Morgan v. Kiff
| Decision Date | 15 March 1973 |
| Docket Number | No. 27458,27458 |
| Citation | 230 Ga. 277,196 S.E.2d 445 |
| Parties | Grady MORGAN v. C. P. KIFF. |
| Court | Georgia Supreme Court |
Grady Morgan, pro se.
Arthur K. Bolton, Atty. Gen., Atlanta, for appellee.
Syllabus Opinion by the Court
This appeal is from a habeas corpus judgment remanding the appellant to custody. During the pendency of this appeal, the appellant has been paroled and is now serving the balance of his sentence on parole. However, that fact does not moot the appeal, because still prevailing are the balance of the sentence to be served on parole, and the conditions attached to parole, which if violated would result in reconfinement.
In his habeas corpus application the appellant attacked his conviction on the ground that it was procured through the introduction and use of evidence at the trial which was obtained by the state in violation of his Fourth Amendment rights.
The appellant was convicted of violating the Uniform Narcotic Drug Act of Georgia-the unlawful possession of marijuana.
The record shows that law enforcement officers in Atlanta received information from a law enforcement officer in California that a package addressed to one Grady Morgan and believed to contain marijuana had been shipped by air express and would arrive at the Atlanta Airport in due course. No other information concerning the informer, the source of the tip, or corroborating circumstances with respect to the informant or the reliability of the tip appears in the record.
On the basis of this information the Atlanta officers went to the Atlanta Airport and awaited the arrival of the package. Upon the arrival of the package they examined its contents and determined that it did in fact contain marijuana. They then awaited for someone to call for the package which the appellant did several hours later. Appellant signed for the package, took it to his automobile, and was then arrested by the officers.
At his trial the appellant contended that he did not have any knowledge of the contents of the package, that he did not have any criminal intent of possessing marijuana, and that he had been inveigled into accepting delivery of the package without having any knowledge whatsoever that it contained marijuana.
The package of marijuana was introduced in evidence, and the officers testified to the facts as related above concerning the arrival of the package, the examination of the package, the appellant's calling for and accepting delivery of the package, and the arrest of the appellant. No motion was made to suppress this evidence, and no objection was made to its introduction at the trial.
A jury found the defendant guilty, and his conviction was affirmed on appeal to the Court of Appeals of Georgia. 120 Ga.App. 454, 170 S.E.2d 835 (1969). However, in none of these proceedings was the search of the package, the arrest of the appellant, and the seizure of the package attacked on constitutional grounds.
We therefore have a situation where the constitutional attack is made for the first time in an application for the writ of habeas corpus.
Our habeas corpus statute (Code Ann. § 50-127(1)) provides in part as follows:
This statute was patterned on language contained in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and the necessity for such a statute relating to waiver was confirmed in 1969 by the decision of the Supreme Court of the United States in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
In the case of Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965), with respect to waiver of a substantive Federal Constitutional claim, the Supreme Court of the United States said: ...
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State v. Matthews, Cr. N
...package shipped by air express and opened without a warrant by police who resealed it and later arrested the recipient (Morgan v. Kiff, 230 Ga. 277, 196 S.E.2d 445 (1973); Williams v. State, Supra), to the contents of a locker in a bus terminal (United States v. Durkin, 335 F.Supp. 922 (S.D......
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Alderman v. State
...could have raised the Doyle issue on habeas corpus notwithstanding the absence of a contemporaneous objection. Morgan v. Kiff, 230 Ga. 277, 279, 196 S.E.2d 445 (1973); Jacobs v. Hopper, 238 Ga. 461(1) (2), 233 S.E.2d 169 (1977); Clark v. Smith, 224 Ga. 766(5), 164 S.E.2d 790 (1968), revd 40......
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Berry v. State
...... Henry Lorenzo Berry was stopped while driving on Interstate 20 by a City of Conyers Police Officer, Ken Morgan. Officer Morgan operated the canine (K 9) unit. The defendant was stopped for driving a car with a dealer drive out paper tag. After the stop, ...See Morgan v. Kiff, 230 Ga. 277, 196 S.E.2d 445 (1973), overruled on separate grounds, Jacobs v. Hopper, 238 Ga. 461, 463, 233 S.E.2d 169 (1977) . Because the trial ......
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Jones v. State, 58314
...Aguilar v. Texas, supra. See also United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744, 13 L.Ed.2d 684 and Morgan v. Kiff, 230 Ga. 277, 196 S.E.2d 445 (1973). The court arrived at the above conclusion thusly. "An evaluation of the constitutionality of a search warrant should beg......