*1 appellant. Dumich, Nicholas G. Patrick H. for Attorney, Head, Celia, District Marc D. John R. Pray, Attorneys, Edwards, Amelia G. Assistant District Thurbert E. Attorney Attorney General, Smith, Baker, Paula K. Senior Assistant Attorney appellee. Sahni, General, Sara General, K. Assistant S10G1337. THE STATE v. THACKSTON. Justice. Thompson, probation Douglas County, Georgia, onWhile in Hulon Thack- charged drug-related Paulding County, ston was offenses in Georgia, police stopped after him for a traffic in violation March 2007 methamphetamine during and discovered a search of his car. The Douglas County probation Court issued a warrant for his arrest Paulding County charges. based the on Thackston was arrested on executing in warrant October and while methamphetamine They warrant, officers saw aon table. then and obtained executed a search warrant and found more metham- phetamine drug paraphernalia. suppress and Thackston moved to Paulding the evidence seized both in March and October in the County granted criminal case. The trial court the motion on the the March seizure was unconstitutional and the grounds that poisonous
October search and seizure constituted fruit tree. Paulding County prosecutor prossed charges The nolle the criminal suppress Thackston. Thackston then filed a in motion Douglas County grounds revocation case on the same plea arguing raised in the bar, criminal case and filed that under contesting State was barred from the motion to estoppel. plea doctrine collateral The court denied the suppress, proba- bar, denied motion to and revoked Thackston’s tion. Appeals concluding reversed,
The that the elements of estoppel precluded collateral were met and the State was relitigating suppression issue the revocation case. Thackston v. reaching Ga. In pre- conclusion, however, the Court of failed to determine liminarily whether revo- proceedings. cation it Instead, focused on the merits Thack- validity challenge ston’s of the search warrant and the issue of estoppel. petition collateral The State filed a for certiorari which we granted applies to determine whether the We hold it does not and reverse Appeals. the decision of the Court of remedy adopted judicially created is a rights by
1.
deterring illegal
protect
searches
Amendment
Fourth
“
defendant’s
‘cure the invasion
It
not intended to
seizures.
”
already
Leon, 468
rights
States v.
suffered,’ United
he has
(1984), does not
82 LE2d
S.
U.
proceed
in all
“proscribe
seized evidence
introduction of
*2
(96
against
persons.”
465,
SC
ings
Powell,
S.
486
428 U.
Stone v.
or
all
1067) (1976).
constitutionally
the rule is not
Because
3037, 49 LE2d
consistently
purpose, it
its broad deterrent
mandated and because of
thought
objectives
its
are
remedial
been
“where
has
efficaciously
338,
Calandra, 414 U. S.
v.
served.” United States
most
561) (1974).
(94
Pennsylvania Bd.
613,
SC
38 LE2d
(118
357,
2014,
SC
v.
& Parole
Probation
344) (1988)
parole
(refusing
apply
rule in
LE2d
parole
hearings
hinder
of state
it would
function
because
parole
systems
nature of
flexible, administrative
and alter
Lopez-Mendoza,
proceedings); Immigration
S. 1032
v.
468 U.
&c. Svc.
778) (1984) (rule
applicable in civil
not
3479,
SC
82 LE2d
allowing
high
deportation proceedings
immi
due to
social costs
incompatibility
grant
rule
in United States
to remain
proceedings);
United States
civil,
nature of
administrative
1046) (1976) (exclusionary
3021, LE2d
Janis,
(Emphasis Recognizing importance having available for consideration all reliable, relevant revoca- tion the Winsett Court refused to extend the exclusion- ary hearings rule to because its *3 purposes probation system. would frustrate the remedial of the Id. specifically The United States Court has not addressed exclusionary applies probation whether the federal hearings rule revocation parole but has refused to extend the rule to revocation proceedings. supra. See Scott, Like the Court, Winsett the acknowledged significant imposed by exclusionary Scott the costs the precludes probative rule because consideration reliable, of evi- process. truth-finding dence and detracts from the Id. at 364-365. emphasized, “[although The Court there have we held these costs bearing repeatedly be worth circumstances, certain our cases have emphasized ‘costly upon truth-seeking that the rule’s toll’ and law objectives presents high urging enforcement a obstacle for those application [Cit.]” of the rule. Id.
