*1 and perpetual injunction binding on Rolleston and those in privity him, with including Trust, they and are collaterally estopped from relitigating the of that propriety order in a suit against privies, Estate or its including Ms. Kennedy. Nasserazad, Smith v. supra 457-459 Nor can the Trust relitigate Rolleston’s or its own interest in the Sea Island property.
Since the Trust’s did not complaint prior have written court approval attached and it involved a claim of an adverse interest property by Trust, an entity owned and controlled by Rolles- ton, the trial court’s summary dismissal of the complaint correct based either on the bill of peace and perpetual injunction or the prior judicial determinations of Rolleston’s and the Trust’s claims to the property. See Smith Nasserazad, supra at 459 Contrary to the contention, Trust’s further court’s dismissal properly to the applied entire complaint, and no claim remains against any alleged privy Kennedy, Ms. including Trust Company and its successor SunTrust.
Although neither appellee has moved this Court to impose a pen- alty for frivolous appeal, we have the authority to do so on our motion pursuant to Supreme Court Rule 6. Accordingly, the maximum pen- alty $2,500 is hereby imposed against Rolleston and the Trust.
Judgment penalty imposed. All the Justices concur. affirmed — January Decided January
Reconsideration denied Rolleston, Jr., Moretón se. pro
Arnall, Gober, Golden & McCalla, James A. Gregory, Raymer, Padrick, Cobb, Clark, Michalove, Nichols & Lublin, Scott H. Peter L. Dominick, Matthew W. for appellees. (two cases).
S03A1282, S03A1414. BANKS v. STATE OF GEORGIA Justice. Carley,
Responding to the report shooting, officers arrived at the home of Willie Banks and discovered that he had received multi- ple gunshot him, wounds. According to two armed men entered his home, and he have wounded one or both After before fled. Banks was transported hospital, to the the officers with his spoke neighbors who reported seeing suspects, two and then argument by gunfire coming followed from Banks’ house. The neigh- bors also said that out of One of them Banks sold his residence. stated in an Banks, earlier conversation with he admitted sell- sought officer investigating An marijuana. amounts of large shooting, for evidence of the house to search warrant materials scales and bags, blood, “marijuana, plastic hair issued, The warrant marijuana.” distribute said package used discovery grams resulted search ensuing and the $29,940 in cash. cocaine *2 the against forfeiture proceedings initiated
The State of answered, the trial court con- money. contraband He hearsay objection. over at which it admitted hearing ducted a 16- constitutionality of OCGA § to the challenge filed a subsequently (s) of hear- authorizing consideration (1), contending 13-49 the constitutional that statute violated hearing, say at a forfeiture the The trial court upheld his accusers. an accused to face right of of forfeiture which law, and entered order constitutionality of the hearing. at the evidence admitted hearsay in the part upon relied by probable was supported ruled that the warrant The trial court [home the inva- evidence or a motive for cause to search for “physical . . .” [that] in crime . identity perpetrators and . . . the sion] order, brings appeal. this From that (s) (1) is unconstitu- that OCGA 16-13-49 1. Banks contends § hearing, in a forfeiture The provides tional. statute court consider, determination making any receive and
may cause, admissible reasonable all evidence probable cause or hearing cause at a determining probable preliminary Article 1 of 5 of Title Chapter by magistrate pursuant 17, inferences therefrom .... together with hearsay is admissible in determin- long recognized It has been States, v. United 362 U. S. the existence of cause. Jones probable 697) 257, 725, grounds, 4 overruled on other 271 SC LE2d 619) Salvucci, 2547, 83 SC 65 LE2d United States v. 448 U. S. Stynchcombe, Strauss (1968). does not violate the hearsay purpose Admission of wit- accusing of a defendant to confront the right constitutional the for determination. nesses, or innocence is not issue guilt because “ prove what is great required ‘There is . . .a “difference between cause required probable in a criminal case and what is to show guilt ” Strauss v. at 865 Stynchcombe, supra [Cit.]’ for arrest or search.” which is upon cause’ rest evidence finding of‘probable “[A] United States v. Ven- legally [Cit.]” in a criminal trial. competent 684) (1965). (I) (85 tresca, U. 13 LE2d S. (s) (1), hearsay is not admissible to Under OCGA 16-13-49 § admitted for the limited purpose the truth of its contents. It is prove showing the relied to establish existence of the information of Ga., Rabern v. State to conduct the search. Here, the officers who testi 874, 875 hearing prove were not called to that Banks vio forfeiture fied the money. by possessing The the contraband the criminal law lated testimony explain seeking purpose the a war was to basis for of their They supported forth the which his house. set factors rant to search the belief found in the invasion would be that the evidence related the home presence residence, therein against commission of the assault Banks. trial motive for the constitutionality rejected challenge correctly court (s) (1), testimony pursuant § to which purpose. for this limited admissible did not on contends that the warrant issue (s) (1) previously noted, OCGA 16-13-49 authorizes the
cause. As
hearing
in a forfeiture
to consider all of the evidence that
trial court
magistrate.
