Felker v. State
| Decision Date | 10 September 1984 |
| Docket Number | No. 68792,68792 |
| Citation | 172 Ga.App. 492,323 S.E.2d 817 |
| Parties | FELKER v. The STATE. |
| Court | Georgia Court of Appeals |
E. Crawford McDonald, Dalton, for appellant.
Stephen A. Williams, Dist. Atty., Steven M. Harrison, Asst. Dist. Atty., for appellee.
Richard H. Vincent, Robert N. Berg, Atlanta, amici curiae.
The appellant, a licensed physician, was convicted of possessing cocaine in violation of the Controlled Substances Act. On appeal, he contends both that licensed physicians are authorized as a matter of law to possess cocaine and that the cocaine which he was accused of possessing should have been excluded due to the alleged illegality of the search which resulted in its seizure.
Detective Jordan of the Dalton Police Department testified that the appellant had been under investigation since 1980 due to his contact with suspected drug smugglers at the Dalton airport. This contact resulted from the appellant's operation of an aviation business at the airport known as General Aviation. Asked by the state's attorney to provide "specifics of the information that you've heard about Dr. Felker in regards to this airport and drug smuggling," Jordan replied, "I have seven pages of information leading to Dr. Felker in relation to other proven known drug smugglers." The only specifics Jordan actually offered, however, were that a maintenance man formerly in the appellant's employ had been arrested and indicted by the federal government on drug charges and that certain aircraft known to have been involved in smuggling had landed at Dalton airport and had proceeded to General Aviation while the appellant was present there. Jordan ultimately denied specific knowledge of any direct involvement by the appellant in drug smuggling activities.
With regard to the events leading to the appellant's arrest, Jordan testified that on the night of January 10, 1984, he received a telephone call from a confidential informant to the effect that "the subject we had been looking for for some time was presently at the airport and him and the stuff we were looking for was there, that we needed to get out there quick." Jordan stated that he had known this informant for about 3 1/2 years and that during that time the informant had provided him with information which he (Jordan) had been able to verify. Based on the tip, Jordan and three other law enforcement officers proceeded immediately to the airport, where they observed two cars, a Datsun 280 ZX and a Volkswagen Rabbit, parked in front of the General Aviation building. The Datsun 280 ZX was recognized as having the same appearance as one belonging to the appellant. Jordan then phoned his informant to obtain "a little bit more information," and was informed specifically that the appellant "was there at General Aviation and was in possession of cocaine." In the meantime, the two automobiles under surveillance in front of the General Aviation office left the vicinity of the airport.
The appellant's car was followed and was observed shortly thereafter parked in front of his medical office, which was the scene of a gathering of several persons. The appellant was subsequently detained as he was attempting to drive away from the office. A search of his person and vehicle resulted in the discovery of a nasal spray bottle containing cocaine, as well as a straw, a surgical knife, and a pocket knife containing cocaine residue. During the course of this search, the appellant stated that he was entitled to possess cocaine and that he had more cocaine in his office. Based on this admission, a warrant was obtained for the search of his medical office. This search resulted in the discovery of three bottles in the appellant's desk drawer labeled "Cocaine, Hydrochloride Merck." Two of these bottles contained cocaine. Held:
1. We reject the appellant's apparent contention that a licensed physician is authorized under all circumstances to possess controlled substances. It is unlawful, under the Controlled Substances Act, for "any person" to possess or have under his control any controlled substance, "[e]xcept as authorized by this article." OCGA § 16-13-30(a). One such exception, created by OCGA § 16-13-35(b), is applicable to persons registered by the State Board of Pharmacy to manufacture, distribute, dispense, or conduct research with controlled substances, "to the extent authorized by their registration and in conformity with this article." (Emphasis supplied.) Pursuant to OCGA § 16-13-35(g)(2), "[p]ersons licensed as a physician, dentist, or veterinarian under the laws of the state to use, mix, prepare, dispense, prescribe and administer drugs in connection with medical treatment to the extent provided by the laws of this state" are deemed automatically to be registered by the State Board of Pharmacy to do so.
While physicians are certainly given some authority under OCGA § 16-13-35(b) and (g)(2) to possess controlled substances, we do not interpret this authority to be limitless. Rather, we read the two subsections as authorizing physicians to possess controlled substances to the extent they do so as physicians, i.e., to the extent such possession is for some use connected with their medical practice. To interpret the statute otherwise would be to give physicians carte blanche not only to possess controlled substances for their own personal, non-medical use but also to distribute them to others for non-medical use. Such was clearly not the intention of the Legislature in enacting the statute.
Though criminal statutes are to be construed strictly against the State, they are also to be construed so as to give legislative intent precedence over the literal import of words and to avoid unreasonable or illogical results. See generally Bunge v. State, 149 Ga.App. 712, 716, 256 S.E.2d 23 (1979); Mitchell v. State, 239 Ga. 3, 235 S.E.2d 509 (1977). In this case, the jury could reasonably have concluded from the State's evidence showing manner of the appellant's possession of the cocaine (viz, its presence on the two knives and the straw and in the nasal spray bottle) that it was being used for purposes unconnected with his medical practice. Consequently, we hold that the conviction was authorized by the statute.
2. It follows from the foregoing that the trial court did not err in denying the appellant's motion to quash the indictment. The indictment was proper on its face in any event, and a motion to quash or dismiss an indictment may not be predicated on extrinsic defects. See generally Walters v. State, 90 Ga.App. 360, 365, 83 S.E.2d 48 (1954); Walker v. State, 73 Ga.App. 20(1), 21, 35 S.E.2d 391 (1945).
3. The State contends that the appellant...
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... ... insufficient to establish reasonable cause for a belief ... that the appellant was currently in possession of cocaine. In the first place, there was no disclosure of the source of the informant[s'] information. [Cit.]" Felker v. State, 172 Ga.App. 492, 495(4), 323 S.E.2d 817 (1984). "[I]t is questionable ... whether the deficiency in the basis of the informant[s'] knowledge was adequately compensated by the informant[s'] previous record[s] of reliability." Rucker v. State, supra at 855, 406 S.E.2d 277. See Galgano ... ...
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...intent precedence over the literal import of words and to avoid unreasonable or illogical results. [Cits.]" Felker v. State, 172 Ga. App. 492, 493(1), 323 S.E.2d 817 (1984). I believe that the General Assembly did intend to accomplish an objective when it enacted subsection (c) of OCGA § 42......
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