*1
231
garnishment
judgment
judgment
and the
on which
garnishment
provided, however,
based,
employee
pay
incurred under the
shall
the court costs
garnishment
judgment
and the motion to vacate
years
the default
within two
of the date of
filed
(Emphasis supplied.)
judgment.”
"
neglect’
gross negligence.
does not mean
'Excusable
disregard
process
It does not mean a willful
court,
where there is a reasonable
but refers to cases
failing
O’Connor,115
for
to anwer.” Brucker v.
excuse
(41
245).
neglect
"It has
defined as 'that
SE
been
might
reasonably prudent
which
have been the act of a
”
person under
the same circumstances.’ Ezzard v.
793).
(162
App.
Morgan,
50,
118 Ga.
SE2d
appellate
strictly
courts have
construed this test. See
(171
Liberty
Co.,
v. American
A trial court has a far discretion in prior judgment a default (b) § under Code Ann. 81A-155 subsеquent judgment than to the under Code Ann. Equity Corp., 46-410.See Clements United Scarboro, Hatcher v. 361) (concurring opinion). 104-105 setting judgment. The trial court erred in aside the Judgment Stolz, JJ, reversed. Deen and concur. January Submitted Decided March 1974. appellant. Stern, Cohen, Rose & Michael J. appellee. Walters, Jr., Scott 48522. SWIFT v. THE STATE. Judge.
Evans, during Jekyll A rock festival was held on Island traffic into the March, two During days heavy law enforcement group city county festival area a so on a four- personnel positioned conducted a roadbloсk Island would Jekyll traffic into highway only lane the roadblock as a designated affected. The officials *2 licenses, stickers, car check for drivers’ runaways. and registrations roadblock, 1,500 through this passed
Some cars Michael by van owned and driven 1971VW Swift, papers was and his stopped defendant. While Swift checked, car and an officer walked around Swift’s floormat, which he identified green vegetation saw on in the then searched the car and marijuana. as Officers found a of Swift was glove compartment bag marijuаna. charged marijuana possession. arrested and with motion to hearing suppress At on his that the officer had seen any Swift denied floormat, testified that vegetation on the and two'officers his car door and permission opened with no whatever asking get the car after him to out. Swift searched grounds on it was a mere ruse or attacked roadblock search of automobiles subterfuge justify general used to festival, there headed for the rock and contended that probable was no cause to search his car. suppress
The motion to was denied and defendant appeals. Held: suppress
Should the motion of defendant to evidence question The answer to that have been sustained? he deciding resolved whether the roadblock which by subterfuge was a or was a bona stopped was searched fide roadblock drivers’ purpose licenses, cars, If it inspection stickers on etc. was a illegal then the search was and defendant’s subterfuge, should been suppress motion have sustained. suppress The trial held that the motion to judge denied, argues and counsel for the state that evidence be finding, if there is evidence to authorize the court’s any that upheld. argued same should be to wit: Williams finding, cases authorize such following State, (167 State, v. v. Raines App. Ga. SE2d State, Harris 491); and App. SE2d the cited cases holds None of judge the trial to authorize evidence is sufficient any that there but rather suppress, motion to make a on course, evidence; the burden must be sufficient the search exists is cause for showing probаble State, Veasey the state. by that evidence discovered also contends
The state view does not things plain mere observation argument is that fallacy constitute a search. his vehicle stopped would not have even defendant illegal, being if the roadblock was search or was discovered subterfuge, whatever stopped would be otherwise while defendant any It is not contended inadmissible as evidence. seen while the vehicle was could have been the evidence principal set for the in motion. Was the roadblock automobiles, stickers on checking inspection licenses, etc., principal purpose or was its examine the illegal drugs? Let us seizing discovery facts. *3 Brunswick and set between
The roadblock was time when a rock with the Island to coincide Jekyll l't a matter of common Jekyll. held at being festivalwas who attend knowledge young people many illegal drugs suspected carrying these festivals are thereto. stickers, inspect
Who went to the roadblock licenses, 2. The Glynn etc.? 1. The Chief of Police. drivers’ to three members. Drug Squad, Abuse of from one County of the Brunswick Attorney 3. The Assistant District Investigative 4. An officer of the Naval Judicial Circuit. Department Police City Service. Members Brunswick, with him. 6. brought family one of whom from consisting Police Glynn Department, The County men, transporting 15 to 20 their duties County 7. The Glynn from the roadblock. prisoners away supervision Glynn County which is under Auxiliary, marijuana dog, 8. A 9. A Department. magistrate. Police dog witness testified the marijuana. trained to smell One 12) (Tr. check.” "for the drivers’ license present to conduct of man beast imposing array What a drivers’ license and sticker check! those naming present important who were on this licenses, occasion to check drivers’ let us not overlook the only perform ones who such customarily duties. Everyone who drives a car knows that from time to time his license is checked. And who does the checking? Why, Patrol, members of the Highway State of course! And there some actually representatives were of the State Patrol Highway present part of the time during this license But check. seemеd they completely disinterested, as if this was not something with which were they concerned.
