Willis v. State

• Citation: 122 Ga.App. 455,177 S.E.2d 487
• Decision Date: 15 September 1970
• Docket Number: No. 45478,No. 3,45478,3
• Parties: John S. WILLIS v. The STATE
• Court: United States Court of Appeals (Georgia)

Page 487

177 S.E.2d 487

122 Ga.App. 455

John S. WILLIS v. The STATE.

No. 45478.

Court of Appeals of Georgia, Division No. 3.

Sept. 15, 1970.

Syllabus by the Court

On a warrant for the search of a designated apartment, its tenants, and others present who may reasonably be involved in the use, possession and sale of illegal drugs, based on an affidavit showing that the premises have been under surveillance and frequented by known drug users together with other information concerning the sale of drugs on the premises, it is not unreasonable to search persons found in a room with the tenants at the time of the search to whom it would have been possible for the persons named in the warrant to pass on the evidence for the purpose of concealment, since a thorough search of the premises would otherwise be impossible.

Appellant was convicted under the Georgia Drug Abuse Act of possessing 44 LSD tablets. He was present in the apartment of Larry and Connie Franklin when it was searched under a search warrant directing the officers to search the apartment, the Franklins, and 'any other person on said premises who reasonably might be involved in the commission of the aforesaid violation of the laws of Georgia.' The violation alleged was possession of illegal drugs, the basis of the probable cause requirement being stated as follows: 'I have received information from a reliable and confidential informer whose information has proven reliable and correct and had led to several arrests concerning narcotics in the past 6 months, that she was present at 858 Charles Allen Dr., #2 on Oct. 17, 1969, where she did observe drugs being used and stored as well as sold to persons by Larry and Connie Franklin. Based on this information we placed this location under surveillance Oct. 20-21, 1969, and did observe known drug abusers entering and leaving this apartment.'

The Franklins, the defendant, and another person were in the living room at the time of entry. The three men were searched and the tablets found in a plastic bag in the defendant's pocket. He appeals from the conviction and the denial of his motion to suppress the evidence resulting from the search.

Albert M. Horn, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joel M. Feldman, Tony H. Hight, Atlanta, for appellee.

DEEN, Judge.

Under what circumstances can peace officers, under a warrant to search named persons and their premises, search other persons found in the vicinity? Code Ann. § 27-309 states the purposes as (a) to protect themselves from attack, and (b) to prevent the disposal or concealment of any instruments, articles or things particularly described in the warrant. The testimony in this case makes it fairly obvious that (a) was not involved. Does (b) mean that all persons on the premises searched may, if the warrant so directs, be searched as a matter of course or must there be some additional evidence that would indicate probable cause for believing the articles are being concealed? A general warrant is of course void. By definition it is 'one which does not sufficiently specify the place or the person to be searched.' De Angelo v. State, 199 Md. 48, 85 A.2d 468. In Saunders v. State, 199 Md. 568, 87 A.2d 618, it was held that a warrant identifying premises and authorizing a search of 'all persons found in the premises or who may enter the premises' invalidated the warrant as to persons present where there was nothing to connect them with the gambling operation, but in view of defendant's 'obvious participation' she had no cause to complain of the search of her person. Hernandez v. State, (Tex.Crim.App.) 437 S.W.2d 831, held a warrant not defective where is authorized 'other person or persons unknown to affiant' who might be found on the premises, but he appellant in fact disclosed and claimed the heroin. State v. Fox, 283 Minn. 176, 168 N.W.2d 260, held that the evidence was illegally obtained from the defendant's person, where the warrant apparently authorized only a search of premises and the defendant, who was on the premises, was not an owner or occupant. That warrant seems not to have had an 'other persons' clause. From these and similar cases it may be concluded that a warrant which identifies the premises and its owners or occupants is not void as a general warrant because it authorizes the search of other persons found there who may reasonably be involved in the commission of the crime for which the warrant is issued. However, if one is unlawfully searched, the fact that incriminatory matter is found on him will not render the search legal....