Van Nice v. State, s. 72189

• Decision Date: 16 July 1986
• Docket Number: 72190,Nos. 72189,s. 72189
• Parties: VAN NICE et al. v. The STATE. DUNCAN et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 515

348 S.E.2d 515

180 Ga.App. 112

VAN NICE et al. v. The STATE.

DUNCAN et al. v. The STATE.

Nos. 72189, 72190.

Court of Appeals of Georgia.

July 16, 1986.

Rehearing Denied July 31, 1986.

Certiorari Denied Oct. 9, 1986.

William O. Cox, Savannah, for appellants in No. 72189.

Noble L. Boykin, Jr., John Wright Jones, Savannah, for appellants in No. 72190.

Spencer Lawton, Jr., Dist. Atty., David T. Lock, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

In this interlocutory appeal defendants Mr. and Mrs. Duncan, Long, and brothers Delvin and David Van Nice challenge the denial of their motion to suppress wiretap evidence and motion to suppress other evidence alleged to have been seized illegally.

All defendants were charged with possession of marijuana and possession of a controlled substance, diazepam, found in an auto search. Mr. Duncan and Delvin Van Nice were also charged as recidivists. Mrs. Duncan faces additional charges relating to pills and a pistol found in her purse upon arrest: possession of controlled substances methaqualone, benzaphetamine, and temazepam; possession of dangerous drugs doxipin and diphenhydramine; carrying a pistol without a permit; carrying a concealed weapon.

Suspecting Mr. Duncan of drug trafficking activities, the Georgia Bureau of Investigation obtained from the Georgia telephone company telephone toll records of the Duncans' home phone by securing subpoenas for the production of documentary evidence although there were no related hearings, cases or grand jury investigations pending before the issuing court. The subpoenas stated: "In lieu of an appearance in Court said records may be turned over to GBI Special Agent Brad Bonnell. As this investigation is still ongoing, it is requested that said subscribers not be informed about these records." The GBI also obtained Mr. Duncan's medical records regarding his hospitalization for a gunshot wound by subpoenaing them from a Tennessee hospital, although no related cases were pending.

The information gained from the subpoenas led to the issuance of a warrant for the wiretapping of the Duncans' home telephone. Agent Bonnell's affidavit in support of the warrant recited in part, "from the information concerning the telephone numbers of documented drug violators and the analysis of the telephone toll records for the instrument located in the residence occupied by Lawrence Duncan combined with the frequency and persons contacted ... indicates that this particular phone is being utilized by Lawrence R. Duncan to further his criminal endeavors in the area of illegal drug trafficking. ..." The affidavit also contained names of those suspected of criminal involvement with Duncan, including the names of two men who had died several years prior to the date of the affidavit.

The wiretap produced a conversation between Mr. Duncan and a man who identified himself as Raoul in which Raoul advised Duncan to go to Savannah on a specified date to pick up his "order," thought to be drugs. Investigators followed Duncan and his wife to Savannah where they observed the following contact with co-defendants Delvin and David Van Nice and Long: Mr. Duncan spoke to persons traveling in a green Cadillac owned by Long. Later the Duncans drove to a K-Mart store in their blue Lincoln where they parked near the green Cadillac. Mr. Duncan left the store with Delvin Van Nice, and Van Nice drove him in the Cadillac to a private residence. Van Nice entered the residence and returned to the Cadillac, where he had in his possession a small box. He then re-entered the home. Duncan and Van Nice left the residence and went back to the K-Mart where the other defendants had remained. When defendants were returning to their respective cars, the Duncans to the Lincoln, and Long and Delvin and David Van Nice to the Cadillac, all were arrested. A pistol and pills were found in Mrs. Duncan's purse. A warrant obtained for the search of the cars uncovered marijuana and diazepam in the Cadillac's trunk, money in the Lincoln's trunk, and a weapon in the glove compartment.

72189

The appeal of defendants Delvin and David Van Nice and Long.

1. The Van Nices and Long assert that all evidence seized as a result of the wiretap must be suppressed since the wiretap was illegally issued based upon information gained through sham subpoenas and material misrepresentations by affiant.

They fail to specify whether they are asserting state or federal constitutional and/or state statutory claims. However, a review of the arguments on the motion to suppress and the cases cited on appeal reflect defendants are raising a federal Fourth Amendment argument as well as a state statutory (OCGA § 17-5-30) argument. See State v. Camp, 175 Ga.App. 591, 592-594(1), 333 S.E.2d 896 (1985).