The transcript, page at is as "Q. follows: Did you have from anyone patrol the state there? A. At times roadblock; there were troopers they made several traffic cases at They weren’t there very yes. ” much. (Emphasis supplied.) The state contends that as some traffic cases were made, this proves of the roadblock was to course, make traffic check. Not so! Of they made some cases for traffic violation. But they precious few; enough to tell how many. There were 65 illegal arrests for drugs! troopers, who always perform these duties at a roadblock "weren’t very there much.” What would any intelligent person make of their absence and their being disinterested in the whole matter by being absent most Remember, time for two days? these are the very the law who customarily conduct roadblocks officers of drivers’ license and inspection sticker inspections! Was it a subterfuge? Was the real purpose the apprehension illegal drugs? Why was the Chief of Police present—his job is not conducting roadblocks for drivers’ inspection? license Glynn
Why was County Drug Abuse Squad present? Did come out they to see whether in- spection stickers were on apprehend the cars or to *4 illegal drugs, in accordance with the of the squad name under which they operate?
Why was the Assistant Attorney present? District Why was there a magistrate present? they Were there to inspect licenses and stickers? an Why present was there officer of the Nаval Investigative Service? Department City Why Brunswick Police did family? to
appear it see Was member’s one with without a a driver transaction seeing sensational license, this be a source Could him arrested? and great entertainment? County Department, Glynn with Why Police did appear said it was One witness on the scene? to 20 men transported away might prisoners from the scene. be so hapless persons expected without an it that those Was jail? Or, inspection if a to be carted off sticker would immediately expirеd had would he driver’s license incarcerated? Auxiliary Glynn County Why feel did many necessary And how men to the roadblock? to come greatest Surely this one of in all? was were there inspection in our stickers licenses and checks on drivers’ history! state’s damaging to witness in come the most
Now we Why dog, imposing array. marijuana to trained did appear marijuana, He could smell smell roadblock? smelling expired day long without an driver’s all ever inspection license; was of an sticker. He or absence good alleged principal purpose, wit: no Checking at all they ifBut
of licenses and stickers. very help smelling marijuana, he was the needed article on out they they most, had him there! What needed They say, position "We the state assumes. ridiculous seize there to search for and discover and were not illegal drugs; we there to check they marijuana dog brought with licenses.” But their dog—if their license there such them and left home. animal—at stranger police in a
If bank at discover some caps midnight—with dynamite ex- and other explains plumber plosives—and he that he is a required looking what when the bank to see will be over plumbing plumbing tools at he its works on left apt very him and to to disbelieve home —the are blowing open the bank vault. think in mind the he has presented presents stronger here no case than is That Glynn County, on March the roadblock in whether really *5 drugs against completely as the unreasonable that it ridiculous contention and in was a fide bona good faith set check on drivers’ licenses and inspection stickers. license A
What unusual drivers’ сheck! few many—were do cases—we not know how made for traffic sixty-five illegal violations, but arrests were made for drugs. overwhelming contrary
The evidence to the sois compelling any finding so to the effect that this was a bona fide roadblock for the promptly licenses and aside. The search was stickers should be set
illegal sought and the evidence suppressed suppressed. in the motion have should been Judgment J., Bell, Deen, reversed. C. Quillian and Clark, JJ., J., Eberhardt, P. J., concur. Hall P. Pannell Stolz, JJ., dissent. Argued September Februаry Decided 14, Rehearing denied March Associates,
J.
