Jurisdictional Statement — Campbell v. Georgia

| _ per 22 1976

IN THE MICHAEL RODAK, JR., CLERK

Supreme Court of the United States

OCTOE *R TERM, 1976

No. 76-862

JAMES HARRISON CAMPBELL, III,

Appeliant,

versus

THE STATE OF GEORGIA,

Appellee.

Appeal from the Court of Appeals of the

State of Georgia

JURISDICTIONAL STATEMENT ON APPEAL, or

alternatively, PETITION FOR WRIT OF CERTIORARI

PURSUANT TO 28 U.S.C. §2103

James A. McPherson

Attorney at Law

419 Carondelet Street

New Orleans, Louisiana 70130

Telephone: [504] 581-1973

SCOFIELDS’ QUALITY PRINTERS. P. O. BOX 53096. N. 0. LA. 70153 - 504/822-1611

«*

INDEX

Page

Table of Authorities Cited ...................eeeeee ii

Opinion Below .......... There eeeb netenedidesecacal 2

ES se i iid ei ce Chie ee nba biees 3

Statutes and Constitutiona! Provisions In-

MEE Lend suwakdidans ¢ebadedbacteeded eee: e seccees 6

i os atin ie be ein 6b ee oskee ee 7

I os cc enetcnceesequweet scents 8

A. Facts Material to the Questions

EE eee ccecdncedoeadgiieateeenskeeseons 8

B. Manner in Which the Federal

Questions Were Raised in the State

EE re er er ee ae 13

C. Grounds on Which Itis Contended that

the Federal Questions are Substantial .... 16

Argument in Support of Merits of Appellant’s

BEE Sedwdce bbasesbesiwescvecekedsnseecuthoccces 21

Pt occ teeth tend ecaredeenagebeeesseauknt 26

SE Ue SUED co ccccdcccevecccccecoeccepens 27

Appendix A — Notice of Appeal to United

RE rr Peet TT TTT la

Appendix B — Notice of Denial of Certiorari

by Georgia Supreme Court .................005. 3a

Appendix C — Order denying Petition for

Rehearing by Ga. Court of Appeals ............ 4a

Appendix D — Opinion of Ga. Court of

SE Sab ech COSC ECS eck bee ek ecdeiSeenesessccene 5a

ii

INDEX (Continued)

Page

Appendix E — Demurrer and Second Motion

to Suppress cee eee e eee e eee eeee eee eeeeaeen cena 9a

Appendix F — Order denying motion to sup-

ME ccc cccvcccccccsccccecescccescevecesesece ila

TABLE OF AUTHORITIES

CASES CITED:

Bailey v. Anderson, 326 U.S. 203 (1945) ............ 6

Campbell v. State, __. Ga.App. —, 228

SE ED Bbidc 6 dbs bE EE 06 Cove ceNceecedeccce 15

Clay v. United States, 246 F.2d 298 (5 Cir.) cert.

hs Se a, PE ono t-cceucdetasceguccecess 23

Jackson v. State, 129 Ga.App. 901, 201 S.E.2d

EN 6.4 9:65 00'0a0 646 66050696605 0046605000805 24

Lucich v. State, Md.App., 71 A.2d 432 (1950) ... 24,26

Mapp v. Ohio, 367 U.S. 643 (1961) ...............48. 7

Marron v. United States, 275 U.S. 192, 195

PT Lic ceueehd ed ReRGSSAPCESSEO coed eC eShS 25,26

Michigan-Wisconsin Pipe Line Co. v. Calvert,

ree, MPO dc ccaccceensecoeeseves tie 5

New York ex rel, Bryant v. Zimmerman, 278

ET ccacckbheveshenvebdesescakesssskiess 6

People v. Lujan, 484 P.2d1238(Colo.enbanc) ..... 24

Sibron v. New York, 392 U.S. 40 (1968) .. 4,8,17,21,22

Smith v. State, __. Ga. App. —__.,, 227 S.E.2d

TE Ci0s os 6g dcbdhneieveqgtdetawehenreees one 16

iii

TABLE OF AUTHORITIES (Continued)