Although parole, probation, Scott dealt with revocation hearings, legally significant importance find we no difference in the truth-seeking type proceeding. the of functions in either of both, In charged responsibility determining the factfinder with the complied whether the protection conditions release have been with and the public ensuring of the and its interest in that criminal properly agree sentences are served. We therefore with the rationale extremely important of Scott and Winsett and find it to the admin- probation system istration of our state that all reliable evidence probationer’s during relevant to the conduct be available revocation exclusionary At the we find time, same rule’s deterrence objective truth-seeking outweigh the costs to the do not benefits probation system. Application paramount of the rule which is our hearings provide deterrence ben minimal would “application trial context in the criminal efits because significant already provides of unconstitutional deterrence supra supra, Winsett, at 54. U. S. at 364. See Scott, searches.” police premise that a officer Moreover, itself is based on the the rule way a will affect the in which he conducts search knows prosecution’s
ability trial. in a criminal To secure conviction exclusionary proceedings apply assumption every require an officer also conducts thus would knowledge suspect probationer as and with searches if the was compliance procured be that evidence probation used ensure proceedings. We find this to conditions via administrative primary goal given police assumption officer’s be an unrealistic obtaining prosecution in the successful of those evidence to assist (use supra, at Janis, who commit crimes. See hearing offending “falls outside the interest”); supra, primary Calandra, at 351 U. S. officer’s zone of (unrealistic jury exclusionary grand application of rule to to assume deterrence). proceedings goal Caro further See also North would 399) (1982) (exten Lombardo, 306 lina v. N.C. exclusionary hearings adds rule to sion nothing rule is built on notion that seized to deterrent effect because strength provides foundation for and affects of State’s trial). accepting assumption, however, criminal case at Even violating suspect’s substantially will deterred officer Fourth rights by application Amendment U. S. at 368. to the criminal trial. See revo- rule to Because only marginal proceedings achieve deterrent effects would cation proper significantly administration of and would alter affect system state, find in this we the deterrence benefits the the outweigh system. rule do not costs *4 balancing proper test, nor neither the federal Therefore, under the requires application exclusionary of the in state constitution supra, probation Krull, U. S. revocation 480 at state 347-348. joins jurisdictions Georgia have thus which issue and reached a conclusion consistent with the considered the beyond exclusionary the trial reluctance courts extend recognition setting1 general important of the administrative and the 1 similarly Virtually every jurisdiction that has the issue has determined that considered goal significantly application not further the rule’s of deterrence rule does 416
goals probation systems. served state Admissibility, Proceeding, in 365-367; Federal Probation Revocation Through Obtained Evidence Unreasonable Search and Seizure or (1976). Warnings, in 30 Absence of Miranda ALR Fed. 824 To the Appeals’ App. in State, extent the decision v. 135 Ga. Amiss 28) (1975), apply proper 784 SE2d did not constitu 2 balancing holding contrary today, tional is our test, it is overruled.* any statutory requiring
2.
do
find
Nor we
federal or state
law
probation
proceed
revocation
ings. Although
argues the
Thackston
of such
admission
evidence is
§
prohibited
(b),
providing
under OCGA 17-5-30
a
if
statute
that
granted
suppress illegally
property
property
motion is
seized
that
any
“shall not be
admissible
evidence
the movant in
trial,”
provision
inapplicable
is
inasmuch as both this Court and the
Appeals consistently
Court of
held
have
that
revocation
hearing
qualify
does not
Settles,
as a trial. See
v.
Meadows
274 Ga.
(2) (561
105) (2002);
858, 859
SE2d
v. State,
Johnson
3. of this resolution we are compelled in this case to address another issue raised certiorari, on by holding appellee whether barred from Court of erred that an raising argument appeal an on an issue on because that argument was not raised the trial court. Appeals, concluding
The Court of
after
that rule
precluded
in revocation
held that
the State was
arguing
appeal
validity
on
that the
of the October
actually litigated
2007 search warrant was not
and determined in the
(3d
proceeding. See, e.g.,
Bazzano,
in a
United States v.
712 F2d 826
Cir.
(4th
1983);
Armstrong,
1999);
Brown,
United States v.
187 F3d
Cir.
392
United States
488
(5th
1973);
Farmer,
(6th
1975);
F2d 94
Cir.
United States v.
512 F2d 160
Cir.
United States v.
(7th
Hill,
(8th
1971);
Frederickson,
1978);
447 F2d 817
Cir.
581 F2d 711
Cir.
(10th
1990).
Winsett,
51;
Finney,
518 F2d
United States v.
897 F2d 1047
Cir.
For state
(Conn.
(II)
Robinson,
Payne
therein;
cases see
541 A2d 504
and cases cited
State v.