Clark,
Hutto &
S.
Randall M.
G.
Palmatary,
appellant.
Carroll
Attorney,
Thomas, Jr.,
Glenn
District
Cletus W.
Bergen,
Barnaby,
appellee.
II,
II,
Robert A.
Presiding Judge, dissenting.
Hall,
apparent philosophy
position
behind the
taken
by majority opinion
the
will constitute a severe limitation
Georgia.
on law
enforcement
The actual decision
very
restricts the use of the roadblock—a
valuable
protecting
public upon
tool in
the members
the
highways
underlying approach
of this
But
state.
far-reaching,
even more
and foreshadows the intention
many
of this court to sit as a trial court when as five
judges
of our nine
hold notions about law enforcement
techniques
procedures
which conflict with
lawful
properly constituted law enforcement officers. This
majority
conclusion follows from the fact
opinion,
rejecting
completely
findings
the authorized
judge,
openly
avowedly passed upon
the trial
has
trial, and, entirely
appearing
credibility of witnesses
function,
has held that
fact-finding
usurping
purposes
pоlice lied
testimony
in their
fact-finding
appellate
principle
This new
roadblock.
appellate
from both
a host of decisions
in conflict with
terms of the
express
"By
example,
courts. For
Court of
Supreme
Court
Georgia,
Constitution
[and
only.
of errors of law
for the correction
is a court
Appeals]
(Code
2-3005)[now Code Ann.
par.
Art.
§
sec.
of fact.
undertake
to correct errors
can not
We
2-3704].
*6
and can
decide law
doing,
only
from so
are prohibited
We
placed
judges
limitation is
on the
But no such
questions.
merely
. .
is the function
court.
Ours
superior
Theirs
is the solemn
is followed.
see that
the law
it that
is administered
justice
to see to
responsibility
State,
Mills v.
as well as the
to the evidence
law.”
according
453).
(4
188 Ga.
623
SE2d
or the trial
jury
witness is for the
The
of a
credibility
38-1805; Gwin v.
a
Code
sitting
jury.
without
judge
393).
(1) (167
"credibility
SE2d
2. The roadblock.—It has been held that licenses, roadblock to check stickers, registrations car and driver intoxication does not amount to arrest or search and seizure when not done as a (1963). subterfuge. Automobiles, § AmJur2d Cf. State, Anderson v. 123 See *7 generally, Questioning Abiding Reich, Police of Law practice Citizens, 1161, 1167. L. Yale J. "The State can preventative therapy by reasonable road checks to legislative ascertain whether man and machine meet thе requires momentary determination of fitness. That this a stopping traveling of the citizen is not fatal. Nor is it inspection may produce proof because the the irrefutable just purpose that the law has been violated. The present, past: check is to determine car, the not the is the driving? is the driver now fit for further In the society’s accommodation of needs to the basic of disruption citizens to be free from of unrestricted travel by police stopping hopes uncovering officers cars the of stoрping the crimes,... evidence of nontraffic the for road acceptable. checks is reasonable and Likewise, therefore proper an arrest is if the check reveals a current violation taking place which its nature must have been in the Courts, including Federal and past. State immediate and arrests such checks one, sustained uniformly have Myricks ruse.” subterfuge a or when not done Cir.). (5th 901, States, F2d United gravest problems the that one of It noted should be public highways the carnage upon is the public befоre the the judicial responsibility, to this facing of our state. reasonable impair any not should government branch executive the and legislative that taken by means are are motor vehicles to insure that government branches drivers are and that inspected licensed properly under the not operating and are properly licensed extra- remedy against drugs. or influence of alcohol demands the reasonable satisfy is to legal police activity interrogation the prosecutors the the suspected persons. demanded that the that a
Swift contends general to conduct subterfuge used roadblock was a (1) manning personnel the roster searches because and the Chief of City Police roadblock Police, Squad, Abuse County Drug the Glynn of the Naval Attorney, District an officer Assistant Service, Police, dog trained County and a Intelligence (2) stopped the officer who marijuana; to sniff Drug Glynn County him Abuse was a member However, are viewed their Squad. when all facts be said that did authorize totality, they cannot thаt a was in existence. legal trial court find roadblock the two which during days The record shows that 1,500 passed cars approximately roadblock existed charged traffic through violations were drivers, these against only various 40 to cars searches, resulting in some 65 subjected to interior fact drug arrests. This alone rebuts contention making general for the roadblock was that the drugs. testimony search for There is exploratory cars roadblock were officers violations, for named runaways stickers and compiled by parents from calls officers had on list might to the rock going their children who believed *8 at the stopped this defendant was festival. While Drug Abuse by Glynn County an officer of roadblock 240 to
