Thomason v. State, 56807

CourtUnited States Court of Appeals (Georgia)
Citation251 S.E.2d 598,148 Ga.App. 513
Docket NumberNo. 56807,56807
PartiesTHOMASON et al. v. The STATE.
Decision Date19 December 1978

Cook & Palmour, Bobby Lee Cook, Sr., Summerville, Kinney, Kemp, Pickell, Avrett & Sponcler, F. Gregory Melton, Dalton, for appellants.

Charles A. Pannell, Jr., Dist. Atty., James E. Bethel, Asst. Dist. Atty., for appellee.

WEBB, Judge.

Ronnie and Linda Thomason appeal from their convictions of violating the Controlled Substances Act (Code Ann. 79A-801 et seq.), complaining of the denial of the motion to suppress evidence and other similar rulings. We reverse.

An officer appeared before justice of the peace McKeehan for the purpose of obtaining a search warrant and, after its issuance, Judge McKeehan and eight officers, together with a dog named "Satan," combined in several automobiles, one of which was owned by Judge McKeehan, and converged upon the Thomason's residence at 1 a. m. While the search was in progress Judge McKeehan moved about observing the procedure and the items being seized, conversing with the officers as well as with Linda Thomason, and remaining for 11/2 hours until the search was concluded, whereupon he prepared arrest warrants for the Thomasons.

We find this impermissible. As we recently held, "(t)he rule under the Fourth Amendment that a warrant be issued by a neutral and detached magistrate requires severance and disengagement from activities of law enforcement." Baggett v. State, 132 Ga.App. 266, 208 S.E.2d 23 (1974), citing Shadwick v. City of Tampa, 407 U.S. 345, 92 S.Ct. 2119, 32 L.Ed.2d 783 (1972), and applying the per se rule of disqualification of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

While the State contends that the instant case is saved from the operation of the rule by evidence that Judge McKeehan went along on this raid to determine whether there was probable cause for the issuance of additional search warrants, we need consider this contention no further since it appears from the record that this was not an isolated incident but part of an ongoing practice. To our minds this so conveys the impression that Judge McKeehan had "thrown in" with officers of the law as to negate any possibility of a finding of "severance and disengagement from activities of law enforcement" (Shadwick v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 2123, 32 L.Ed.2d 783, supra), and the trial court erred in so ruling. Accord, State v. Guhl, 140 Ga.App. 23, 230 S.E.2d 22 (1976).

Judgment reversed.

BELL, C. J., DEEN, and QUILLIAN, P. JJ., and SMITH, SHULMAN, BANKE and BIRDSONG, JJ., concur.

McMURRAY, J., dissents.

McMURRAY, Judge, dissenting.

Law enforcement officers executing a search warrant of defendants' home discovered quantities of marijuana, phenobarbital, cocaine, phentermine, amobarbital and secobarbital. Defendants were subsequently indicted, tried, convicted and sentenced for multiple violations of the Georgia Controlled Substances Act. The majority holds that the search of defendants' home was conducted pursuant to a search warrant issued by a justice of the peace whose conduct has demonstrated that he was not a neutral and detached magistrate at the time of issuing such search warrant.

Pursuant to stipulation the motion to suppress was decided by the trial court on the basis of the search warrant, the record of the preliminary hearing and an affidavit submitted by the justice of the peace who issued the search warrant. The testimony at the preliminary hearing revealed that the justice of the peace accompanied law enforcement officers when they went to defendants' home to execute the search warrant. The justice of the peace remained outside in his automobile until the premises had been secured, at which time he came into the house and stayed until the search was completed. The justice of the peace stayed back out of the way, moving about the home with other law enforcement officers as necessary to vacate a portion of the home to facilitate searches for drugs by the canine named Satan. After the search was completed the justice of the peace accompanied the law enforcement officers to the Whitfield County Correctional Center. There the itemized return on the search warrant was made to the justice of the peace.

The affidavit submitted by the justice of the peace shows that during the conversation with the law enforcement officers regarding the issuance of the search warrant in this case the officers discussed with the justice of the peace the fact that several vehicles were located at the defendants' residence and they had information that possibly one or more of these vehicles contained contraband. The justice of the peace determined that there was not enough evidence to issue a search warrant for those vehicles, and the law enforcement officers then asked him to accompany them to the defendants' home so that if sufficient probable cause was determined by an on the scene investigation a search warrant for a particular vehicle could be issued. The justice of the peace agreed to accompany law enforcement officers for this purpose but did not take any active part whatsoever in the search and did not question anyone at the home about anything that was going on.

The majority concludes that the justice of the peace was not a neutral and detached magistrate because he had "thrown in" with officers of the law so as to negate...

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11 cases
  • Lockett v. State
    • United States
    • Mississippi Supreme Court
    • 30 Septiembre 1987
    ...involvement in the search is forbidden. See Lo-Ji, 442 U.S. at 328, 99 S.Ct. at 2325, 60 L.Ed.2d at 929-30; Thomason v. State, 148 Ga.App. 513, 251 S.E.2d 598, 599 (1978). However, a magistrate who goes to the scene, issues a warrant and remains there for some time does not abdicate his pro......
  • People v. Lowenstein
    • United States
    • Court of Appeal of Michigan — District of US
    • 9 Noviembre 1982
    ...the search was declared invalid because it had not been issued by a "neutral and detached" magistrate. See also Thomason v. State, 148 Ga.App. 513, 251 S.E.2d 598 (1978). Next, the magistrate (or judge) must disqualify himself if he had a pecuniary interest in the outcome. The United States......
  • Tabb v. State
    • United States
    • Georgia Supreme Court
    • 12 Noviembre 1982
    ... ... Mere personal associations with police officers, without more, do not disqualify a magistrate from issuing a search warrant. See Sanders v. State, supra, 151 Ga.App. at 592, 260 S.E.2d 504. This case is different from Thomason v. State, 148 Ga.App. 513, 251 ... S.E.2d 598 (1978), where the officer who issued the warrant took part in the actual search and seizure of evidence. There is no evidence of such misconduct by Judge Reeves in this case ...         Factual and credibility determinations made by a trial ... ...
  • State v. Holloway, 8323SC116
    • United States
    • North Carolina Court of Appeals
    • 21 Febrero 1984
    ...more, do not disqualify a magistrate from issuing a search warrant." Id. The court distinguished an earlier case, Thomason v. State, 148 Ga.App. 513, 251 S.E.2d 598 (1978), "where the officer who issued the warrant took part in the actual search and seizure of evidence," saying, "[t]here is......
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