Smith v. StateSmith v. State
- Reporters:
- , ,
- Before:
- Carley
Lead Opinion
Aрpellant was tried before a jury and found guilty of possession of marijuana with intent to distribute and obstruction of a law enforcement officer. He brings this appeal from the denial of his motion for new trial and from thе judgments of conviction and sentences that were entered on the jury’s guilty verdicts.
The sole enumeration is that the trial court erred in denying appellant’s motion to suppress. The record shows that officers secured a warrant to search a certain residence. Execution of this warrant resulted in the discovery and seizure of more than nineteen pounds of marijuana. The officers also found, in plain view, deрosit slips and checks which bore appellant’s name and the address of the residence being searched. Letters which were addressed to appellant at the residence were also found in plain view. These deposit slips, checks and letters were seized and, after the motion to suppress was denied, they were admitted at trial as proof of appellant’s occupancy of the residence. Appellant urges that these items were his “private papers” and that, as such, they were not subject to seizure. See
A similar contention was raised in Ledesma v. State, 251 Ga. 885 (311 SE2d 427) (1984). In that case, officers had seized a ledger, desk calendars, depоsit slips, a business license and an employment contract. As against the contention that these items had been seized in violation of the Fourth Amendment and
Appellant’s remaining contentions relate to a purported search of his person. It would appear, however, that appellant’s enumeration of error, as it is phrased, is limited strictly to the seizure of items from the residence. Accordingly, appellant’s enumeration would not be *299broad enough to authorize appellate consideration of any issue concerning a search of his person. “An enumeration of error cannot be enlarged to include other issues not made therein.” Reese v. State, 139 Ga. App. 630, 631 (3) (229 SE2d 111) (1976). Moreover, no tangible physical evidence seized from appellant’s person was ever introduced at trial and the error, if any, in denying the motion as to such evidence would be harmless at most. See generally Bradshaw v. State, 163 Ga. App. 819 (1) (296 SE2d 119) (1982). Compare State v. Cochran, 135 Ga. App. 47 (217 SE2d 181) (1975); Wallace v. State, 131 Ga. App. 204 (205 SE2d 523) (1974).
Judgments affirmed.
Deen, P. J., McMurray, P. J., Birdsong, Pope and Benham, JJ., concur. Banke, P. J., Sognier and Beasley, JJ., concur in part and dissent in part.
Concurrence in Part
concurring in part and dissenting in part.
I respectfully dissent with respect to seizure of the papers.
One of the three grounds asserted by defendant for suppression of the evidence was lack of authority to seize paрers, which he argues should not have been used by the State as evidence of defendant’s occupancy and control of the premises and thus of his possession of the marijuana. Defendant relies on thе Federal and State Constitutions and
He invokes
Whether the papers at issue here could have been listed in the warrant under the strictures of subsection (a) (1) is nоt before us, as the papers were not so listed. Subsection (b) governs, and by its plain language it precludes the “discovering or seizing” of private papers which are simply “tangible evidence” as opрosed to contraband.
The papers were not contraband or instrumentalities of the crime charged, as the state witness admitted during the suppression hearing. They were, as he stated, seized because they showed defendant’s connection with the residence. Throughout the execution of the warrant defendant had been denying this fact and had fought the officers when they sought to obtain the key which they thought opеned the house and which in fact did.
Although defendant cites no cases which construe or apply the Georgia statute in the manner he projects, the words of the statute *300support his position. He does cite federal cases predating Warden v. Hayden, 387 U. S. 294 (87 SC 1642, 18 LE2d 782) (1967), which cases distinguish between papers listed and those not listed but merely constituting evidence. They relate to the Federal Constitutional protections against unreasonable search and seizure and self-incrimination, as found in the Fourth and Fifth Amendments, nоt the Georgia statute. However, they put the question here in focus for the purpose of analyzing the Georgia statute, although Warden discarded the distinction between “mere evidence” and “instrumentalities” for Federal Constitutional purposes.
The State counters with the argument that such papers were not inadmissible as “mere evidence” as distinguished from “instrumental-ities of crime” under the Fourth Amendment, citing as controlling Warden v. Hayden, supra. Furthеr, the State argues, the papers were properly seized under the plain view doctrine as set out in Coolidge v. New Hampshire, 403 U. S. 443 (91 SC 2022, 29 LE2d 564) (1971). See Scott v. State, 122 Ga. App. 204 (176 SE2d 481) (1970).
I do not reach the Federal or the State Constitutional issues (appellant cites but does not argue the State Constitutional ground,
However, the code section relied upon by appellant provides more stringent protection tо one whose property is subjected to a search and seizure. See Michigan v. Long, 463 U. S. 1032 (103 SC 3469, 77 LE2d 1201) (1982).
In Scott, supra, on which the State relies, the issue was whether *301the search and seizure met constitutional muster and the Georgia code section was not in issue.
Ledesma v. State, 251 Ga. 885, 889 (7) (a) (311 SE2d 427) (1984), involved a “ledger reciting drug transactions; two desk calendars recounting drug transactions and the name of a drug courier; deposit slips for Wes-Mer Chemical Company found at appellant Merritt’s real estate business; a business license of Wes-Mer Chemical Company; and an employment contract between a third pаrty and Wes-Mer Chemical Company. Both the business license and contract denominated appellant Merritt as a corporate officer in Wes-Mer Chemical Company, ...” Id. at 890.
No personal letters or other personal papers were included. Moreover, it was the search of a place of business, not a private residence. The Court distinguished these papers as instrumentalities of a сrime, which are not precluded from seizure by
In the present case, the papers contained information about their owner’s personal affairs, such as where he banked, to whom he wrote checks and in what amounts, who he telephoned and how much he owed the phone company and others, where and how much he had in a savings account. These were seized as evidence of residence, a perfectly legal status, and not as instrumentalities of crime. They were not part of the criminal aсt of possession of marijuana with intent to distribute or obstruction of an officer.
The commentators cited in Ledesma and referred to in the majority opinion discuss the difference between “business records” and a “diary,” referring to the dissent in Couch v. United States, 409 U. S. 322, 350 (93 SC 611, 34 LE2d 548) (1973), as well as оther personal papers. They concentrate on the degree of the privacy character of the papers (some more private than others), but always in the Federal Constitutional sеnse. See LaFave, Search & Seizure, § 2.6 (e), pp. 491-499. We are dealing with the state statute, which is very specific and is not limited in its reach by the United States Constitution.
The inclusion of LaFave and McCormick as authority for the decision in Ledesma indicates a confusion in the distinction between the Fourth Amendment and
Since I would conclude that the papers seizеd here were private *302papers within the contemplation of the statute, I would hold that the failure to grant the motion to suppress the seizure of defendant’s papers and the admission into evidence of the “bag of documents” was error.
I am authorized to state that Presiding Judge Banke and Judge Sognier join in this opinion.