Scull v. THE STATEScull v. THE STATE
- Reporters:
- , ,
- Before:
- Hall
“At common law after Semayne’s Case in 1603, no officer executing a search warrant . . . could force his way into a private dwelling without first knocking and giving notice of his authority. The reason for this rule was originally said to be grounded on the fear of unnecessary damage to private property caused by officers breaking into houses where they might, had they asked, have been admitted freely. [77 Eng. Rep. 194, 196 (1603)] In discussing this principle, therefore, we must note carefully that it applies only in those cases where the officers, acting under a warrant or otherwise lawfully, have a right to be on the premises and to invade the privacy of the citizen. Hence the application of this rule must be carefully distinguished from the problems arising under the Fourth Amendment.” Kaplan, Search and Seizure, 49 Cal. L. R. 474, 500.
Code Ann. § 27-308 was enacted in 1966 and there have been no Georgia cases dealing with possible exceptions, i.e., whether noncompliance can be excused by exigent circumstances. However, the Federal government and many States have had a similar statutory requirement for some time, and we have a prestigious collection of decisions to draw from.
Perhaps the best statement was made by Chief Justice Tray nor of California in an opinion which was a forerunner in this area. “It must be borne in mind that the primary purpose of the constitutional guarantees is to prevent unreasonable invasions of the security of the people in their persons, houses, papers, and effects, and when an officer has reasonable cause to enter a dwelling to make an arrest and as an incident to that arrest is authorized to make reasonable search, his entry and his search are not unreasonable. Suspects have no constitutional right to destroy or dispose of evidence, and no basic constitutional guarantees are violated because an officer succeeds in getting to a place where he is entitled to be more quickly than he would, had he complied with section 844. Moreover, since the demand and explanation re
In Ker v. California, 374 U. S. 23 (83 SC 1623, 10 LE2d 726), the United States Supreme Court first quoted approvingly from Maddox, then held, “Here justification for the officers’ failure to give notice is uniquely present. In addition to the officers’ belief that Ker was in possession of narcotics, which could be quickly and easily destroyed, Ker’s furtive conduct in eluding them shortly before the arrest was ground for the belief that he might well have been expecting the police.” P. 40.
In considering the Federal notice statute, (
We believe the officers here made a sufficient showing of exigent circumstances to excuse compliance with Code Ann. § 27-308.
Defendant also enumerates as error the denial of his requests for disclosure of the informer’s identity. He contends this knowledge was essential to his defense since without it he could not contradict the police claim of exigent circumstances, the sole basis for which was the “information received” rather than the officers’ personal knowledge. Defendant cites Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639), in which a conviction was vacated because the government refused to disclose an informer’s identity, and in which the “essential to the defense”
Here the crime charged is possession of narcotics, and the only significance of the informer’s testimony would be to impeach the police testimony on exigent circumstances, void fhe seizure and suppress the evidence. We do not believe this is an essential type of defense, going to the heart of the charge and the guilt or innocence of the defendant, which would outweigh the public interest in the flow of information.
That Georgia public policy supports the nondisclosure privilege was confirmed in Morgan v. State, 211 Ga. 172 (84 SE2d 365) which cited Anderson u. State, 72 Ga. App. 487 (4) (34 SE2d 110) and Code § 38-1102.
Of course, the police might lie about what an informer has told them concerning exigent circumstances, just as they might about grounds for probable cause for a warrant to issue. In the latter instance however, the name of the informer need not be disclosed if the affidavit meets certain tests (i.e. reliability of the informer shown and the tip sufficiently detailed). McCray v. Illinois, 386 U. S. 300 (87 SC 1474, 18 LE2d 616); Spinelli v. United States, 393 U. S. 410 (89 SC 584, 21 LE2d 637);
Sams v. State,
121 Ga. App. 46 (172 SE2d 473). We believe the same tests should apply to grounds for reasonable belief in exigent circumstances (or, in other words, probable cause for an unannounced entry). We fail to see how, as here, an informer’s tip could be sufficient to cause a search warrant to issue — an exception to the powerful constitutional right of privacy in the home, and be insufficient to allow
The court did not err in refusing to compel the police to name the informer.
Judgment affirmed.
Deen and Evans, JJ., concur.