160 Ga. App. 619 | Ga. Ct. App. | 1981
Lead Opinion
The instant interlocutory appeal was granted in order that we might answer the following question: Is a motion to suppress a proper procedural device by which to secure a ruling on the admissibility of the results of an intoximeter test alleged to have been administered in violation of Code Ann. § 68A-902.1? The trial court, relying upon State v. Sanders, 154 Ga. App. 305, 306 (4) (267 SE2d 906) (1980),
Judgment reversed and case remanded with direction.
Dissenting Opinion
dissenting.
This case resembles both State v. Sanders and State v. Johnston, in that in each the defendant was charged with DUI, was given an intoximeter or breath test, and made a motion prior to trial to suppress the results of the test. Sanders held such a motion is inappropriate because a motion to suppress evidence must come under Code § 27-313 and thus refer to tangible physical property. Johnston reached exactly the opposite conclusion and allowed the motion. I therefore agree with Judge Banke that Sanders cannot be
Briefly, my reasons are as follows:
“It is not every kind of personal property that may be seized under a search warrant, and, although certain species of articles are seizable under a search warrant at common law, the types and character of the property for which search warrants may issue are generally regulated by statute. Such statutes must be strictly construed and must not be extended to property not clearly covered .. . .” 79 CJS, Searches and Seizures, § 64, p. 827.
The only statutory method of suppressing evidence prior to trial is Code § 27-313 which provides that the motion lies where one is aggrieved by an illegal search and seizure, in which event he may move for return of the property, possession of which is otherwise lawful, and may suppress as evidence anything so obtained.
As I construe the code, “anything so obtained” in that context refers to tangible personal property, which is subject to physical seizure. A breath test is not. My reason for laboring the point is that a contrary construction enlarges the scope of search warrants and evidence obtained by means of procedures such as this to a man’s breath, blood, or like portions of his anatomy. This is clearly beyond the scope of the statute and criminal law should not so depart from statutory restrictions.
In my opinion, Chumley should not have been the subject of an interlocutory appeal but should have been tried in the regular course and been appealed after final judgment. For these reasons I respectfully dissent.
Dissenting Opinion
dissenting.
I cannot agree that we are not ignoring the case of State v. Sanders, 154 Ga. App. 305 (267 SE2d 906) (1980), in this case and in the case of State v. Johnston, 160 Ga. App. 71 (1981). As stated in Sanders, “[S]uch motions lie only where tangible physical evidence has been seized. Code § 27-313; Brockington v. State, 152 Ga. App. 11 (262 SE2d 170) (1979).” The only motion to suppress we have is as provided by statute and codified in Code § 27-313. Said code provides: “(a) A defendant aggrieved by an unlawful search and seizure may move the court for the return of property the possession of which is not otherwise unlawful . . .” (Emphasis supplied.)
In the subject case, as was also true in Johnston, supra, there was no search and seizure and there was no entreaty to return a tangible item belonging to either defendant. Further, it appears rather clear that the right of the people as stated in the Fourth Amendment to be secure in their persons, houses, papers, and effects against unreasonable search and seizures has no application to the results of
Other motions and procedures are available to secure a ruling on the admissibility of evidence likely to be introduced in the trial of a pending case. We should not judicially erode or extend the clear purpose for which Code § 27-313 was provided by the Legislature.
Accordingly, I would affirm the subject case and overrule State v. Johnston, supra.
