Opinion
33080.
DECIDED OCTOBER 26, 1950.
Maintaining gambling house; from Savannah City Court — Judge Heery. March 15, 1950.
Spence M. Grayson, Ernest J. Haar, for plaintiff in error.
Andrew J. Ryan Jr., Solicitor-General, Sylvan A. Garfunkel, Herman W. Coolidge, contra.
1. "In a prosecution in a State court for a State crime, the Fourteenth Amendment of the Federal Constitution does not forbid the admission of relevant evidence even though obtained by an unreasonable search and seizure.
"( a) Arbitrary intrusion into privacy by the police is prohibited by the Due Process Clause of the Fourteenth Amendment.
"( b) While the doctrine of Weeks v. United States, 232 U.S. 383, making evidence secured in violation of the Fourth Amendment inadmissible in federal courts is adhered to, it is not imposed on the States by the Fourteenth Amendment." Wolf v. Colorado, 338 U.S. 25 ( 69 Sup. Ct. 1359, 93 L. ed. 1782).
2. The questions, argued in the defendant's brief, subsidiary to the question decided in division 1 are so fully covered in that division that no further discussion of those questions is necessary.
3. The evidence objected to in division I having been properly admitted, the evidence authorized the verdict.
4. Special grounds 1 and 3 are treated as abandoned.
DECIDED OCTOBER 26, 1950.
Raymond Huff was tried and convicted in the City Court of Savannah on the following accusation: that on October 1, 1949, he "did unlawfully keep, maintain, employ and carry on a certain scheme and device for the hazarding of money other than a lottery, said scheme and device being known as and called `Bolita.' " When the case came on for trial the defendant filed the following petition: "1. That on the 1st day of October, 1949, at about eight o'clock in the evening, defendant was on the premises known as the Locker Room at Sportsman Park, which was leased by defendant. That defendant, while within the building leased by him, was arrested by county police officers who entered the building without a search warrant to search the premises and without a warrant for defendant's arrest, and said officers had not seen defendant commit a crime in their presence. That said police officers searched the premises and searched the person of the defendant. That said search of the premises and the search of defendant's person and the arrest of defendant were all illegal and not done by virtue of any search warrant or warrant for the arrest of defendant. That the entry of said officers into said building was a illegal for the reasons: (a) No permission was given to enter said building by the owner or person in charge thereof. (b) No crime was being committed in their presence and therefore entry without a warrant was illegal. (c) No facts to arouse a reasonable suspicion that the law was being violated. (d) No facts to show a likelihood that a failure of justice would result because a warrant to search and to arrest had not been attained. 2. That as a result of said search of the premises and the person of the defendant, said county police officers found certain papers which would have evidential value on the premises operated by defendant and which papers would tend to incriminate defendant. Defendant further shows that this constitutional right under the Fourth Amendment of the Federal Constitution has been violated in that his person and the building occupied by him [were searched] without warrant for the same and that said search of the building and his person were unreasonable and illegal and that the use of said papers or anything else seized as a result of said illegal search as the property of defendant and presented as evidence will be in violation of the Fifth Amendment to the Federal Constitution which provides that no person shall be compelled in any criminal case to be a witness against himself. Wherefore defendant prays that all papers and articles of every kind and description taken either from his person or his premises by virtue of said illegal search and illegal arrest be restored to him and that the same be excluded in the trial of the above-stated cause as evidence against defendant." This petition was denied by the court. Upon the trial and conviction of the defendant he moved for a new trial, based upon the usual general grounds and three special grounds, which was overruled and he excepted. Special ground 1 of the motion for a new trial is that "the court erred in rejecting written motion filed to exclude the books, papers, tickets, and other documentary evidence seized by the arresting officers from the premises and the person of the defendant at the time of his arrest upon the grounds set forth in said motion, because said attempted seizure and use of said evidence was contrary to the Constitution of the United States and the State of Georgia, commonly known as the due process clauses, and for the reasons set forth in said written motion."
In special ground 2 the defendant objected to one of the witnesses testifying as to the operation of the game of bolita from his general knowledge on the ground that it was hearsay; this ground also contained an assignment of error upon the court's refusal to exclude the evidence illegally obtained, and refusal of the court to direct a verdict.
In special ground 3 error is assigned upon the refusal of the court to give the following requested charge: "I charge you that where a person's place of business or home is entered without a search warrant or warrant to arrest and without probable cause to suspect that a crime is being committed or that there is a likelihood that there might be a failure of justice, if a warrant does not issue, and that as a result of said illegal search, evidence is obtained in said place or from such person, then in such case it would be your duty to exclude such evidence and not to consider the same."