Squad, testimony there is the officer asked see his license, license, driver’s the officer examined the checked the window for the sticker and walked around during the car. The officer testified that check visual from he of green car outside vehicle saw traces on vegetation the floor the car that to him appeаred to marijuana. ample He testified to facts show to in ability experience differentiating marijuana from other then substances. He searched the car and found a bag marijuana glove compartment. in the The dog to marijuana trained detect was present the roadblock used in reference to this defendant. An officer that as approached testified some cars the roadblock windows, occupants threw out and the dog was used to locate beside the road. a
"Where there is conflict evidence on the motion to suppress, ruling of the trial court will be upheld any where there is to evidence authorize State, of his Brisendine order.” 130 App. (203 State, 249 (167 Williams v. 308); SE2d 557 756); 657(34)
SE2d
22A CJS
Law,
Criminal
(1961).
State,
(182
See Raines v.
123
State,
(170
743).
Harris v.
491);
3. Plain "plain view.—Under doctrine, view” by evidence discovered things mere observation plain view of the officer does not constitute a search. Ker Califоrnia, U. S. SC LE2d States, Harris v. United 992,19 U. S. SC LE2d point These decisions out that in order for the doctrine to apply, observer must have the position be in the to have that view and the seizure without warrant must be based upon "exigent circumstances” justifying failure to obtain a warrant. Coolidge v. New Hampshire, S. 443 U. SC 29 LE2d While a plurality Supreme Court has "inadvertent,” id., said that must be discovery there holding no definitive point. Because the roadblock here is a valid exercise of police power, testimony the officer that he was *9 checking outside from the roadblock the car at vegetation green on the traces of he saw vehicle when marijuana, appeared him to be to the car that floor of finding in to be he had the that a would discovery position have that view. to large plus of vehicles a number in the car contraband exigent circumstances are at the roadblock lined justifying Carroll to obtain a warrant. the failure LE States, 267 S. 132 SC United U. supra. States, ALR Harris v. United See ruling suppress, the to "burden
In on the motion showing probable State.” exists is on thе cause Veasey But, State, 113 prosecution "While the burden of must bear regard probable persuasion cause for a with to government search, need establish warrantless probable beyond Nor must a reasonable doubt... cause probable upon rest evidence which is a cause competent legally Rodgers, trial.” United States v. a criminal (5th Cir.). 442 F2d my opinion the trial court did not err overruling suppress. the motion to my opinion there was Conclusion.—Because judge’s finding ample evidence to authorize the trial designed purpose for the lawful the roadblock was registrations, etc., licenses, I do not have to question near a rock reach the festival, whether a roadblock admittedly even if conducted for investigating fit whether the drivers of automobiles were drugs, to drive or were under the influence of is a valid my However, I feel constrained to note view roadblock. that a law enforcement check on the of the driver fitness important is at least as automobile. as a check on the fitness of the important It is to remember that no one has right—constitutional or otherwise—to drive a car requirements are under all circumstancés. There fitness, driver, of automobile and to be met as a both privilege. again precedent yet, to that And condition authority discussing own without without its underlying premise majority easily to this holds effect, equipped mere fact that the officers here were that the drug enough violation is reason to rule the detect illegal. entire roadblock
I necessary reiterate that is not here to reach question validity roadblock established to drugged detect drivers. But I fault opinion the majority for its casual equation a search-for-drugged-drivers search,” prohibited "general with the my because in view, the two entirely question are and without different.
