Wood v. State
| Decision Date | 07 March 1968 |
| Docket Number | No. 24463,24463 |
| Citation | 224 Ga. 121,160 S.E.2d 368 |
| Parties | James Ivan WOOD v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. Section 9 of the 1966 Search and Seizure Act (Ga.L.1966, pp. 567, 570; Code Ann. § 27-309) does not offend the Fourth Amendment of the Constitution of the United States, which prohibits unreasonable searches and seizures.
2. It was not error to deny the motion to suppress evidence obtained from a person in the commission of a crime, and incident to the arrest for that crime.
3. The admission of evidence of the commission of prior crimes, wholly distinct, independent, and separate from that for which the defendant was on trial, was error, since the evidence did not come within any exception to the rule that evidence of the general character of the defendant and his conduct in other transactions is irrelevant unless he has chosen to put his character in issue. Code § 38-202.
Charles R. Smith, Atlanta, for appellant.
Lewis R. Slaton, Sol. Gen., William E. Spence, Hinson McAuliffe, Frank A. Bowers, Atlanta, for appellee.
The defendant was tried in the Criminal Court of Fulton County for violating Code § 26-6502, in that he 'did keep, maintain, and operate a lottery, known as the number game, for the hazarding of money,' and was convicted and sentenced. A petition for certiorari to the Superior Court of Fulton County was filed, and writ of certiorari issued. On consideration of the record, the judge of the superior court denied the petition for certiorari, and refused to grant a new trial. From this judgment the defendant appealed, enumerating as error: (1) the denial of his petition for certiorari on the ground that the ruling was contrary to law; (2) the denial of his motion to suppress certain evidence; and (3) the holding that Section 9 of Ga.L.1966, pp. 567, 570 (Code Ann. § 27-309) is constitutional.
1. The motion to suppress sought to suppress as evidence purported lottery paraphernalia seized from Margaret Wood on a stated date and at a stated time, when the automobile which the defendant was driving, and in which Margaret Wood was a passenger, was stopped and the material was seized from the person of Margaret Wood under a search warrant.
(A) It has been argued by counsel for the State that the defendant is not a person aggrieved by the search and seizure of the lottery paraphernalia from Margaret Wood, because on the trial he disclaimed any right of possession of the papers seized. In Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697, it was held: 'In order to qualify as a 'person aggrieved by an unlawful search and seizure' one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.' The evidence which the defendant seeks to suppress was obtained during the execution of a search warrant authorizing the search of his person and automobile, and he would be a person aggrieved by the search, if it should be held to be unlawful.
(B) It was asserted in the motion to suppress that the search and seizure under the warrant were illegal because Section 9 of Ga.L.1966, pp. 567, 570 (Code Ann. § 27-309) is void and in violation of the Fourth and Fourteenth Amendments of the Constitution of the United States (Code §§ 1-804, 1-815), in that such section authorizes a search of the persons of citizens of the United States and of the State of Georgia without probable cause and without particularly describing the person to be searched or the articles to be seized.
Code Ann. § 27-309 provides: 'In the execution of the warrant the person executing the same may reasonably detain or search any person in the place at the time: (a) To protect himself from attack, or (b) To prevent the disposal or concealment of any instruments, articles or things particularly described in the warrant.'
The Fourth Amendment of the Constitution of the United States guarantees: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'
The section of the 1966 Act attacked by the motion to suppress deals only with the execution of the warrant, and does not purport to deal with the necessary elements of probable cause and particularity in the description of the persons to be searched and the articles to be seized. In Section 3 of the Act (Code Ann. § 27-303) it is provided that search warrants may be issued on the written complaint of an officer charged with the duty of enforcing the criminal laws, under oath or affirmation, 'which states facts sufficient to show probable cause that a crime is being committed, or has been committed, and which paricularly describes the place or person, or both, to be searched and things to be seized, * * *.' It is only after these necessary requirements are met that the warrant may be issued and the search instituted. There is therefore no merit in the contention that Code Ann. § 27-309 authorizes the search of persons without probable cause and without describing the articles to be seized.
(C) In support of the contention that Code Ann. § 27-309 is unconstitutional because it allows the search of persons not particularly described in the warrant, the defendant cites United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210, wherein the Supreme Court of the United States held: 'By mere presence in a suspected car, (a person does not) lose(s) immunities from search of his person to which he otherwise would be entitled.'
Code Ann. § 27-309 allows the search of persons not particularly described in the search warrant only where the executing officer may reasonably believe that it is necessary (1) to protect himself from attack, or (2) to prevent the disposal or concealment of items particularly described in the warrant. A search for these purposes is permitted as an incident of a lawful arrest without a search warrant. Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777.
Code Ann. § 27-309 does not offend the Fourth Amendment of the United States Constitution because it allows the search of persons not particularly described in the search warrant for the limited purposes permitted.
2. The motion to suppress further contended that the search and seizure in the present case were illegal because the search warrant authorized a search of any other person on the premises who reasonably might be involved in the violation of the laws of Georgia, and did not particularly describe the other person to be searched, contrary to the Fourth and Fourteenth Amendments of the United States Constitution, and Art. I, Sec. I, Par. XVI (Code Ann. § 2-116) of the Constitution of Georgia; and because there was not...
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