Johnson v. State, 41211

• Decision Date: 10 March 1965
• Docket Number: No. 2,No. 41211,41211,2
• Citation: 111 Ga.App. 298,141 S.E.2d 574
• Parties: Eloise JOHNSON v. The STATE
• Court: Georgia Court of Appeals

Page 574

141 S.E.2d 574

111 Ga.App. 298

Eloise JOHNSON v. The STATE.

No. 41211.

Court of Appeals of Georgia, Division No. 2.

March 10, 1965.

Syllabus by the Court

1. (a) When authorized to do so by statute the deputy clerk of a municipal court may issue a search warrant.

(b) Where neither the affidavit nor the search warrant issued pursuant thereto recites facts upon which a determination of the existence of probable cause could be made, and the State fails to show what facts were made to appear under oath before the magistrate who issued the warrant, the warrant is void and any entry or search made under it is illegal.

(c) When neither the affidavit nor the search warrant issued pursuant thereto discloses what facts were submitted to the magistrate for the showing of probable cause, and admission of the warrant into evidence is objected to on that ground, the burden of showing what facts were submitted under oath to the magistrate is on the State, and failure to carry that burden renders the warrant void and inadmissible.

2, 3. Evidence procured in connection with a search made under an illegal warrant is inadmissible unless it appears that a crime was being committed in the presence of the officer and that the search was incidential to an arrest therefor.

Jimmy F. Herring, a member of the Police Department of Columbus, made affidavit before L. W. McIntyre, Deputy Clerk of the Municipal Court of Columbus, that he had probable cause to believe that James Wyatt and others might be found in a house at 1501 Third Avenue in Columbus and sought the issuance of a search warrant in order that 'any persons found therein may be searched, and any adultry-fornication found therein may be seized' (sic). At the same time he made affidavit that he had probable cause to believe that James Wyatt might be found in a house at 1501 Third Avenue in Columbus and sought the issuance of a search warrant in order that 'said premises and any person found therein may be searched, and any dangerous drugs found therein may be seized.' Upon these affidavits two search warrants were issued, each reciting in the printed form thereof that 'J. F. Herring having made oath before me, and evidence submitted to me to show probable cause that __________ in a dwelling house and the outhouse adjacent thereto located at 1501 3rd Ave., Columbus, Georgia. You are hereby commanded to enter said described premises and make a diligent search of both the premises and any persons found therein for said (property, illegal whiskey, law violation), and if you find the same then bring the said (property, illegal whiskey, evidence of law violation) together with all persons found therein criminally connected before the undersigned officer, of some other judicial officer of said County to be dealt with as the law directs.'

Officer Herring delivered the two search warrants to Lt. John Chapman of the Police Department and he, together with Detective Baker, went to 1501 Third Avenue about 1:30 a. m. and sought admission to the house by knocking on the door and calling for the door to be opened. There was no response and Lt. Chapman forced the door whereupon he and Detective Baker walked into the bedroom finding George McGrotha, about 47 years old, and Hazel Green, about 39, asleep in bed together. Lt. Chapman shook McGrotha, roused him and exhibited the search warrants. Nothing was found in the room where McGrotha and the woman were sleeping, but it was observed that another room was locked with a padlock at one entrance and the other sealed off by the placing of a long bookcase in front of the door. The bookcase was moved and the officers entered that room, finding James Wyatt and Eloise Johnson in bed sleeping together. They were roused and when Wyatt sat up in bed he was informed by the officers that they had a search warrant and wished to search the room, whereupon he told them to look anywhere they wished. A search was started and Officer Chapman observed that Eloise Johnson 'moved from the bed and she was drawing her hand back--putting something under the cover and she pulled the spread around her.' Lt. Chapman spoke to her: 'Eloise, give me those tablets.' She replied, 'I haven't got anything Lieutenant.' He asked her to move, and when she did 'you could hear something rattling,' so she was asked to get up and put on her clothes. Her clothing was handed to her and she dressed under the cover, then got out of bed. At that point she and Wyatt were placed under arrest for disorderly conduct. As the officers started out with them it was observed that Eloise walked with her legs close together, making short steps, and Lt. Chapman spoke to her: 'Eloise, you just as well drop those tablets.' As she walked a rattle could be heard, as something in a bottle, and just before they reached the door a small green bottle rolled from under her clothes to the floor. It was labeled 'Titrolac, for relief of gastric hyperacidity,' and contained 45 white tablets. Lt. Chapman picked the bottle from the floor and later sent it to the State Crime Laboratory where one of the tablets was analyzed and found to be a morphine derivative. The following night, about 24 hours from the time of the arrest, Lt. Chapman had Eloise brought from her cell into a room at the Police Department where suspects are interviewed and after questioning her some 30 to 45 minutes she stated to him that she had obtained the tablets from a friend, but refused to name the friend. Lt. Chapman testified that no threats were made against her, no offer of or hope for reward held out to her and that her statement was freely and voluntarily made, that she had made no request for counsel, and that although none was made available she was not denied the privilege.

