiretap warrant, an instrument known as a pen register, or dialed number recorder, was installed to record the numbers called from Ellis' telephone. The appellants contend the warrant obtained in March was tainted by use of information recorded by the pen register which was installed without a warrant in violation of OCGA § 16-11-64 because it is a device covered by OCGA § 16-11-60; 16-11-62.

OCGA § 16-11-64 covers interception of wire or oral transmissions by law enforcement and provides in part "[W]hen in the course of his official duties, a law enforcement officer desiring to make use of any device, but only as such term is specifically defined by Code Section 16-11-60 and such use would otherwise constitute a violation of Code Section 16-11-62, the law enforcement officer shall act only in compliance with the procedure provided for in this subsection." OCGA § 16-11-64(b).

As used in this statutory scheme a "device" is "an instrument or apparatus used for overhearing, recording, intercepting, or transmitting sounds or for observing, photographing, recording, or transmitting visual images and which involves in its operation electricity, electronics, infrared, laser or similar beams ..." OCGA § 16-11-60(1). The issue is whether the pen register is a "device" as defined.

To install the instrument in question, a hookup was made at the telephone junction box in Mr. Ellis' neighborhood. At the box the wires for the phone are isolated and a hookup is made. This transmitting equipment is connected to a phone in the office of the investigating officers. The dialed number recorder is attached to the line which is in effect an extension of the targeted phone. This instrument shows when the caller's phone is taken off the hook and then it records and prints out the number being dialed and shows the time the phone goes back on the hook. An officer involved in the investigation testified that once a wiretap warrant is obtained, the only instruments added to the equipment in place are tape recorders.

The United States Supreme Court concluded in Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), that the installation and use of a pen register was not a search as contemplated by the Fourth Amendment and did not require a warrant. The issue here is not whether the installation of the pen register offends the constitution, either state or federal, but whether it offends the Georgia statute.

The state argues that following Evans v. State, 252 Ga. 312, 314 S.E.2d 421 (1984), and United States v. New York Telephone Co., 434 U.S. 159, 98 S.Ct. 364, 54 L.Ed.2d 376 (1977), no warrant should be necessary under state law for the installation of a pen register. In New York Telephone Co., supra, the court held that a pen register does not fall within the scope of Title III of 18 U.S.C. § 2510, et seq., which governs orders "authorizing or approving the interception of a wire or oral communication ..." 18 U.S.C. § 2518. The court relied on statutory language defining intercept as the "aural acquisition of the contents of any wire or oral communication." The state takes the position that the Georgia statute is similar in defining a device as something "used for overhearing, recording, intercepting, or transmitting sounds. " OCGA § 16-11-60, and argues that Evans holds that the only device requiring a warrant is the tape recorder.

Evans presented the issue of whether an inductor coil placed in a telephone junction box was a "device" under OCGA § 16-11-60 in order to determine if the court which had in fact issued a warrant for electronic surveillance had jurisdiction over the phone lines in question. The pen register and tape recorder were at the listening post in Fulton County; the inductor coil was located outside the county. We held the coil was not a device under the statute but was used "to prevent detection of those devices being used to overhear and record defendants' conversations, which devices were physically located in Fulton County." Evans, supra 252 Ga. at 318; 314 S.E.2d 421.

Unlike the federal wiretap law the Georgia law is not defined in terms of acquiring the contents of a conversation or wire, but is defined in terms of devices which overhear, record or transmit sounds. At the time of the enactment of the wiretap law the General Assembly stated "It is the public policy of this State and the...