I would affirm. I am authorized Presiding state that Judge Judge Eberhardt concur Stolz in this dissent. Judge, special concurrence in dissent. Pannell, I agree that this court is bound the cases cited in holdings dissent and the any therein as to the *10 evidence rule credibility being of witnesses for the jury or judge trying reason, cases without a jury. For that I concur in the dissent.
Addendum. Judge.
Evans, I wish to reply to the dissent in this case. The majority opinion has not held that the lied in their testimony to the purposes roadblock. If the dissenters to say choose the in decision this case so establishes, then the responsibility saying the policemen lied rest upon must the dissenters—not upon majority. a judge grants When a new trial on the general grounds, as is duty his to do when the verdict manifestly (see is and palpably contrary to the evidence v. 70-202) McMillan 320; McCoy, Ga. Code is not a judgment the witnesses for the prevailing party lied. Surely dissenters must know that!
Was the in roadblock this case a mere subterfuge for illegal drugs? on Only policemen could reason, motive, intention, testify as to their real purpose, scienter in setting same The up. permitted law them to to their testify as motive or reason. But the investigation case, there! All in stops never evidence direct circumstantial, must be considered in order arrive Gazan, In Royce & Co. v. at real motive. (5), "A party may as to his testify intention. It is evidence to сonsidered, to be facts—all facts—are his real respecting the truth considered, to arrive Co., Ackerman Constr. also Childers motive.”See well 227), "It and citations. sometimes may evidence circumstantial settled that Kent, Minter outweigh testimony.” positive the roadblock up testified set they The policemen did licenses, etc., actually they drivers’ to check on their But licenses. very few—a few—drivers’ check all too clearly setting the roadblock motive real to the them accompanying of officers hоst by revealed magistrate, assistant scene the roadblock side was the trotting by their attorney, and prosecuting expired smell neither dog, could who sticker, license, tag or automobile expired nor out smelling limited expertise and whose through loud and clear— message The comes marijuana. subterfuge! to Dissent.
Addendum Hall, Presiding Judge. filed an amicus Georgia General of has Attorney rehearing. He in this case on motion
curiae brief Court in the rendered that "The decision states affects law enforcement adversely judice case sub including the Georgia, of the State of agencies and out Georgia Department Public Division of the Uniform Georgia By State Patrol. virtue Safety, known as sufficient interest to justify office the movant has law amicus curiae appearance *11 agencies Georgia.” of the State of enforcement " nothing ipso 'there facto We also note in the citizens under unconstitutional brief detention of arrest, for a justifying circumstances routine limited course inquiry ” 44, Oswald, 441 States v. F2d investigations.’ United State, (9th Cir.). v. Sеe also Connor (202 SE2d Supreme
It
that at
time when the
Court
is ironic
moving
the direction
United States
to search
of law enforcement officers
expanding
offenses,
court
for traffic
incident
to arrest
persons
impose
upon
power
seeks to
limitations
of those
officers to
traffic
United
detect
offenses. See
States v.
Robinson,
S. 218
U.
SC
LE2d
,
Gustafson v.
47699. GIORDANO et al. v. STUBBS et al. Per curiam. (Summer-Minter Court on Supreme certiorari Giordano, & 173)) Associates v. 601(203 231 Ga. having judgment reversed the court in Giordano of this Stubbs, 322), the judgment is vacated and sеt aside. In accordance with the opinion court, judgment the lower court is affirmed. Bell, J., Hall, J., Judgment C. P. affirmed. Eberhardt, J., Pannell, Deen, Evans, Quillian, P. Clark Stolz, JJ., concur. 1974. Decided March Haas, Holland, Gibert, Gibert, Levison & W. Hugh appellants. Richardson, & Richardson, Read Manning, Curtis R. appellees. WADDELL TODD et al. Judge. Quillian,
P. M. Todd, recovered a judgment against fi.fa., defendant E. E. Waddell. A fi.fa. was issued and was executed by levying upon approximately forty-two personal Waddell, items of Mrs. property. the defendant’s wife, interposed her claim by Upon affidavit. trial of Mrs. claim, Waddell’s jury rendered a verdict which made her successful claimant as to five of items claimed