Thоmas Robert Hourin appeals the trial court’s denial of his pre-trial motions in this criminal case. We granted Hourin’s application for interlocutory appeal and directed the parties to address whether this Court has jurisdiction over an application for interlocutory appeal when the certificate of immediate review is signed by a judge different, than the judge who signed the order to be appealed. We answer that question in the affirmative but reject Hourin’s arguments that the statutes under which he is charged are unconstitutional. We also determine that the trial court erred in concluding that officers announcing their presence while simultaneously еntering a building was sufficient to satisfy Georgia’s knock-and-announce statute. Because that error was the trial court’s basis for denying Hourin’s motion to suppress, we vacate that order and remand for consideration of additional issues not decided by the trial court.
Hourin, the non-physician owner of a medical clinic, was charged with one count of conspiracy to commit the offense of unauthorized
Hourin’s motions were handled by one judge, but the certificate of immediate review was signed by another. Pursuant to an order assigning him to handle matters for the Blue Ridge Judicial Circuit from August 22 to September 2, 2016, Superior Court Senior Judge Frank Mills presided over an August 31, 2016, hearing on Hourin’s motions. Judge Mills orally denied both the general demurrer and the motion to suppress. He memorialized those decisions in separate orders entered October 3, 2016, stating in each that consideration of Hourin’s request for a certificate of immediate review “is reserved for the assigned judge.”
1. We first address the threshold question of our jurisdiction. Neither of the rulings from which Hourin seeks to appeal here — the denial of a general demurrer and the denial of a motion to suppress — is a final judgment or otherwise subject to an immediate appeal under OCGA § 5-6-34 (a). Thus, a certificate of immediate review under the terms of OCGA § 5-6-34 (b) was required.
OCGA § 5-6-34 (b) provides in part:
Where the trial judge in rendering an order . . . not otherwise subject to direct appeal . . . certifies within ten days of entry thereof that the order ... is of such importance to the case that immediate review should be had, the Supreme Court or the Court of Appeals may thereupon, in their respective discretions, permit an appeal to be taken ....
But Judge McElyea, not Judge Mills (the judge who rendered the orders), signed the certificate of immediate review. Both parties agree that this does not invalidate the certificate of immediate review or deprive us of jurisdiction. Nevertheless, it is incumbent upon this Court to inquire into its own jurisdiction even when not contested by the parties. See Metro Atlanta Task Force for the Homeless, Inc. v. Ichthus Cmty. Trust,
(a) Hourin first argues that OCGA § 16-13-41 andOCGA § 16-13-42 are unconstitutionally vague. We disagree.
Where, as here, First Amendment rights are not implicated, one whose own conduct may constitutionally be proscribed cannot challenge a law on the ground that it might conceivably be applied unconstitutionally to othеrs. See Raber v. State,
The indictment alleges that Hourin conspired to commit the offense of unauthorized distribution and dispensation of a controlled substance in violation of OCGA § 16-13-42. As the overt act committed in furtherance of this alleged conspiracy, the indictment alleges that Hourin possessed “13 prescriptions that were issued and signed in blank by Dr. Kelvin White, a practitioner and a person who is subject to the requirements of [OCGA §] 16-13-35[,] in violation of [OCGA §] 16-13-41(h)[.]”OCGA § 16-13-42 (a) (1) makes it “unlawful for any person... [w]ho is subject to the requirements of Code Section 16-13-35 to distribute or dispense a controlled substance in violation of Code Section 16-13-41[.]” OCGA § 16-13-41 (h) provides:
It shall be unlawful for any practitioner to issue any prescription document signed in blank. The issuance of such document signed in blank shall be prima-facie evidence of a conspiracy to violate this article. The possession of a prescription document signed in blank by a person other than the person whose signature appears thereon shall be prima-facie evidence of a conspiracy between the possessor and the signer to violate the provisions of this article.
The State does not allege that Hourin is either subject to the requirements of OCGA § 16-13-35
Hourin argues that the statutes under which he is charged are unconstitutionally vague because they do not put him on notice that they apply to a person who is not a
Here, in contrast, Hourin does not contend that no one could be convicted of the underlying offense, just that the statute does not clearly criminalize his conduct becаuse he is not a “practitioner.” His argument raises the question of what it means to “conspire[ ]” under OCGA § 16-4-8, a term of art with a long tradition of usage in the criminal law. When the legislature uses such a term of art, it presumably adopts the longstanding interpretation of that term unless it says otherwise. See Lathrop v. Deal,
(b) Hourin also argues that OCGA § 16-13-41 (h) is unconstitutional because it relieves the State of its burden to prove the elements of a conspiracy Again, we disagree.