Such evidence includes
would be admissible before
testimony
affidavit,
See Sim-
the
mons v.
“totality
as well as the sworn
officers.
Under
duty
test,
of the circumstances”
trial court con-
practical,
ducting
is to make a
common-sense
forfeiture
*3
given
presented
whether,
it,
to
a
all the evidence
there is
fair
decision
probability
in
or
of a crime
be found
that contraband
evidence
would
(103
particular place.
2317,
Gates,
See Illinois v.
With a drugs they reports Banks sold from cated that received that long “Hearsay a ‘so as can be the basis for issuance of warrant house. there (is) [Cits.]” crediting hearsay.’ Ward a substantial basis (218 591) (1975). determining State, 882, 883 SE2d In v. credibility 234 Ga. veracity knowledge hearsay, basis of the declarant’s major App. State, 96, 257 Ga. 99 are still considerations. Clemons v. (574 535) (1) (2002). named, Here, were not SE2d informants only neighbors. The as Banks’ affiant admitted were identified anonymous neigh- previously acquainted with the was not that he 546
bors, prior personal they might and had no of whether be knowledge Jackson, v. 166 App. considered truthful individuals. See State 417) (1983). 671, State, 673 SE2d Miller v. 155 Ga. Compare (I) (270 822) (A) (1980). Thus, best, SE2d at each was shown App. citizen, veracity to whose was never demonstrated. be undisclosed (456 693) State, (1995); SE2d App. Stewart v. State v. (2) 816) (1988). (366 Brown, Therefore, 186 Ga. SE2d App. crediting drug there no their a reports was basis that was any dissemble, “If the apparent [s] dealer. informant lacked motive it could that equally [they] any be said lacked motive to tell apparent v. Teague, the truth.” State 192 Ga. SE2d App. “[Attesting magistrates [should] officers make every supporting effort see that affidavits reflect the maximum indica- . . reliability tion . whenever and wherever that shall be feasible.” State v. Stephens, supra 184. That was done here.
Moreover, single with a exception, knowledge basis them, unidentified declarants was never As reports shown. their drugs might that Banks sold from his house no more be than an circulating throughout neighborhood. unsubstantiated rumor Duty State, v. 254 Ga. State v. Brown, supra at 158 The affiant did assert that one of the unnamed in neighbors conversation, revealed prior admitted that he sold amounts of “large marijuana.” Although this information, identified Banks himself the source the declarant’s approximate time Banks made this admission was not set forth, nor was there indication when he supposedly made it, he was recounting rather than present, past, “[T]he events. time of prime the occurrence of the facts relied is a element the con- 101,104 cept [Cit.]” cause. Lewis 255 Ga. The inquiry is whether the factual statements within the affidavit are sufficient to create reasonable belief that Luck, the conditions described still State v. prevail. 791) (1984). Here, there was the affidavit nothing support belief dealing reasonable from his house at
the time the warrant was issued.
