Staton v. State
| Decision Date | 19 November 1982 |
| Docket Number | No. 64933,64933 |
| Parties | STATON v. The STATE. |
| Court | Georgia Court of Appeals |
Richard C. Hagler, James A. Elkins, Jr., Columbus, for appellant.
William J. Smith, E. Mullins Whisnant, Dist. Attys., J. Gray Conger, Asst. Dist. Atty., Columbus, for appellee.
The defendant, William Staton, Jr., appeals his conviction of a violation of the Georgia Controlled Substances Act. Held:
1. It is alleged that the trial court improperly denied the defendant's motion to suppress. We do not agree. Detective Traino, Columbus Narcotic Squad, received a telephone call from a confidential informant who had not previously provided him with information leading to an arrest or conviction. The informant stated only that "a black male by the name of 'Dobie' was behind the Seventh Avenue Apartments and that he was selling heroin." Traino proceeded to a location near the Seventh Avenue Apartments and saw the defendant, William "Dobie" Staton, and several other persons behind Staton's mother's apartment. A man approached the group and spoke to defendant who went to another apartment--approximately two doors down from his mother's apartment and dug up something out of the ground. It was a brown paper sack. Although the police were observing this through binoculars all they could detect was that defendant removed something from the sack and then buried the sack again in the same location. Defendant walked back to the recently arrived person and handed him something. They saw a flash of green but could not tell if it was money. Later the police observed another person arrive and one of the men in defendant's group went over to the same area, dug up the bag, removed something, placed the bag back in the ground and covered it with dirt. The men then transferred something between them and the last person left. The police called in backup police support and then arrested the defendant and went to the area where the brown paper sack was buried. It was two apartments down from defendant's mother's apartment. They found a glassine bag inside the brown paper sack. It was turned over to the Crime Lab and determined to contain nine small bags of heroin and under one ounce of marijuana.
The officer testified that defendant was not living in the apartment where the contraband was buried in the back yard. On that day he knew that defendant lived at 7C River Wind Apartments approximately two to three miles away. The officer had served a search warrant on him in his apartment three weeks prior to this incident. His clothing and belongings were in that apartment. The trial court denied the motion to suppress and gave as one of the grounds that this defendant had no legal basis for complaint because it was not his premises that was searched. On appeal counsel argues the contraband "would appear to be within the curtilage of the apartment" --hence, requiring a warrant to search. We do not reach this issue--but see Bunn v. State, 153 Ga.App. 270(2), 265 S.E.2d 88.
The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously. Rakas v. Illinois, 439 U.S. 128(1), 99 S.Ct. 421, 58 L.Ed.2d 387. And, an individual who claims he is aggrieved by an illegal search and seizure only through the introduction of evidence secured by a search of a third person's premises has not had any of his Fourth Amendment rights infringed. Id. The defendant had no legitimate claim to any expectation of privacy in the premises searched and may not now assert a valid claim of illegal search and seizure. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633; Wisdom v. State, 234 Ga. 650, 653, 217 S.E.2d 244.
2. The defendant enumerates as error the charge of the court on intent, which stated, inter alia--"Intent may be shown in many ways ... it may be presumed when it is the natural and necessary consequences of the acts." This exact charge was approved by this court in Vaughn v. State, 159 Ga.App. 883, 285 S.E.2d 573 and a similar charge was approved by the Supreme Court in Adams v. State, 246 Ga. 119, 122(3), 269 S.E.2d 11.
3. Imposition of the maximum sentence for possession of heroin is claimed to be error. Defendant argues that "the trial court misunderstood that it must sentence [defendant] to serve the maximum allowable time in the penitentiary and that it could not consider allowing [the defendant] to serve a portion of his sentence on probation." We do not find the record to support the contention placed upon the trial court's words.
Defendant was indicted under the general recidivist statute Code Ann. § 27-2511 (). The indictment cited one prior felony conviction for possessing a controlled substance. Under Code Ann. § 79A-811(c) () the maximum punishment authorized was not less than 5 years or more than 30 years. "As a second offender under the Habitual Offender Act [Code Ann. § 27-2511], one convicted must receive...
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