Page

State v. Masco, 103 N.J.Super, 277, 247 A.2d

PO ey TEL ST TTT eee TL ST TRE 25

State v. Wise, 284 A.2d 292 (Sup.Ct.Del.) .......... 24

Street v. New York, 394 U.S. 576 (1969) ............ 6

Terry v. Ohio, 392 U.S. 1 (1968) ............. 4,8,17,22

Tucker v. Texas, 326 U.S. 517 (1946) ............... 5

United States v. Di Re, 332 U.S. 581

SINE 6.06 <Sbded dg Gu Kes aks coins wid 4,18,19,21,22,24

United States v. Festa, 192 F.Supp. 160

A tities al gheas Wi hs 64606 s ke ass a owees 23

United States v. Haywcod, 284 F.Supp. 245

Dy shethwistCekntoschendedeseceededacessoeses 23

United States v. Johnson, 154 U.S. App.D.C.

ey PT TEE * Scéwcecvevdobvvccecesoces 23

United States v. Riccitelli, 259 F.Supp. 665

I a ee os ie ges 23

United States v. Tellier, 397 F.2d 494 (7 Cir.

ES CeReeied cnsilen déneneest Heedenabecdvescseees 23

Vale v. Louisiana, 399 U.S. 30 (1970) ........... 6,20

Walker v. United States, 117 U.S. App.D.C.

151, 327 F.2d 597 (1963), cert. den. 377 U.S. 956

DEE 554 ehh acebmenesdanenesdedatense+60s000090'09 23

Williams v. Florida, 399 U.S. 78 (1970) ............. 5

Willis v. State, 122 Ga.App. 455, 177S.E.2d 487

EE cies tieUCA ede Ed bad aah es 66 660668 OL0 re Gane hoe 3

Wood v. State, 224 Ga. 121, 160 S.E.2d 368

Dt Sicciccudieel be nent bhuathavessécovess 3,16,17,19

iv

TABLE OF AUTHORITIES (Continued)

Page

Woods v. Neirstheimer, 328 U.S. 2111 (1946) ....... 5

CONSTITUTIONAL AND STATUTORY

PROVISIONS CITED:

United States Constitution

Amendment 4 .........s0eeeees 4,5,6,7,18,22,24,25

AmmemGment £4... cc cccccccccccescere 4,5,7,22,24,25

United States Code:

Tithe BB, BIDET 2. ckvcccidccterdétecctedeebebeue 5,6

Tithe BE, GEIGER... ccccossccncncesscesamenseuneen 6

Georgia Code Annotated:

SIPEG . no ccdscccecs 3,4,5,6,7,15,17,18,19,20,21,22,26

BVOABUIG) «2 0 2c ccdcccccccccdaccccsessecceseeaul 1

MISCELLANEOUS AUTHORITIES CITED:

79 C.J.S. Searches and Seizures §81 .............. 23

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

No.

JAMES HARRISON CAMPBELL, III,

Appellant,

versus

THE STATE OF GEORGIA,

Appellee.

On Appeal from the Court of Appeals of the

State of Georgia

JURISDICTIONAL STATEMENT ON APPEAL, or

alternatively, PETITION FOR WRIT OF

CERTIORARI PURSUANT TO 28 U.S.C. §2103

Appellant, James Harrison Campbell, III, appeals

from a judgment of the Court of Appeals of the State of

Georgia, which affirmed appellant’s conviction for

possession of cocaine with intent to distribute same,

an offense proscribed by the Georgia Controlled Sub-

stances Act, Ga. Code Ann. §79A-811(b) (Acts 1974, pp.

221, 243). As more fully appears hereinbelow,

Appellant challenged the constitutionality of the

search warrant and the statute under which the

Georgia courts alternatively held the search and

seizure sustainable in the Courts of the State of

Georgia. Appellant submits this statement to show

that the judgment of the Georgia Court of Appeals is

incorrect, that the Supreme Court of the United States

has jurisdiction of this appeal, and that such appeal

presents substantial questions of constitutional law

under the Fourth and Fourteenth Amendments to the

Constitution of the United States of America.

OPINION BELOW

The Order of the Supreme Court of the State of

Georgia, denying Appellant’s petition for a writ of cer-

tiorari to the Georgia Court of Appeals, is an un-

reported order. A post card reflecting the action of the

Georgia Supreme Court is attached as a part of the

Appendix filed with this Jurisdictional Statement.