Thus, a fair of totality assessment the of the information sup- plied by individuals, the officers is that certain unnamed none of believe, whom had a demonstrable reason to implicated drugs. Moreover, as a seller of all but one of the anonymous accusers any did not disclose making basis for the inform- charge. single ant who did identify incriminating the source of the information oth- erwise failed to indicate whether the criminal attributed to activity Banks was or current stale. This evidence have been sufficient to create a as suspicion justify investigation so to further into Banks’ alleged However, drug dealing. it was showing not sufficient of justify of Banks’ home an immediate search cause so as supra drugs. Brown, v. at State for Georgia in the affida- deficiencies contends
The State testimony subjective supplied by his the affiant’s vit were things, “probably opinion, two invasion was the motive for the home drugs money.” facts, However, cause must be based or (a); Veasey opinions suspicions. v. testimony not (1966). Nothing App. the objective corroborate as both true the officer states facts which would neighbors, supplied such that current the information the drugs probability from his house and there was a fair sold following the incident. At would be found there that the contraband most, expresses personal opinion the his own belief that the affiant’s pattern, only suspi- drug a mere fit a traffic and raises home invasion being kept premises. Brown, on the State v. cion that contraband was testimony, Considering supra the the the affidavit and by probable drugs supported was not cause. warrant to search for considering the autho 3. The State of contends invasion, home such as rized search for evidence related to the blood identifying parked papers in the hair and for the automobiles and driveway, drugs the it inevitable that the officers would discover was money. of Ga., See Gearin State 562) (1995). However, the not reach that conclu trial court did finding. Instead, sion, and the evidence does demand such money found in closed that the cocaine and were both record shows prem opened dog brought which were not until containers searching express purpose alerted han ises discovery presence. circumstances, of the Under these dler their drugs, product of an rather items was the unauthorized search result of an authorized search for evidence than the inevitable regarding identity ownership who com or the of those cars robbery mitted the and assault. original forfeiture, order of
4. After the trial court entered the appeal for new trial. filed a notice of and a motion both eventually Although appeal in this Court Case was docketed pending trial S03A1282, motion for new the effect Number Housing jurisdiction preserve case. of the trial court over the Authority City Geter, 252 Atlanta v. original order, Thereafter, the trial court vacated timely of forfeiture. Banks filed a notice and entered another order appeal order, as Case Number and the case was docketed from that only S03A1414 circumstances, these Case Number S03A1414. Under when the order viable, S03A1282 became moot as Case Number Accordingly, being appealed Number was vacated. Case therein hereby S031282 is dismissed. *5 S03A1414,
5. In Case correctly upheld Number court (s) constitutionality but OCGA 16-13-49 erred finding § the existence of cause to search Banks’ residence drugs. Accordingly, judgment of forfeiture as the contraband and the reversed, money must be notwithstanding validity the eviden- tiary ruling hearsay admitting for the limited purpose attempting to show that the officers seized those properly items.
Appeal dismissed in Case Number S03A1282. reversed Judgment in Case All Number S03A1414. the Justices concur.
Fletcher, Justice, Chief concurring.
Because a a hearing quasi-criminal forfeiture if proceeding,1 (s) (1) were interpreted authorize the State use hearsay inadmissible a final support judgment forfeiture, then that statute would violate defendant’s Sixth Amendment right majority of confrontation. The opinion limits use properly in a hearsay forfeiture to the issue of whether the State had sufficient search, to conduct I fully concur with that opinion. February
Decided Kenner,
Maurice G. for appellant. J. Morgan, Tom District Attorney, Conroy, Barbara B. Jacqueline Liss, S. Hardy, M. Christy Assistant District Attorneys, appellee. I.D.K., S03A1359 INC. et al. v. FERDINAND al. et Benham, Justice.
This is from a appeal judgment upholding constitutional- ity of Fulton County ordinance requiring any person at an working adult entertainment alcohol, establishment serves dancers, waitresses, bartenders, dishwashers, janitors, to obtain from permit the Alcohol and Tax Business Division of the Fulton County Tax Commissioner’s Office. The fee for an initial permit $350, under the ordinance is which includes permit $300 investigation for an $50 fee. The must permit be renewed annually for a fee ordinance, Prior $50. to enactment of this permits cost $20 year per and were handled exclusively In department. Ga., Plymouth Pitts v. State One 1958 170) Pennsylvania, Sedan 380 U. S. 14 LE2d