Lombardo, supra,
600;
Auth.,
Wright
306 N.C. at
v. Ohio Adult Parole
661 NE2d
(1996) and cases cited therein.
following
they
illegally
We
overrule
cases to
extent
hold
seized evidence is
State,
hearings;
App.
inadmissible
Colvert v.
237 Ga.
SE2d
377) (1999) (vacating
remanding
where trial court revoked
on
based
(2) (265
subject
suppression);
State,
App.
have been
Owens
153 Ga.
SE2d
856) (1980) (reversing
improper
based on
admission of
seized
State,
532) (1980)
hearing);
App.
at revocation
Adams v.
Ga.
SE2d
(holding illegally
State,
hearing);
seized evidence
inadmissible
Porter v.
172) (1977)
(1) (254
App.
(same);
State,
App.
SE2d
Giles
Ga.
(1979)
(1) (252
696) (1979) (same).
(same);
Austin v.
*5
decided)
(and
because
prior
remained to be
therefore
criminal case
argument
See
in the trial court.
did not make this
the State
by
supra
of
Court
4.
case cited
the
State,
720,
proposition,
at
n. The
Thackston
support
however, as
as other
well
in
of this
appellant
proposition
that an
for the
law,
case
stands
related
deemed
or
issue will be
in the trial court
the
raise all issues
must
(501
(2)
appeal.
State,
232 Ga.
on
See Holland
abandoned
SE2d
(480
(6)
State,
Crawford
(1) (422
573) (1997);
SE2d
State,
Judgment J., concur, Benham, reversed. All the Justices 1 and 2. who dissents as to Divisions concurring part dissenting part.
BENHAM, Justice, and join majority opinion, respectfully I I While Division 3 of majority’s overturning more than three decades dissent precedent permit its decision admission of unconstitu- and tionally proceedings. As a obtained evidence in preserving judicial maintaining public integrity, matter of in the confidence legislative system justice, applying and the clear intent Assembly seized as dem- the General onstrated continue by exclusionary rule, I would its codification precedent that follow well-established hold applicable rule is majority The has relied on cases such as United States 561) (1974), Calandra, 338, LE2d 613, 414 U. S. SC Pennsylvania Bd. Probation & Parole v. 524 U. S. 344) (1998), reasoning 2014, 141 LE2d that the 362-364 SC utilizing purpose deter law is to enforcement conducting seizures, officials from unconstitutional searches and essentially any the rule have to this effect is and exhausted under benefit taking trial. context of criminal While reasoning urge account, I to consider whether into only proper goal precluding illegally deterrence is the obtained hearing. and the courts of this state long acknowledged rights probation- have the Fourth Amendment Wisconsin, ers. 97 LE2d Griffin 709) (1987) (“A anyone probationer’s protected home, else’s, like requirement the Fourth Amendment’s searches ‘reason- 909) (1988) ”); able.’ Allen v. *6 (“[Appellant] argues applies proba- that the Fourth Amendment to correct.”); as other tioners well as citizens. He is Hunter 139 State, (229 (1976) 505) (“The App. right Ga. 678 SE2d to be free from persons, including unreasonable searches and seizures extends to all probationers.”). Recognizing rights of its citizens to be free from Georgia upheld seizure, unreasonable search and courts have protect its citizens from the use of evidence flowing from Fourth Amendment violations revocation hearings years. past for the 36 In the State, seminal case Amiss (219 28) (1975), App. Georgia Appeals 135 Ga. 784 SE2d Court of widely accepted established the that view motions to such appropriate proceedings, evidence are find- ing rights proceedings the invasion of constitutional these indistinguishable rights from the invasion constitutional crimi- Georgia appellate nal trials. Id. at 786. courts have adhered — position steadfastly today. this until v. State, Colvert 237 Ga. (516 377) (2) App. (1999); App. SE2d Owens v. State, Ga. (265 856) (1980); (264 App. SE2d State, Adams v. Ga. SE2d 532) (254 (1) 154) (1980); App. State, Giles 149 Ga. SE2d (1979); (1) (252 696) App. (1979); Austin v. 148 Ga. (236 172) (1977). App. Porter v. State, Without giving doing majority’s holding a reason for so, that the exclu- sionary may longer no be asserted in proceedings jettisons precedent nothing decades of when has mate- rially changed. long-standing I find no reason overturn rule of law.