The Opinion of the Georgia Court of Appeals, from

which this appeal is taken, is reported at __.Ga.App.

___., 228 S.E.2d 309, and the unreported order denying

a petition for rehearing is likewise annexed as a part

of the Appendix.

The opinion is dated July 1, 1976, reh. den., July 20,

1976, and was entered in the Georgia Court of Appeals

on or about that date.

The Supreme Court of Georgia denied Appellant's

petition for a writ of certiorari on September 23, 1976,

as evidenced by the aforementioned post card from the

Clerk of the Supreme Court of Georgia. The Notice of

Appeal to this Court was filed by Registered Mail,

Return Receipt Requested, in the Georgia Court of

Appeals, the highest court of the State of Georgia to

which Appellant could appeal as a matter of right,

3

hence which he could obtain a judgment, a copy of

which is annexed hereto as a part of the Appendix to

this Jurisdictional Statement.

JURISDICTION

Appellant moved the Trial Court to suppress the

evidence on the ground that the search warrant, under

the authority of which the police officers pretended to

act, was a general warrant in that it authorized the

search of certain designated premises and specified

person “and any other person on said premises who

reasonably might be involved in the commission of

the aforesaid violation of the laws of Georgia.” Other

attacks made against the validity of the search

warrant were that the said warrant delegated to the

executing police officers the power and authority to

search persons who “might” be involved, a standard

less than probable cause, and that, since the search of

all the persons found on the premises occurred prior to

the discovery of any violation of the Controlled Sub-

stances Act, the search of the “other persons” was an

unreasonable search and seizure. Appellant also

urged in the Trial Court that Ga.Code Ann. §27-309 was

unconstitutional on its face and as applied against

Appellant because it allows searches without prob-

able cause on the basis of a person’s mere presence

upon premises designated in a warrant to be searched.

The State of Georgia relied upon the holding of the

Supreme Court of Georgia, in Wood v. State, 224 Ga.

121, 160 S.E.2d 368 (1968), and Willis v. State, 122

Ga.App. 455, 177 S.E.2d 487 (1970), and Ga.Code Ann.

4

§27-309, for its position that the search warrant and the

search under its authority were legal.

The Trial Court overruled Appellant’s motion to

suppress the evidence and, after Trial by jury,

Appellant appealed the judgment of conviction to the

Georgia Court of Appeals, urging that the search

warrant authorized a general search and seizure

directed against persons for whom no probable cause

had been presented to a Magistrate, and that Ga.Code

Ann. §27-309(a), authorizing a search of “other per-

sons” for weapons was not responsive to the mandate

of Terry v. Ohio, 392 U.S. 1 (1968), or Sibron v. New

York, 392 U.S. 40 (1968), and that Ga.Code Ann. § 27-

309(b), authorizing the search of “other. persons”

found on the designated premises for evidence which

might be concealed on their persons violated the

proscription against unreasonable searches and

seizures contained in the Fourth and Fourteenth

Amendments to the United States Constitution, as es-

tablished by this Court in United States v. Di Re, 332

U.S. 581, 587 (1948). The Georgia Court of Appeals held

(___ Ga. App. —____, 228 S.E.2d at 312):

In summation, we note that the “other per-

sons” clause was superfluous; it neither made

the warrant general nor extended authority to

search anyone other than the person named,

i.e., “Tim.” However, because the officers were

executing a valid warrant, under Code Ann.

§27-309 they were permitted to make a very

limited search of those present in the apart-

ment at the time. When, in the course of that

search, officers found what they suspected to

be weapons or cocaine, they were authorized

under the statute to seize those items.

Appellant urged on petition for rehearing that the

facts in the record would not justify a search under

Ga.Code Ann. §27-309(a) or (b), conducted in conformi-

ty with the precedents of this Court, and that if the

provisions of the warrant were severable and the

search separately sustainable under Ga.Code Ann.

§27-309(a) or (b), “then Ga.Code Ann. §27-309 is uncon-

stitutional because it authorizes the search of the per-

son of persons on premises, without probable cause,

hence it authorizes an unreasonable search and

seizure in violation of the Fourth and Fourteenth

Amendments to the Constitution of the United States

of America.” Pet. for Reh., p. 14. The Court of Appeals

of Georgia denied the petition for rehearing, as afore-

said, and the Georgia Supreme Court declined to exer-

cise its discretionary power to review this case.

