Evans v. State

• Decision Date: 15 March 1984
• Docket Number: No. 40008,40008
• Citation: 252 Ga. 312,314 S.E.2d 421
• Parties: EVANS et al. v. STATE.
• Court: Georgia Supreme Court

Page 421

314 S.E.2d 421

252 Ga. 312

EVANS et al. v. STATE.

No. 40008.

Supreme Court of Georgia.

March 15, 1984.

Rehearing Denied March 28, 1984.

Theodore S. Worozbyt, William A. Morrison, Jones & Worozbyt, Atlanta, for Walter Lee Evans, et al.

Lewis R. Slaton, Dist. Atty., H. Allen Moye, Asst. Dist. Atty., Atlanta, Michael J. Bowers, Atty. Gen., for the State.

PER CURIAM.

Appellants were convicted in Fulton Superior Court of violating the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Act, Ga.L.1980, pp. 405, 407, Code 1933, § 26-3402(a)(17) (now OCGA § 16-14-3(3)(A)(xviii) ), based on predicate offenses of commercial gambling, OCGA § 16-12-22 (Code Ann. § 26-2703). On appeal they raise three enumerations of error.

1. In their first enumeration appellants contend that the court erred by refusing to grant their motions to suppress the fruits of electronic surveillance conducted by appellee.

The evidence at trial showed that Walter Lee Evans participated with numerous others in a lottery ring operating in the metropolitan Atlanta area which involved gambling on the volume of stocks and bonds traded on the New York Stock Exchange. ¹ The evidence was obtained pursuant to twelve surveillance (wiretap) warrants issued by a Fulton Superior Court judge upon application by the Fulton County district attorney. The defendants do not contest the fact that there was probable cause for the issuance of the warrants, nor do they contest the fact that the venue of the offenses was Fulton County. The defendants urge that the warrants were invalid because the Fulton district attorney and superior court judge were without authority to apply for and issue surveillance warrants as to telephones located outside Fulton County (i.e., outside the Atlanta Judicial Circuit).

The first warrant was issued for two telephones located at an address in Fulton County. The second warrant was issued shortly thereafter for three phones also located in Fulton County. Based upon information obtained from the preceding wiretaps, subsequent warrants were issued as to phones in DeKalb County (Stone Mountain Judicial Circuit), then Clayton County (Clayton Judicial Circuit), then Cobb County (Cobb Judicial Circuit), then Cherokee (Blue Ridge Judicial Circuit), then Rockdale County (then the Stone Mountain Judicial Circuit), then Paulding County (Tallapoosa Judicial Circuit), then Gwinnett County (Gwinnett Judicial Circuit), and finally Henry County (Flint Judicial Circuit), not to mention other phones located in Fulton County (Atlanta Judicial Circuit). In all, 41 telephones were tapped, of which 23 were located in 7 judicial circuits other than the Atlanta Judicial Circuit, pursuant to warrants sought and obtained in Fulton County.

In order to discuss the issues involved in this case, it is necessary to describe in some detail the equipment used for the surveillance. The Fulton district attorney's surveillance team worked out of a rented motel room near the intersection of Sylvan Road and Interstate 85, in Hapeville, Fulton County (the "listening post"). The initial step in the installation of each of the wiretaps was to present the court order authorizing the wiretap to the telephone company, which then selected an "appearance point" and informed the investigators of its location. An "appearance point" was a site, located at some point between the telephone to be tapped and the telephone company central switching office servicing it, where the line to be tapped, also known as the "subscriber line", converged with another telephone line running to the central switching office, with the latter line being leased to the district attorney (the "leased line"). All of the appearance points assigned for the surveillances involved in this case were located in neighborhood junction boxes, also known as terminal boxes, which (for purposes of this appeal) were located in the same county as the telephone to be tapped.

The evidence showed that the simplest method of installing a tap would have been to proceed to the junction box and to use jumper wires to connect the terminals, otherwise known as binding posts, of the subscriber line to the terminals of the line leased to the district attorney. Such an apparatus would have conducted the electronic signal of the tapped phone conversation over the leased line to the central switching office, and thence to the listening post in Fulton County. However, this arrangement would have presented a serious risk of detection by criminal suspects, because it would have caused a drop in voltage measurable by equipment available to commercial gamblers. To forestall detection, an inductor coil/jumper wire, placed in the neighborhood terminal box, and a control unit, located at the listening post, were used.

