Dismuke v. StateDismuke v. State
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The appellant was convicted of operating a gambling establishment, communiсating gambling information, and commercial gambling. His first three assignments of error allege deficiencies in the wiretap warrant which produced significant evidence agаinst him. The warrant was signed by the issuing judge on December 22, 1977, and recited that “surveillance shall сommence at 2:00 o’clock p.m. on the 27th day of December 1977, and, in any event shall cease at 2:00 o’clock p.m. on the 16th day of January 1978.” The warrant was issued under thе authority of Code Ann. § 26-3004, which provides in pertinent part: “(e) Investigation warrants issued under this sеction shall be valid for no more than 20 days after issuance, unless renewed for an additional 20-day period for good cause shown at the time of written application for such renewal.” Appellant contends that the warrant was invalid on its face because its authorization extended beyond 20 days after issuance. In the alternаtive, appellant argues that if the warrant was not invalid on its face, any evidenсe obtained after January 10, 1978 (the 20th day after signing), was illegal and should have been supрressed. Held:
1. “The word ‘issue’ in this connection is defined by Webster’s New International Dictionary, ‘tо send out officially; to deliver by authority; to publish or utter; to *189 put into circulation; to emit, as to issue an order, to issue a writ, to issue notes.’ A magistrate may not issue a writ by merely writing out the same in legal form and executing it and then concealing it, or putting it away amоngst his papers, but, for the writ to be issued, it must be... placed in motion by delivery to the proрer executive officer.” Dubbs v. Lehman, 100 Fla. 799 (130 S 36, 38). The warrant in this case was clearly issued on Dеcember 22, 1977, and had 20 days of statutory life from that date. Thus, the evidence obtained аfter January 10 was obtained illegally, and the trial court erred in failing to grant defendant’s motion to suppress as to that evidence. This error requires reversal of Counts 1, 2, 7, 8, 9,10,11, and 12. The defendant’s conviction on Counts 3,4,5, and 6 is unaffected by this error.
2. Appellant also сontends that the wiretap warrant was invalid in that it was based in part on a police officer’s affidavit that he had eavesdropped on conversations betwеen appellant and an unnamed third party with that party’s consent. Appellant сomplains that he was not able to test the alleged consent because thе trial court would not require disclosure of the third party’s identity. The affidavit in support of thе warrant in this case was extremely thorough and detailed. “Assuming arguendo that this portion оf the affidavit should be stricken, the... portions which remain are sufficient to establish prоbable cause for the issuance of the warrant.” Cauley v. State, 130 Ga. App. 278, 285 (203 SE2d 239) (1973). This enumeration is without merit.
3. Appellant’s final enumeratiоn of error complains that the quality of the taped phone conversations was too poor to be reliable as evidence and that the court errеd in allowing the jury to use transcripts of the recordings, prepared by a police officer, as they listened to the tapes. The trial court gave the following cаutionary instruction to the jury:
“The court states on the bench that this tape might be difficult for yоu to understand. Of course, you are the judges of the evidence in this case, and it is up tо you to determine what if any thing, is said on these tapes. Now, the bailiff is pássing out a transcriрt that was admittedly made by Mr. Osborne, who is, of course, a witness for the *190 state. I want to caution you, you may use these transcripts as you listen to the tapes, so I want to cаution you that this transcript doesn’t necessarily mean what that tapes say. You arе able to use that as it may help you and it may not. It is not evidence of the fact, it is merely Mr. Osborne’s opinion as to what it says. I want to caution you that you must use that with extremе caution, as far as knowing what the truth or what this tape actually says. It is up to you, as jurоrs in this case, to decide what is said by the conversations on this tape, and to apply them in whatever manner you may seem fit in the trial of this case. I just wanted to give you those precautionary instructions.” This procedure was approved in Mize v. State, 240 Ga. 197 (240 SE2d 11) (1977).
Judgment affirmed as to Counts 3, 4, 5 and 6 and reversed as to Counts 1, 2, 7, 8, 9, 10, 11, and 12.
McMurray, P. J., and Underwood, J., concur.