While the considers rule’s deterrent reaching completely disregarded effect in its decision, has — arguably significant purpose impera- rule’s second and more “the judicial integrity.” tive Elkins v. United 364 U. States, S. 1669) (1960). police SC 1437, 4 LE2d If we and allow other law — responsible enforcing enforcement officials those our rules — impunity very law with break that rules serve as the justice system, foundation of our where do we draw the line? As Justice advocated, Brandéis Court has government government laws, “In existence of the bewill imperilled scrupulously. Against if it fails to the law . observe .. that resolutely face.” Olm- set its pernicious should doctrine this court LE 564, 72 SC 438, 485 States, 277 U. S. v. United stead unlawfully (1928) (speaking seized (dissenting) use of out importance emphasizing proceedings in criminal Similarly, rights). through the Court liberty protecting constitutional permitting use of such in Amiss reasoned proceeding “sanction would in a ” integrity. judicial and hinder of the ... Constitution’ ‘defiance (quoting States, v. United Weeks at 785 Amiss, 652) (1914)). Brown LE 341, 58 383, 393 SC 232 U. S. (1975); LE2d 2254, 45 599, 611 SC 422 U. S. Illinois, Terry LE2d 1868, 20 12-13 Ohio, importance. justice system is of utmost in our confidence Public The uniform law both within rules of of established engenders proceedings not trial context of criminal outside the respect system justice, public’s but trust in our faith and the for and cooperation that law enforcement The idea law. expense disregard of constitu- at the rules of law officials promulgated concept rights been and has is not a novel tional throughout systems. To admit evidence court our federal and state trials or resulting in criminal actions, whether from these unlawful impermissible extension of is an *7 defiance. this § exclusionary 17-5-30 OCGA The codification of pro- strengthens argument for its use permit ceedings. motions to do not courts, Unlike federal criminal trial suppress of the evidence outside obtained duly not demonstrated of this state have elected officials context, the trials. To the rule to criminal limit the an intent Assembly contrary, has codified the the General types proceed- distinguishing other criminal trials from without (a). language plain § ings. statute, enacted The OCGA 17-5-30 only requires made “before a that a motion (c) § jurisdiction try OCGA 17-5-30 the offense.” court with if (specifying filed or criminal accusation is fora where “a different by grand jury”). special presentment returned a an indictment or courts, held before trial which are Probation statutory requirement. plainly Colvert, meet this remanding (vacating failed to the trial court where at 670 “properly hearing evidentiary defendant’s on the based conduct an legislature suppress). chosen to amend has not The filed” motion to following lengthy span the Amiss of time holding, legislature where make a distinction see a reason to and I do not by ruling bench, after full an able made has not. “Where divers[e] by argument followed and counsel, has been able Assembly, cases, and has been left unmolested the General impelling changed by not, should unless for reasons, thereafter be the court.” Cobb v. SE given any impelling reason, has not much less an one, to change the well-settled state, law and therefore I must dissent. May
Decided 31, 2011 Reconsideration denied June 27, 2011. Attorney, McDade, Dooley,
David District James A. Thomas E. Kegley, Attorneys, appellant. Assistant District for appellee. Cook,
Steven A. Hogue Hogue, Hogue, & Key, Laura Hames, D. Adam M. J. Scott Cynthia Roseberry, W. amici curiae.
S11A0043. MELICAN PARKER et al.
MELTON, Justice
Harvey
Georgia, bequeathed
Strother, who was domiciled in
long
Florida condominium to his
time mistress, Anne Melican.1Prior
to his death, however, Strother entered a contract
to sell the
Although
closing
condominium.
Strother died before the
date for the
sale of the condominium, the condominium was nevertheless even-
tually
pursuant
agreement
sold
that Strother had entered
before he died. When Melican filed an action in the Probate Court of
County, Georgia,
proceeds
Cobb
to collect the
from the sale of the
Sidney
condominium, A.
Parker, executor and trustee of the testa-
mentary marital
trust, and David Strother, Jr., the deceased’s
grandson
(hereinafter
beneficiary
collectively
under the Will
“Parker”),
response
filed a
as caveators to the Will.2Parker claimed
capacity
Strother’s Will. See Melican v.
654) (2009).
Codicils are
condominium to
(the
“First
Will
In another
This
as
(the
Codicil”)
*8
appeal
Trustee of the Marital
not at issue in the
This Court
“Third
Melican. In a
appeal involving
concerns the Second Codicil
to be
Codicil”)
upheld
invalid,
prior appeal,
Parker,
present
Parker v.
to be invalid. See and also
these same
Trust,
validity