State v. Anderson

• Decision Date: 03 October 1995
• Docket Number: No. A95A1268,A95A1268
• Citation: 218 Ga.App. 643,463 S.E.2d 34
• Parties: The STATE v. ANDERSON et al.
• Court: Georgia Court of Appeals

Page 34

463 S.E.2d 34

218 Ga.App. 643

The STATE v. ANDERSON et al.

No. A95A1268.

Court of Appeals of Georgia.

Oct. 3, 1995.

Certiorari Granted Feb. 5, 1996.

J. Tom Morgan, District Attorney, Gregory J. Lohmeier, Assistant District Attorney, for appellant.

Steven T. Maples, Victoria D. Little, Decatur, for appellees.

BIRDSONG, Presiding Judge.

The State has taken a direct appeal under OCGA § 5-7-1 of the trial court's order excluding evidence obtained by electronic surveillance because the evidence later was the subject of an unauthorized publication. Anderson and other co-defendants were allegedly involved in a bookmaking/gambling operation. The State properly obtained authorization to conduct electronic surveillance of the defendants' telephones and allegedly obtained information showing that Anderson and the others were participating in unlawful gambling operations. During the investigation, a DeKalb County police officer requested the assistance of an IRS agent in analyzing the materials obtained during the electronic surveillance.

Subsequently, Anderson and the others moved to suppress the information obtained in the electronic surveillance because the information was improperly published to the IRS agent contrary to OCGA § 16-11-64(b)(8). The trial court granted this motion because it found that the State allowed the IRS agent to listen to the tapes and the IRS agent then used the information obtained to prepare a separate, unrelated tax assessment against one of the co-defendants. The State then filed a direct appeal. Anderson and other defendants concerned with the appeal have filed a motion to dismiss the State's appeal because they contend the ruling by the trial court is not subject to direct appeal. Held:

1. The initial consideration is this Court's jurisdiction to consider the State's appeal. Anderson and the co-defendants contend this Court is without jurisdiction because the State has filed an unauthorized direct appeal. The basis for the motion is that the trial court considered their motion to suppress as a motion in limine and granted it not because the evidence was improperly seized, but because the evidence was improperly disclosed. Consequently, they contend this case does not fall within the category of cases in which the State is authorized to file a direct appeal.

Under our law, the State is authorized to appeal in five specific instances; only one of those instances is applicable here. Under OCGA § 5-7-1(4) the State is authorized to appeal an order, decision, or judgment sustaining a motion to suppress evidence that is illegally seized. Of course, our Supreme Court has construed this provision to allow the State to appeal the grant of a defendant's pre-trial motion, whatever the name of the motion, to exclude evidence because it was obtained in violation of law. State v. Strickman, 253 Ga. 287, 288, 319 S.E.2d 864. The purpose of this rule is to allow errors that might work miscarriages of justice to be corrected on appeal. Id.

In this appeal, however, Anderson contends that State v. Strickman is inapplicable because the trial court did not exclude the evidence because it was obtained in violation of the law. Instead, he maintains the appeal should be dismissed because the trial court excluded the evidence because it was disclosed in violation of the law. In the context of this appeal, however, we find this distinction without meaning. In an appeal concerning OCGA § 16-11-67 (admissibility of evidence obtained in violation of part), our Supreme Court held that "to protect against tampering, alteration, or destruction of evidence, and against allegations of such conduct, 'obtained' necessarily includes both the gathering and the safeguarding of the evidence." Williams v. State, 265 Ga. 471, 457 S.E.2d 665.

We find no reason to treat "obtained" in State v. Strickman/OCGA § 5-7-1(4) differently from "obtained" in the OCGA § 16-11-64(b)/OCGA § 16-11-67 context. The basis for excluding this wiretap evidence was that it was disclosed in violation of the law under which the evidence was obtained. In this sense, OCGA § 16-11-64(b) authorizes the interception of wire or oral transmissions by law enforcement officers only under certain conditions. One of these conditions is that there shall be no publication of the information obtained "other than that necessary and essential to the preparation of and actual prosecution for the crime specified in the warrant." OCGA § 16-11-64(b)(8). Any violation of this non-publication rule renders the wiretap an invasion of privacy and causes the "evidence and information to be inadmissible in any criminal prosecution." Id. Under these circumstances, a violation of this non-publication rule violates the conditions under which the wiretap was obtained and renders the information obtained in the wiretap inadmissible because it was illegally obtained insofar as the evidence or information that was illegally published is concerned. See Ledesma v. State, 251 Ga. 885, 889, 311 S.E.2d 427.

As this appeal requires the trial court to consider whether the evidence the defendants...