These defendants lack standing to challenge the legality of the wiretap. " 'Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.' Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 ... 'Of course, Congress or state legislatures may extend the exclusionary rule and provide that illegally seized evidence is inadmissible against anyone for any purpose. But for [federal] constitutional purposes, ... any petitioner would be entitled to the suppression of government evidence originating in electronic surveillance violative of his own Fourth Amendment right to be free of unreasonable searches and seizures. Such violation would occur [only] if (the state) unlawfully overheard conversations of a petitioner himself or conversations occurring on his premises ...' [Cit.] ... The only [Georgia] authority for a motion to suppress is Ga.Code § 27-313 [OCGA § 17-5-30], and under the provisions of that statute a pretrial motion to suppress is available only to the person aggrieved by an unlawful search and seizure. [Cit.]" Romano v. State, 162 Ga.App. 816, 819(1), 292 S.E.2d 533 (1982). To be "aggrieved" under Georgia law, the violation must have occurred on the movants' premises or the unlawfully heard conversation must have been of the movants themselves in order to suppress the evidence. Id. Neither is the case here.

2. Challenging the admission of the marijuana and diazepam seized from the trunk of the Cadillac, defendants enumerate lack of probable cause to issue the search warrant. Once again it is unclear whether they raise a federal or state constitutional argument. A review of the argument below, however, reflects defendants base their enumeration upon the federal constitution. See State v. Camp, supra.

The affidavit in support of the warrant discussed the phone conversation in which Mr. Duncan was instructed to go to Savannah to pick up his order, the following of Duncan to Savannah, investigators' observation of various contacts and interactions between Duncan and the Van Nices, and the use of the Cadillac by Mr. Duncan and Delvin Van Nice to go to the private residence. Included also was information that a GBI agent had observed a package transferred from the private residence to the Cadillac where it was placed in the vehicle "in such a way as to indicate that it was being concealed." Noted, too, was that suspected marijuana was observed on the car's front seat in plain view as were cigarette rolling papers, "item[s] of paraphernalia utilized in the consumption of controlled substances."

Even assuming that both Van Nices and Long have standing to contest the auto search, their enumeration fails. " 'A grudging or negative attitude by reviewing courts toward warrants' ... is inconsistent with the Fourth Amendment ... [S]o long as the magistrate had a 'substantial basis for ... conclud[ing] that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more.' " Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527, 547 (1983). "[R]eviewing courts ... should apply a deferential standard of review in order to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant." State v. Fultz, 171 Ga.App. 886, 888, 321 S.E.2d 381 (1984). The affidavit in support of the warrant provided a substantial basis for concluding the auto contained evidence of wrongdoing. Accordingly, probable cause being sufficient, the trial court did not err in denying defendants' motion to suppress on this ground.

The fact that the affidavit recited that a GBI agent had observed the package transferred from the residence to the auto, where the agent's later statement was equivocal as to whether the transfer was from the house to the auto or vice versa, or whether the box originated and was left in the auto, is not fatal to the warrant. "Minor factual inaccuracies which are only peripherally relevant to the showing will not void the warrant where their presence in the affidavit is not such as to reflect on the credibility of the affiant." Dresch v. State, 125 Ga.App. 110, 112(4), 186 S.E.2d 496 (1971). See also Rugendorf v. United States, 376 U.S. 528, 532, 84 S.Ct. 825, 827, 11 L.Ed.2d 887 (1964).

3. Defendants' enumeration that probable cause was lacking to issue arrest warrants is meritless, first because there were no arrest warrants issued, and second, even if probable cause was absent at the time of their warrantless arrests, this is irrelevant to the motion to suppress at issue. As discussed in Division 2 of this opinion, there was probable cause to search the auto and a warrant was obtained, resulting in the seizure of the contraband.

72190

The appeal of Mr. and Mrs. Duncan.

1. The Duncans contend that the wiretap was illegal "in that the same was obtained through use of illegal, sham subpoenas issued in non-existent cases," and therefore all evidence obtained as a result is inadmissible under the U.S. Constitution's Fourth and Fourteenth Amendments, state statutes OCGA § 17-5-30 and OCGA § 16-11-67, and Ga. Const. 1983, Art. I, Sec. I, Par. XIII (former Ga....