Scott v. State

• Decision Date: 16 July 1970
• Docket Number: No. 45461,No. 3,45461,3
• Parties: Herbert B. SCOTT v. The STATE
• Court: Georgia Court of Appeals

Page 481

176 S.E.2d 481

122 Ga.App. 204

Herbert B. SCOTT v. The STATE.

No. 45461.

Court of Appeals of Georgia, Division No. 3.

July 16, 1970.

Syllabus by the Court

1. Where peace officers entered the defendant's residence armed with two arrest warrants and a search warrant, arrested the defendant and searched the premises, certain articles in plain view having strong evidentiary value as to the crimes charged were not subject to a motion to suppress although not specifically named in the search warrant.

2. The question of whether a witness whose presence in the courtroom is requested by the district attorney on the ground that he is needed to advise on the prosecution of the case may remain after the rule of sequestration is invoked is one largely within the discretion of the trial judge.

3. Since the affidavit on which a search warrant issues may be based on hearsay, it is not error, where the signatory is questioned a § a witness as to his reason for making the affidavit, to allow him to repeat the information therein contained, as against the sole objection that such information is hearsay.

4. The evidence amply supports the verdict.

Police officers entered the premises of H. B. Scott armed with a valid (a) arrest warrant for criminal abortion, (b) arrest warrant for practicing medicine without a license, and (c) a search warrant for 'certain sharp instruments and scissors along with certain pills, tablets and capsules, any further description unknown, used in performing an abortion which (are) (is) contraband and/or illegal.' Defendant on the subsequent trial of the abortion case moved to suppress certain articles seized under these warrants at the time of the arrest, including a stethoscope, baumanometer (for taking blood pressure), certificate purporting to be a license to practice medicine in the defendant's name, College of Swedish Massage diploma, pictures on the wall showing anatomical diagrams, and certain books and telephone directories.

The motion was denied, the jury returned a verdict of guilty, and the defendant appeals from the overruling of his motion for new trial.

Benjamin R. Martin, Jr., Woodbine, A. A. Nathan, Brunswick, for appellant.

W. Glenn Thomas, Dist. Atty., Jesup, for appellee.

DEEN, Judge.

1. The main thrust of this appeal is directed to the contention that under the mandate of the Fourth Amendment, as also under Code § 27-303, the search warrant must particularly describe the things to be seized as otherwise it would be a mere general warrant and void; that from this it follows that items not described in the warrant do not come within its ambit and their introduction in evidence is reversible error. We do not have the problem discussed in Strauss v. Stynchcombe, 224 Ga. 859(2), 165 S.E.2d 302 where the question was whether the warrant was too broad and left to the officers' arbitrary determination whether or not to take the defendant's personal records. Nor have we the problem posed by Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, where the search warrant authorized the seizure of materials used in an illegal wagering business, and the officers after protracted investigation of moving picture films determined that they contained obscene matter and prosecuted for the latter offense. Neither can the warrant be ignored on the basis that the articles were properly seized even without a warrant based on a search incident to a lawful arrest. Whatever the previous rule, it is settled in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.E.2d 685 that, except under exigent and unusual circumstances, the search incident to arrest can be held reasonable only for the purposes of preventing the defendant from access to a weapon or evidence which he may be desirous of destroying, and this usually limits the search to the defendant's person and clothing, and that very narrow area surrounding him where he might reach even though under restraint. Certainly it would not include a room other than the room in which he was located.

The law is less clear where, in the process of an otherwise legal search of the premises for certain instrumentalities of crime (in this case, drugs and surgical instruments used in performing illegal abortions) the officers find exposed in plain view other articles which also constitute instrumentalities or evidence of the crime for which probable cause has been shown in the issuance of the warrant. It has many times been recognized that officers are not required to ignore that which is in plain view and readily observable (Strauss v. Stynchcombe, 224 Ga. 859, 165 S.E.2d 302, supra; State v. Brant, 260 Iowa 758, 150 N.W.2d 621, 625; State v. Dillwood, 183 Neb. 360, 160 N.W.2d 195; State v. Twitty, 18 Ohio App.2d 15, 246 N.E.2d 556, 559) and that their seizure under these circumstances does not make them the fruit of an unlawful search, since, being in plain view, no search is involved. Here, of course, the search was lawful and it is the seizure-or the introduction in evidence as...