We have reversed a defendant’s conviction where the jury was instructed with the same language found in the statute at issue here. In that case, the jury was instructed that possession of two or more financial transactions cards in the name of persons other than immediate family members or without the consent оf the card holders “shall be prima facie evidence” that the cards were obtained in violation of OCGA § 16-9-31 (a). See Mohamed v. State,
But it is only when jurors are given an instruction that reasonably can be understood
[T]he presumption in the statute in question here might be constitutionally valid or invalid depending on the instructions given to the jurors by the court. If the presumption indicated by the statute could be interpreted by the jury under the court’s instructions as a burden shifting presumption or as a conclusive presumption, either interpretation would deprive the defendant of his right to have the state prove every element of the crime with which he is charged beyond a reasonable doubt. Under those circumstances, the instructions would render the presumption unconstitutional. On the other hand, if the instructions made clear to the jury that the presumption raised by the statute was permissive only, and that the duty still devolved upon the state to prove every element of the crime charged beyond a reasonable doubt, the presumption permitted by the statute would be constitutionally permissible.
Id. at 38 (2) (citation omitted).
Like Hudson , this case involves a pre-triаl challenge to a statute. As explained above, the statute at issue may support instructions that make clear to the jury that the presumption the statute provides for is permissive only — a defendant’s possession of a prescription document signed in blank by a person other than the person whose signature appears therein permits an inference that the possessor and the signer conspired to violate Article 2 of the Criminal Code. And a jury can be told as much using acceptable phrases such as “it is reasonable to infer” or “you may draw the inference that.” See Isaacs,
3. Finally, Hourin argues that the trial court erred in denying his motion to suppress the evidence seized in a search of the clinic. He offers two bases for that argument: (1) the warrant pursuant to which the search was conducted was overly broad and authorized a general exploratory search of a medical practice; and (2) the warrant was executed illegally because officers failed to knock and announce their presence prior to commencing the search as required by OCGA § 17-5-27. We agree that the trial court erred in its application of OCGA § 17-5-27.
“Unless clearly erroneous, the trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted on appeal.” State v. Davis,
Q: So they were already in the back by the time you were at the window, correct? You’re . . . second in line, right?
A: Correct.
At the hearing, the defense also presented surveillance video showing the agents’ execution of the warrant. This videо showed the agent presenting the warrant to the receptionist at the same time as other agents entered the back part of the building.
Rejecting Hourin’s knock-and-announce argument, the trial court found that one officer approached the receptionist and gave her a copy of the search warrant at the same time that others began securing and searching the premises. The trial court held that this simultaneous action did not violate the knock-and-announce requirements of Georgia law and denied the motion to suppress. The trial court also found that the affidavit in support of the search warrant provided sufficient facts to еstablish probable cause to search the clinic.
(a) The State contends that Hourin waived his arguments regarding the improper execution and the overly broad nature of the search warrant by failing to raise those arguments in his motion to suppress. But, putting aside whether these issues were properly raised in Hourin’s written motion to suppress, Hourin did raise them at the motions hearing, and the State did not then object on lack of notice. The State cannot complain about lack of notice for the first time here.
(b) Hourin contends that the warrant was illegal as issued because the authorization given was overbroad. We disagree.
“[A] search conducted pursuant to a search warrant, regular and proper on its face, is presumed to be valid and the burden is on the person who moves to suppress the items found to show that the search warrant was invalid.” State v. Slaughter,
The warrant limited many of the records to be seized to those pertaining to а list of particular patients provided to the attesting agent by a medical assistant with the clinic, who said these patients had been seen by a nurse practitioner using an otherwise blank prescription pad pre-signed by a doctor. Certain documents listed, such as “financial documents,” although not limited to the care of certain patients, were limited by the clause “related to patient care and medical payments.” Other business records, such as sign-in sheets, were specifically described. The authority of the officers to search for the records in question was sufficiently limited. See Smith v. State,
(c) Hourin argues that the search warrant was illegally executed because the officers did not comply with Georgia’s statutory requirements that officers knock and announce their presence before forcibly entering a building. The trial court concluded that an announcement simultaneous with entry satisfied the statute. Because the statute requires the announcement to precede entry, this conclusion was error. We remand for consideration of the State’s arguments that the entry was not forcible and exigent circumstances were present.
OCGA § 17-5-27 provides:
All necessary and reasonable force may be used to еffect an entry into any building or property or part thereof to execute a search warrant if, after verbal notice or an attempt in good faith to give verbal notice by the officer directed to execute the same of his authority and purpose:
(1) He is refused admittance;
(2) The person or persons within the building or property or part thereof refuse to acknowledge and answer the verbal notice or the presence of the person or persons therein is unknown to the officer; or
(3) The building or property or part thereof is not then occupied by any person.8
Here the trial court found that officers entered the back part of the office through a closed door in the waiting room at the same time that another officer approached the receptionist and showed her the warrant. The trial court’s finding that these events occurred simultaneously is consistent with video evidence. But even under that factual finding, the agent’s approach to the receptionist would not satisfy the prerequisite to the use of force set forth in the statute because the officers did not allow any time at all for a response before entering the back portion of the building. The plain text of OCGA § 17-5-27 requires an officer to announce his or her presence (or make a good faith effort to do so) and wаit for some sort of response before the officer uses force to effect an entry into a building or part of a building. See OCGA § 17-5-27 (“All necessary and reasonable force may be used to effect an entry into any building ... or part thereof to execute a search warrant if, after verbal notice or an attempt in good faith to give verbal notice . . ."); see also State v. Cash,
But the trial court’s ruling meant that it did not consider other issues raised by Hourin’s motion and the State’s response. First of all, OCGA § 17-5-27 applies only when officers use some “force.” At the motions hearing, the State сontended that the officers entered the clinic “very peacefully, very calmly,” and the State argues on appeal that the officers used “no force whatsoever” in entering the back of the building. Our Court of Appeals has suggested that opening an unlocked door may constitute force within the meaning of OCGA § 17-5-27. See State v. Smith,
The trial court’s ruling also meant that it did not consider the State’s argument that exigent circumstances excused compliance with OCGA § 17-5-27. We have held that exigent circumstances may obviate the need to comply with the knock-and-announce procedure. See, е.g., Fair,
Judgment affirmed in part and vacated in part, and case remanded.
