Smoot v. State
| Decision Date | 18 July 1925 |
| Docket Number | (No. 4584.) |
| Citation | 128 S.E. 909,160 Ga. 744 |
| Parties | SMOOT. v. STATE. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
Error from City Court of Griffin; J. A. Darsey, Judge.
Ada Smoot was convicted of resisting an officer, and she brings error. Reversed.
Byars & Wood and Cleveland & Goodrich, all of Griffin, for plaintiff in error.
W. H. Connor, Sol., of Griffin, for the State.
RUSSELL, C. J. Ada Smoot was tried upon an accusation charging her with the offense of resisting an officer. The provisions of section 311 of the Penal Code are as follows:
"If any person shall knowingly and willfully obstruct, resist, or oppose any officer of this state, or other person duly authorized, in serving or attempting to serve or execute any lawful process or order, or shall assault or beat any officer, or person duly authorized, in serving or executing any process or order aforesaid, or for having served or executed the same, he shall be guilty of a misdemeanor."
The defendant was convicted. She moved for a new trial, her motion was overruled, and she excepted. The case was transmitted to the Court of Appeals; but, as it became apparent upon the investigation of the record by that court that the decision depended upon the construction of article 1, § 1, par. 16, of the Constitution of this state, the Court of Appeals has transferred the writ of error to this court under the provisions of article 6, § 2, par. 5, of the Constitution, which gives to the Supreme Court exclusive jurisdiction "in all cases that involve the construction of the Constitution of the state of Georgia or of the United States."
In the trial of the case at bar the plaintiff in error objected to the introduction in evidence of the affidavit made to obtain a search warrant, and of the search warrant issued under said affidavit, upon various grounds; but these objections were overruled, and the affidavit and search warrant were introduced in spite of the objections. Theexceptions to the overruling of these objections present the leading assignment of error in the case, since the accusation against the plaintiff in error alleged that the resistance and obstruction to the officer occurred while he was acting under a lawful search warrant, and it was for this reason vital to the state's case that it be shown that the warrant was a lawful warrant. We shall deal only with two of the numerous objections which were offered in the trial, when the affidavit and warrant were tendered in evidence, as follows:
"Because said warrant was issued without probable cause, supported by oath or affirmation, and was issued in violation of article 1, § 1, par. 16, of the Constitution of the state of Georgia, which provides that 'no warrant shall issue except upon probable cause, supported by oath or affirmation.' "
And:
Stated otherwise, the question raised by these two objections to the introduction of the warrant which the trial judge admitted in evidence is whether, under the provisions of article 1, § 1, par. 16, of the Constitution, a lawful search warrant can be issued where the-"prohable cause" does not appear, either in the affidavit or in the warrant, and the warrant is issued entirely upon the affidavit, which merely contains the conclusion of the affiant that in his opinion there is probable cause for the issuance of the warrant, but no expression of any kind in the warrant itself that the judicial officer who issued it is himself of the opinion that there is probable cause? The affidavit and warrant are as follows:
The warrant explicitly states that it is issued only because of "the foregoing affidavit." The affidavit is based only upon the statements of the affiant that:
"He has reason to believe that a quantity of intoxicating liquor [is] in the dwelling house * * * of Ada Smoot, * * * and verily believes upon probable cause that the intoxicating liquor [is] kept in violation of the laws of the state of Georgia."
It is thus apparent, from the face of the papers to which objection was made, that there was no judicial consideration of any evidence other than the affidavit, and it is apparent from the affidavit that no fact which would have afforded the basis for a legal conclusion of probable cause was before the court—nothing but the mere statement of the affiant that he verily believed there was probable cause. The wording of the section of the Constitution which permits the issuance of a search warrant forbids the issuance of such warrant unless there are facts constituting probable cause submitted to the magistrate for his judicial determination, and these must be supported by oath or affirmation. It is another and quite a different thing for the court to delegate to the affiant and prosecutor the authority to determine by his opinion of probable cause whether the warrant should issue. Article 1, § 1, par. 16, of our Constitution no doubt followed the Fourth Amendment to the Constitution of the United States, which provides:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath, or affirmation, particularly describing the place or places to be searched, and the persons or things to be seized."
As is pointed out by Mr. Justice Bradley in Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746, it no doubt had its origin in the determination of the framers of the amendments to the federal Constitution to provide for that instrument a Bill of Rights, securing to the American people, among other things, those safe guards which had grown up in England to protect the people from unreasonable searches and seizures, such as were permitted under the general warrants issued under authority of the government, by which there had been invasions of the home and privacy of the citizens, and the seizure of their private papers in support of charges, real or imaginary, made against them. Such practices had also received sanction under warrants and seizures under the so-called writs of assistance, issued in the American colonies. Resistance to these practices had established the principle, which was enacted into the fundamental law in the fourth amendment, that a man's house was his castle, and not to be invaded by any general authority to search and seize his goods and papers. In the Boyd Case, after citing Lord Camden's judgment in En-tick v. Carrington, 19 How. St. Tr. 1029, Mr. Justice Bradley said (116 U. S. 630 ):
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