Luangkhot v. State

• Decision Date: 07 May 2012
• Docket Number: A11A2146,A11A2281.,Nos. A11A1688,s. A11A1688
• Citation: 313 Ga.App. 599,722 S.E.2d 193,12 FCDR 253
• Parties: LUANGKHOT v. The STATE.Saleumsy v. The State.Phommachanh v. The State.
• Court: Georgia Court of Appeals

12 FCDR 253

313 Ga.App. 599

722 S.E.2d 193

LUANGKHOT

v.The STATE.Saleumsy

v.The State.Phommachanh

v.The State.

Nos. A11A1688

A11A2146

A11A2281.

Court of Appeals of Georgia.

Jan. 18, 2012.Certiorari Granted May 7, 2012.

K. Julie Hojnacki, Atlanta, Bruce Steven Harvey, for appellant (case no. A11A2146).

Garland, Samuel & Loeb, John A. Garland, for appellant (case no. A11A2146).

David D. Marshall, for appellant (case no. A11A2281).Daniel J. Porter, Dist. Atty., Rodney Keith Miles, Asst. Dist. Atty., for appellee.MILLER, Judge.

Khamone Luangkhot, Isaac Saleumsy, and Santisouk Phommachanh (collectively, “Defendants”), along with approximately 35 defendants, were charged in multiple indictments arising out of a single investigation involving charges of trafficking in ecstasy, conspiracy to traffic in ecstasy, and conspiracy to possess ecstasy with intent to distribute.¹ Each Defendant filed a motion to suppress the evidence obtained from intercepted telephone conversations resulting from a series of wiretap warrants, extensions, and amendments. Among other grounds, the motions challenged the validity of the wiretap warrants on the basis that the trial court lacked jurisdiction to issue them. The trial court denied Defendants' motions, finding that Gwinnett County was the proper jurisdiction and venue for the crimes being investigated, thereby authorizing Gwinnett County Superior Court judges to issue the foregoing wiretaps under Georgia's wiretap statute, OCGA § 16–11–64.

This Court granted Defendants' applications for interlocutory appeal and subsequently consolidated the three appeals. On appeal, Defendants seek reversal of the trial court's orders denying their motions to suppress, contending that the wiretap warrants, extensions, and amendments were not authorized under Georgia's wiretap statute. We disagree.

While the trial court's findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review.

(Citations and punctuation omitted.) Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474 (1994). Because the parties do not dispute the facts relevant to the motions to suppress, we will conduct a de novo review of the trial court's rulings on Defendants' motions to suppress.

The record shows that in early 2007, state and federal officers assigned to the Atlanta High Intensity Drug Trafficking Area task force (“Atlanta HIDTA”) received information from a confidential informant regarding an ecstasy distribution ring operating in and around Gwinnett County. Based on phone number information provided by the informants, recordings of phone calls between the informants and the targeted suspects, as well as surveillance of several controlled buys of ecstasy from the targeted suspects in Gwinnett County, the Gwinnett County District Attorney obtained a series of 25 investigative warrants, extensions, and amendments from Gwinnett County Superior Court judges authorizing wiretaps of numerous telephone lines. Because Atlanta HIDTA was conducting the investigation, the monitoring station was located at the Atlanta HIDTA office in Fulton County. The actual interceptions occurred in the “wire room” of the Atlanta HIDTA office. The warrants, extensions, and amendments resulted in the interception of a number of Defendants' communications, all of which they subsequently moved to suppress.

On appeal, Defendants do not dispute that the Gwinnett County Superior Court judges had both subject matter jurisdiction and venue over the crimes for which they were indicted. Rather, Defendants contend that the wiretap warrants, extensions, and amendments in this case were not authorized under the state wiretap statute, because both the listening post and the physical location of the intercepted phones were located outside Gwinnett County. The State, on the other hand, contends that the state wiretap statute authorized the Gwinnett County Superior Court judges to order the wire intercepts because they had jurisdiction over the crimes being investigated. We agree with the State.

Georgia's wiretap statute provides, in relevant part, that

[u]pon written application, under oath, of the prosecuting attorney having jurisdiction over prosecution of the crime under investigation, or the Attorney General, made before a judge of superior court, said court may issue an investigation warrant permitting the use of such device, as defined in Code Section 16–11–60, for the surveillance of such person or place to the extent the same is consistent with and subject to the terms, conditions, and procedures provided for by Chapter 119 of Title 18 of the United States Code Annotated, as amended.