Sgt. John Woodard, a nine-year veteran of the Atlanta Police Department who has taken several courses in physics and electricity, testified that he installed the surveillance equipment used in this case. He testified that the inductor coil/jumper wire is a piece of equipment consisting essentially of two magnetic coils and four lead wires. He said that his installation procedure was to go to the junction box servicing each subscriber phone, open it, and locate the terminals for the subscriber phone and the leased line. He would then connect two lead wires of the inductor coil to the subscriber phone's terminals, and the remaining lead wires to the leased phone's terminals.

Woodard testified that the surveillance team's listening post in Hapeville contained three pieces of equipment: the control unit, a computerized pen register, and a tape recorder. He said that, after the inductor coil was installed, surveillance was initiated by dialing a telephone number assigned to the district attorney by the telephone company. Calling this number activated the inductor coil by sending electrical current through it. According to Woodard, whenever the tapped phone was taken off the hook, the signal from that telephone passed through the inductor coils to the leased line. This signal then was conducted over the leased line to the telephone switching office, and from there to the listening post in Hapeville. (According to Woodard, wiretaps using inductor coils and control units do not drain a measurable amount of voltage from subscriber lines.)

There was additional testimony by Woodard that when the signal reached the listening post, it passed through the control unit to the computerized pen register, and then to the tape recorder. The function of the pen register was to record on paper tape the date and time that the tapped phone was taken off the hook; whether the call was incoming or outgoing; if outgoing, the number dialed; and the time the call ended. The tape recorder aurally recorded the conversation on magnetic tape.

The primary issue raised by the first enumeration of error is whether the Fulton district attorney was authorized by federal and state law to apply for surveillance warrants for the telephones which were located outside of Fulton County and whether the Fulton Superior Court judge was statutorily authorized to issue them. If not, the evidence obtained by such extraterritorial warrants should be suppressed. 18 U.S.C.A. § 2515; OCGA § 16-11-67 (Code Ann. § 26-3007).

To start, we must emphasize that the issues in this case are not merely ones of interpretation of state statutes. Instead, as pointed out by the Court of Appeals in Cox v. State, 152 Ga.App. 453(1), 263 S.E.2d 238 (1979), "In 1968 the Congress enacted the Omnibus Crime Control and Safe Streets Act, a portion of which dealt with the interception and disclosure of wire or oral communications. 18 U.S.C. § 2510 et seq. [18 USCA Ch. 119]. The act set down procedures whereby federal authorities could secure an authorization for wiretaps. It further provided for concurrent state regulation of wiretaps subject, at the minimum, to the requirements of the federal legislation...." Cox, supra, 152 Ga.App. at 454, 263 S.E.2d 238. "Georgia has enacted such a statute and the wiretaps at issue in the instant case were made pursuant to this Georgia statute. [OCGA § 16-11-64 (Code Ann. § 27-3004).] Which law, state or federal, controls? '[D]espite the fact that the interceptions were made pursuant to a state court authorization, at the very least the other requirements of Title III [of the Omnibus Crime Act] ... must be satisfied. But whether the proceedings be federal or state, interpretation of a state wiretap statute can never be controlling where it might impose requirements less stringent than the controlling standard of Title III. If a state should set forth procedures more exacting than those of the federal statute, however, the validity of the interceptions and the orders of authorization by which they were made would have to comply with that test as well. [Cits.]' United States v. Marion, 535 F.2d 697, 702 (2d Cir.1976) [cits]. Thus, '[w]iretapping and surveillance are the subjects of federal and state law and both must be complied with where applicable.' Orkin v. State, 236 Ga. 176, 179, 223 S.E.2d 61 (1976). (Emphasis supplied.)" Cox, supra, 152 Ga.App. at 455, 263 S.E.2d 238. "In other words, for evidence obtained through state-authorized wiretaps to be admissible in a state criminal proceeding, it must have been obtained in a manner not inconsistent with the requirements of both the federal and state laws." Id. at 455-456, 263 S.E.2d 238.

The Omnibus Crime Control Act, 18 U.S.C.A. § 2516(2), provides: "The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire or oral communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of...