Notes
The parties do not argue, and thus we do not consider, any effect of Judge Mills entering his orders after the expiration of the order assigning him to handle matters for the circuit.
The Court of Appeals has held that the samе judge who entered the order in question must issue the certificate of immediate revie w, while allowing for some exceptions. To the extent that the Court of Appeals has suggested that the judge who issued the order in question must be physically unavailable in order for a different judge to sign a valid certificate of immediate review, those decisions are disapproved. See Druid Hills Civic Assn. v. Buckler,
OCGA § 16-13-35 (a) mandates registration with the State Board of Pharmacy by anyone “who manufactures, distributes, or dispenses any controlled substances within this state or who propоses to engage in the manufacture, distribution, or dispensing of any controlled substance within this state[.]” It exempts certain persons from registration and automatically deems registered other persons, such as physicians. OCGA § 16-13-35 (c), (g).
OCGA § 16-13-21 (23) defines practitioner as:
(A) A physician, dentist, pharmacist, podiatrist, scientific investigator, or other person licensed, registered, or otherwise authorized under the laws of this state to distribute, dispense, conduct research with respect to, or administer a controlled substance in the course of professional practice or research in this state;
(B) A pharmacy, hospital, or other institution licensed, registered, or otherwise authorized by law to distribute, dispense, conduct research with respect to, or administer a controlled substance in the course of professional practice or research in this state;
(C) An advanced practice registered nurse acting pursuant to the authority of Code Section 43-34-25. For purposes of this chapter and Code Section 43-34-25, an advanced practice registered nurse is authorized to register with the DEA and appropriate state authorities; or
(D) A physician assistant acting pursuant to the authority of subsection (e.l) of Code Section 43-34-103. For purposes of this chapter and subsection (e.l) of Code Section 43-34-103, a physician assistant is authorized to register with the DEA and appropriate state authorities.
In Mohamed, we noted that while the jury was instructed that the State must prove the elements of the crime charged in the accusation, which alleged that the appellant unlawfully and knowingly withheld the cards from the victim, the trial court did not give three separate instructions requested by the defense to the effect that the State must prove beyond a reasonable doubt that the appellant deliberately withheld the victim’s credit cards from her.
Another case relied on by Hourin, Sherrod v. State,
Hourin relies on Grant v. State,
OCGA § 17-5-30 (a) (2) provides that “[a] defendant aggrieved by an unlawful search and seizure may move the court ... to suppress as evidence anything so obtained on the grounds that... the warrant was illegally executed.” We note that the United States Supreme Court has held that a violation of the federal knock-and-announce rule — at least the version of the rule arising under the Fourth Amendment — does not demand exclusion of evidence. See Hudson v. Michigan,
The trial court might also consider whether OCGA § 17-5-27 fully displaced the common law rule. The text of OCGA § 17-5-27 is permissive, not exclusive. See OCGA § 17-5-27 (“force may be used . . . if[,]” not “no force may be used unlеss”). A motion to suppress filed under OCGA § 17-5-30 challenging execution must show that a “search and seizure with a warrant was illegal because . . . the warrant was illegally executed.” OCGA § 17-5-30 (a) (2). Merely failing to comply with a permissive statute regarding execution does not necessarily render that execution illegal; rather, a consideration of the applicable background law might then be necessary. Georgia adopted the common law of England except to the extent that Georgia’s statutory or constitutional law displaced it. See OCGA § 1-1-10 (c) (1) (“The following specific laws and parts of laws are not repealed by the adoption of this Code and shall remain of full fоrce and effect, pursuant to their terms, until otherwise repealed, amended, superseded, or declared invalid or unconstitutional: (1) An Act for reviving and enforcing certain laws therein mentioned and adopting the common laws of England as they existed on May 14, 1776, approved February 25, 1784.”); see also Lathrop,
The origin of this exception is unclear; the text of OCGA § 17-5-27 does not seem to contemplate it. It may be drawn from the common law knock-and-announce rule. See Sabbath,