OCGA § 16–11–64(c). It is well-established that “[w]iretapping and surveillance are the subjects of federal and state law[.]” (Citation, punctuation and footnote omitted.) North v. State, 250 Ga.App. 622, 623(1), 552 S.E.2d 554 (2001). Accordingly, “[f]or 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.” (Citation, punctuation and footnote omitted.) Id. Moreover, “Georgia law must meet the minimum standards of federal law in protecting privacy but may impose more stringent requirements” otherwise. (Citation, punctuation and footnote omitted.) Id.

Defendants' interpretation of OCGA § 16–11–64(c) relies primarily upon the federal wiretap statute, 18 USC § 2518(1), (3), which provides that “a judge of competent jurisdiction ... may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting[.]” (Punctuation omitted; emphasis supplied.) According to Defendants, the language of 18 USC § 2518(3) imposes a “territorial jurisdiction” upon Georgia superior court judges that is limited to the county in which the judge sits, and that therefore the Gwinnett County Superior Court judges in this case could not issue wiretap warrants for interceptions occurring beyond the bounds of Gwinnett County.² Defendants' reliance upon federal authority in this particular instance, however, is misplaced. Significantly, the “territorial jurisdiction” language of 18 USC § 2518(3) relates to that of federal court judges issuing wiretap warrants pursuant to the federal wiretap statute—not to state court judges issuing wiretap warrants pursuant to a state wiretap statute. To that end, “it is clear that Congress intended that state law would define the ‘territorial jurisdiction’ of each state court.” (Footnote omitted.) Adams v. Lankford, 788 F.2d 1493, 1500(B) (11th Cir.1986).³ The Eleventh Circuit in Adams reasoned that the flexibility built into 18 USC § 2518(3) “implicitly delegate[d] to the states the job of defining the territorial parameters of [such] section.” (Punctuation omitted.) Id. at 1499(B).

Thus, we turn to the language of OCGA § 16–11–64(c), rather than the federal statute, to determine the scope of an issuing superior court judge's territorial jurisdiction. We believe the legislative history of OCGA § 16–11–64(c) is illustrative on this point. The pre–2000 version of Georgia's wiretap statute included a territorial restriction that authorized “upon written application, under oath, of the district attorney of the circuit wherein the device is to be physically placed, or the Attorney General, ... any judge of the superior court of the circuit aforesaid may issue an investigation warrant permitting the use of [the interception] devices....” (Punctuation omitted; emphasis supplied.) OCGA § 16–11–64(b)(1) (1999). This territorial restriction, however, was eliminated in 2000, at which time the General Assembly amended the wiretap statute so that it provided, in relevant part, that “upon written application, under oath, of the district attorney having jurisdiction over the prosecution of such crime, or the Attorney General, ... any judge of the superior court having jurisdiction of such crime may issue an investigation warrant permitting the use of [the interception] devices....” (Punctuation omitted; emphasis supplied.) OCGA § 16–11–64(b)(1) (2000); see also Ga. L. 2000, p. 491, § 2. The wiretap statute was last amended in 2002, and currently provides an issuing superior court judge with a more expansive jurisdictional authority-that is, “[u]pon written application, under oath, of the prosecuting attorney having jurisdiction over prosecution of the crime under investigation, or the Attorney General, made before a judge of superior court, said court may issue an investigation warrant permitting the use of such [interception] device....” (Punctuation omitted; emphasis supplied.) OCGA § 16–11–64(c) (2002); see also Ga. L. 2002, p. 1432, § 3.

Despite the changes OCGA § 16–11–64(c) has undergone, Defendants nevertheless rely upon the Supreme Court of Georgia's Evans case, which was decided when the pre–2000 version of the wiretap statute was in effect. Defendants specifically point to the Evans language providing “that the jurisdictional provision of the federal law, 18 USCA § 2518(3), confers jurisdiction on a superior court judge to authorize interception (aural acquisition) of wire communications within his territorial jurisdiction.” (Punctuation omitted.) Evans v. State, 252 Ga. 312, 317(1), 314 S.E.2d 421 (1984). In light of the subsequent statutory amendments that have broadened the scope of a superior court judge's territorial jurisdiction, however, this ruling in Evans is no longer controlling.

Currently, the plain language of the wiretap statute places a territorial limitation...