1. Under the facts of this case, the question is: does a conviction by a State court of Georgia for a State offense deny the "due process of law" required by the Fourteenth Amendment of the Constitution of the United States solely because evidence was admitted at the trial which was obtained under circumstances which would have rendered such evidence inadmissible in a prosecution for a violation of a Federal law in a court of the United States because the Federal courts deem the admission of such evidence an infraction of the Fourth and Fifth Amendments under the ruling in Weeks v. United States, 232 U.S. 383 ( 34 Sup. Ct. 341, 58 L. ed. 652), where it was held that in a prosecution in a Federal court the Fourth Amendment barred the use of evidence secured through illegal search and seizure?
In Johnson v. State, 152 Ga. 271, 272 ( 109 S.E. 662), decided in November 1921, after the decision in the Weeks case, in an opinion prepared for the Supreme Court of Georgia by Mr. Justice George, who is now a member from Georgia of the United States Senate and who is considered by many to be one of the great constitutional lawyers of the United States, the court said: "The first ten amendments to the Constitution of the United States — including of course the fourth [and fifth] — refer to powers exercised by the government of the United States; and not to those of the individual States. In other words, the fourth amendment [and the fifth] is not concerned with State action and deals only with Federal action."
In Kennemer v. State, 154 Ga. 139 ( 113 S.E. 551), decided in August 1922, after the decision in the Weeks case, it is said that the question of whether "incriminating evidence, secured by the unlawful search of a defendant's automobile, and the seizure of intoxicating liquor therein, is admissible against the defendant in a prosecution for a violation of the prohibition law . . has been decided by this court adversely to the defendant and the principle is now firmly embodied in the law of this State [citing cases] . . but it is insisted that the Supreme Court of the United States has taken a different view of this question [citing cases]. . That is true, so far as the provision of the Federal Constitution on this subject affects the trial of criminal cases in the United States courts." The provisions against unreasonable searches and seizures in the Constitution of the United States and in the Constitution of the State of Georgia are identical. See Code § 1-804 for the provision of the Federal Constitution, and Code § 2-116 for that of Georgia. Each of these two sections, which are respective provisions of the State and Federal Constitutions, sets forth a basic substantive right and each should be enforced; but the rules of practice and procedure (adjective law) according to which these substantive laws, which happen to be the same, are administered may vary in the State and Federal courts without necessarily violating the Fourteenth Amendment of the Constitution of the United States; and, in the instant case where logically relevant evidence was obtained by an unreasonable search and seizure, it should not be excluded on the trial of a criminal case in a State court for a State offense merely because in a Federal prosecution for a crime it would be excluded under the United States Supreme Court's interpretation of the Fourth Amendment of the Constitution of the United States. The ruling of the Supreme Court of the United States "was not derived from the explicit requirements of the Fourth Amendment; it was not based on legislation expressing Congressional policy in the enforcement of the Constitution; [but] the decision was a matter of judicial implication." Wolf v. Colorado, 338 U.S. 25 ( 69 Sup. Ct. 1359, 93 L. ed. 1782).
The question presented in the instant case has been answered thus by the United States Supreme Court, "In a prosecution in a state court for a state crime, the Fourteenth Amendment of the Federal Constitution does not forbid the admission of relevant evidence even though obtained by an unreasonable search and seizure." Wolf v. Colorado, supra.
The cases of Johnson v. United States, 333 U.S. 10 ( 68 Sup. Ct. 367, 92 L. ed. 436), and Trupiano v. United States, 334 U.S. 699 ( 68 Sup. Ct. 1229, 92 L. ed. 1663), upon which the defendant relies, involved trials in the Federal courts for Federal offenses.
As of June 27, 1949 (the date of the decision in Wolf v. Colorado, supra) the Supreme Court of the United States states, "31 States [of which Georgia is one, see Polite v. State, 80 Ga. App. 835 ( 57 S.E.2d 631)] reject the Weeks doctrine, 16 States are in agreement with it. Of 10 jurisdictions within the United Kingdom and the British Commonwealth of Nations which have passed on the question, none has held evidence by illegal search and seizure inadmissible."
2. The subsidiary questions argued in the brief of the plaintiff in error are so fully covered by the foregoing division that no further discussion of those questions is necessary.
3. Since the evidence objected to as having been obtained by an illegal search and seizure was properly admitted, under the ruling in division 1 of this opinion, the evidence authorized the verdict finding the defendant guilty as charged.
4. Special grounds 1 and 3 of the motion for a new trial are not argued, nor generally insisted on in the defendant's brief and are treated as abandoned.
The court did not err in overruling the motion for a new trial for any reason assigned.
Judgment affirmed. Gardner and Townsend, JJ., concur.