State v. Guhl

• Decision Date: 28 September 1976
• Docket Number: No. 3,Nos. 52542-52544,s. 52542-52544,3
• Citation: 230 S.E.2d 22,140 Ga.App. 23
• Court: Georgia Court of Appeals
• Parties: The STATE v. A. C. GUHL. T. F. MITCHELL v. The STATE. The STATE. v. T. F. MITCHELL

Page 22

230 S.E.2d 22

140 Ga.App. 23

The STATE v. A. C. GUHL.

T. F. MITCHELL v. The STATE.

The STATE. v. T. F. MITCHELL.

Nos. 52542-52544.

Court of Appeals of Georgia, Division No. 3.

Sept. 28, 1976.

Rehearing Denied Oct. 19, 1976.

Randall Peek, Dist. Atty., Leonard W. Rhodes, Thomas O. Duvall, Jr., Asst. Dist. Attys., Decatur, for the State.

Donald A. Weissman, Atlanta, for Mitchell.

William H. Cate, Atlanta, for Guhl.

WEBB, Judge.

In May, 1975 an investigative grand jury was empaneled in DeKalb County pursuant to Ga.L.1975, pp. 48, 51 (Code Ann. § 59-602B). Superior Court Judge Clyde W. Henley, an assistant district attorney and several investigators were assigned to supervise and assist the grand jury in accordance with the statute. The investigative grand jury was charged to investigate several matters relating to county affairs, including allegations made against the appellee Tymon F. Mitchell that he had taken money and other things of value in return for favors for certain people doing business with the county. Its investigation did not involve matters of illegal electronic surveillance until December, 1975, when it indicted Mitchell and A. C. Guhl for invasion of privacy based upon numerous tape recordings and equipment seized pursuant to a search warrant issued on October 17, 1975. Mitchell was Guhl's executive assistant and all but two items seized were in Mitchell's office. The search warrant was supported by the affidavits of six persons and the sworn statement of the district attorney, and was issued by Judge Henley. Mitchell and Guhl filed motions to suppress evidence attacking the search warrant. After a lengthy hearing the court overruled that portion of the motion which alleged that the affidavits showed on their face that there was no violation of Code Ann. § 26-3001 and thus no probable cause for the issuance of a search warrant, and sustained the part of the motion asserting that the issuing magistrate did not act in a neutral and detached manner, disengaged from activities of law enforcement. The state appeals from the ruling suppressing the evidence and Mitchell cross appeals from the holding that there was probable cause for the issuance of a search warrant.

1. In considering the Fourth Amendment protections against unreasonable searches and seizures, the most basic constitutional rule is that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions." Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 2032, 29 L.Ed.2d 564 (1971) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576). However, 'The substance of the Constitution's warrant requirements does not turn on the labeling of the issuing party. The warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause to believe that a crime has been committed and that the person or place named in the warrant is involved in the crime. Thus, an issuing magistrate must meet two tests. He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search. This Court long has insisted that inferences of probable cause be drawn by 'a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' (Cit.)' Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 2122, 32 L.Ed.2d 783 (1972). The issue here is whether the evidence presented at the hearing was sufficient to justify the conclusion that the issuing magistrate had such an affiliation with law enforcement as to disqualify him per se from issuing the search warrant in question.

Judge Henley, who issued the warrant in question, personally empanelled and charged the special investigative grand jury which indicted the appellees. He met both formally and informally with members of the grand jury and discussed testimony and other matters with them, including the fact that he was conferring with the district attorney. He received, discussed and passed on to the district attorney information pertinent to the grand jury's assigned duties, one of which was to investigate allegations concerning Mitchell. He helped the district attorney set up the grand jury's budget. He gave the assistant district attorney and staff investigators suggestions and directives concerning handling witnesses, whom to call as witnesses, persons to be interviewed by staff investigators, areas of investigative inquiry, sources of information, investigative technique, the advisability of issuing indictments, and the particular investigation of Mitchell. He discussed and conferred with the district attorney and staff investigators in regard to grand jury testimony and functions on a frequent, if not daily, basis. He negotiated and ultimately granted immunity to persons who testified before the grand jury as to alleged misdeeds of Mitchell. He expressed unfavorable opinions of the honesty and credibility of both appellees to the assistant district attorney, staff investigators and others, and specifically stated that he 'considered (Mitchell) to be a crook.' There was also evidence that Judge Henley advised Mitchell and Guhl that it was legal for them to secretly record conversations in which they were participants.

The evidence abundantly authorized the conclusion that Judge Henley had become so affiliated with the district attorney's investigatory and prosecutorial functions with the special investigative grand jury as to warrant his disqualification. See, Baggett v. State, 132 Ga.App. 266, 208 S.E.2d 23 (1974); Hawkins v. State, 130 Ga.App. 277, 202 S.E.2d 837 (1973); but see Connally v. State, 237 Ga. 203, 227 S.E.2d 352 (1976).

2. The cross appeal presents a question of law. The Georgia Criminal Code prohibits and makes it an unlawful invasion of privacy for 'any person in a clandestine manner to intentionally . . . record . . . the private conversation of another which shall originate in any private place.' Code Ann. § 26-3001(a). Exceptions are contained in Code Ann. §§ 26-3004 for a warrant, and 26-3006 which recites that nothing in § 26-3001 shall prohibit the recording of a message 'when the sender and receiver thereof shall expressly or impliedly consent thereto or in those instances wherein the message shall be initiated or instigated by a person and the message shall constitute the commission of a crime or is directly in the furtherance of a crime, provided at least one party thereto shall consent.' (Emphasis supplied.)

Mitchell bases the contentions of his cross appeal upon the construction of those provisions made by this court in Cross v. State, 128 Ga.App. 837(1), 198 S.E.2d 338 (1973), that 'The prohibitions of Code Ann. § 26-3001 on 'Unlawful Eavesdropping and Surveillance' relate to one who is not a party to the conversation.' He argues that since he was a party to all the conversations under indictment no invasion of privacy occurred and there was thus no probable cause for issuance of the search warrant.

In Cross the defendant was indicted for bribery. He filed a motion to suppress evidence of the alleged crime that had been obtained from a conversation with a police officer wearing a concealed electronic transmitting device on his body. Two...