She was indicted and convicted for the unlawful possession of narcotics. To the overruling of her amended motion for new trial she excepts.

Dan Copland, Columbus, for plaintiff in error.

W. B. Shipworth, Jr., Solicitor Gen., Columbus, for defendant in error.

EBERHARDT, Judge.

1. In special ground 1 error is assigned upon the admission of the search warrant for 'dangerous drugs' over the objection that neither the affidavit upon which the warrant issued nor the warrant itself disclosed any of the facts upon which it was based, that no judicial determination could have been made of the existence of probable cause upon the recitals in them and that the Deputy Clerk of the Municipal Court of Columbus, not being a judicial officer, could make no judicial determination of the existence of probable cause and had no authority to issue the warrant. In special ground 3 error is likewise assigned upon the admission of the search warrant for 'adultry-fornication' (sic).

(a) First, we must dispose of the question of whether the deputy clerk could issue a valid warrant, for if he could not the warrants would be void regardless of what evidence may have been before him or what recitals made in the affidavits and warrants.

The Municipal Court of Columbus was created by Ga.L.1952, pp. 2184, et seq. Section 22 of the Act, at p. 2194, provides:

'Be it further enacted by the authority aforesaid, that the clerk of said court and the deputy clerks of said court shall have complete power and authority, co-existent and co-ordinate with the power of the judge of said court under the provisions of this Act, to issue any and all warrants, civil or criminal, summary processes and writs which are issuable as a matter of right; to accept and approve bonds and to discharge any and all other functions, ministerial in character, which under the laws of this State are performable by a justice of the peace.'

Nothing in Art. I, Sec. I, Par. XVI (Code Ann. § 2-116) of the Constitution of 1945 ¹ or the statutory provisions of Code Ch. 27-3 specifies who shall have authority or jurisdiction to issue a search warrant. At common law justices of the peace had general power to issue search warrants for stolen goods. Jones v. German, 2 QB 418; 1 QB 374; 24 Eng.Rul.Cas. 1, Anno. p. 10. So long as a judicial determination of the existence of probable cause is made, as required by the rule of Smoot v. State, 160 Ga. 744, 128 S.E. 909, 41 A.L.R. 1533, there is no constitutional inhibition against designation by the General Assembly of persons other than a justice of the peace for doing it. The statute creating the Municipal Court of Columbus sufficiently clothes the clerk and deputy clerks with the powers of a magistrate to issue criminal warrants. Search warrants are criminal in nature, having no relation to civil process and are unavailable to an individual for the maintenance of a mere private right. People ex rel. Robert Simpson Co. v. Kempner, 208 N.Y. 16, 101 N.E. 794, 46 L.R.A.,N.S., 970. Though not himself a judge or magistrate, there is no reason why the deputy, being clothed with the power to do it, cannot make a judicial determination as to the existence of probable cause. Absent the statutory power he could not do it, but the power is one that the legislature may, in its wisdom, lodge in any person whom it may choose. Ormond v. Ball, 120 Ga. 916, 921, 48 S.E. 383.

(b) We now pass to a consideration of whether the warrant was otherwise valid. A search warrant may be issued only for the making of a search authorized at common law or by statute. 4 Wharton, Criminal Law & Procedure (1957) § 1548, p. 173; Sugarman v. State, 173 Md. 52, 195 A. 324; White v. Wager, 185 Ill. 195, 57 N.E. 26, 50 L.R.A. 60. However, no question is raised here as to whether the search to be made under these warrants was authorized either at common law or by some statute.

It is urged that the affidavit upon which the warrant issued was wholly insufficient in that no facts were stated in it upon which a determination of the existence of probable cause could be made. Certainly, since no facts of any kind were stated in the affidavit, it was deficient in this respect. While probable cause may...