The Georgia Court of Appeals is the highest court of

the State of Georgia from which this appeal may be

taken, when the Georgia Supreme Court declines to

review the case on writ of certiorari. This appeal is

therefore properly made from the judgment of the

Court of Appeals of Georgia. 28 U.S.C. §1257; Williams

v. Florida, 399 U.S. 78 (1970); Tucker v. Texas, 326 U.S.

517 (1946); Woods v. Neirstheimer, 328 U.S. 211 (1946);

Michigan- Wisconsin Pipe Line Co. v. Calvert, 347 U.S.

157 (1954).

This is a proper case to be brought on appeal from

the state courts, pursuant to 28 U.S.C. §1257(2), since

the issue of the constitutionality of Ga.Code Ann. §27-

309 was directly contested in the Georgia Courts and

the opinion of the Georgia Court of Appeals, holding

that the “other persons” clause of the contested search

warrant was “superfluous” and that the search was

sustainable under Ga.Code Ann. §27-309 clearly

reflects that the said Court rejected Appellant’s argu-

ment against the constitutionality of the statute, that

being that §27-309 contravened the Fourth and

Fourteenth Amendments to the United States Con-

stitution, and upheld the validity of the said statute.

This case is thus properly before this Court on Appeal.

Street v. New York, 394 U.S. 576 (1969); Bailey v.

Anderson, 326 U.S. 203, 206-207 (1945); New York ex rel.

Bryant v. Zimmerman, 278 U.S. 63, 67 (1928). See, also,

Vale v. Louisiana, 399 U.S. 30, 31 (footnote) (1970), in

which this Court distinguished between cases

reviewable on appeal and those reviewable on writ of

certiorari.

Should this Court decide that jurisdiction does not

lie under 28 U.S C. §1257(2), then Appellant petitions

this Honorable Court to treat these papers as a petition

for a writ of certiorari pursuant to 28 U.S.C. §2103. See

Vale v. Louisiana, 399 U.S. 30, 31 (footnote) (1970).

STATUTES AND CONSTITUTIONAL

PROVISIONS INVOLVED

The Fourth Amendment to the United States Con-

stitution provides:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not

7

be violated, and no Warrants shall issue, but

upon probable cause, supported by Oath or af-

firmation, and particularly describing the

place to be searched, and the persons or things

to be seized.

The Fourteenth Amendment to the United States

Constitution, making the Fourth Amendment

applicable to and enforceable against the States

through its Due Process Clause [Mapp v. Ohio, 367

U.S. 643 (1961)], provides, in relevant part:

*** nor shall any State deprive any person

of life, liberty, or property, without due

process of law.

Georgia Code Ann. §27-309, provides:

In the execution of the warrant the person

executing the same may reasonably detain or

search any person in the place at the time:

(a) To protect himself from attack, or

(b) Toprevent the disposal or concealment

of any instruments, articles or things par-

ticularly described in the warrant.

QUESTIONS PRESENTED

1. WHETHER GA. CODE ANN. §27-309 MAY BE

FOUND TO BE CONSTITUTIONAL WHEN IT, AS

CONSTRUED IN THIS CASE, AUTHORIZES ROU-

TINE SEARCHES FOR WEAPONS WITHOUT THE

JUSTIFICATION REQUIRED AS A PREDICATE TO

A “PAT-DOWN” ENUNCIATED BY THIS COURT IN

TERRY V. OHIO, 392 U.S. 1 (1968), AND SIBRON V.

NEW YORK, 392 U.S. 40 (1968), AND FURTHER

AUTHORIZES THE POLICE TO ROUTINELY EX-

TEND A SEARCH AUTHORIZED TO BE CONDUCT-

ED OF SPECIFIED PREMISES TO THE PERSON OF

VISITORS ON THOSE PREMISES IN THE AB-

SENCE OF ANY SIGNS OF PROBABLE CAUSE TO

ARREST OR SEARCH SUCH VISITORS AT THE

TIME THEY ARE SEARCHED. -

2. WHETHER, IN THIS CASE, THE SEARCH

WARRANT CONTAINING A PHRASE AUTHORIZ-

ING POLICE TO SEARCH “OTHER PERSONS” WHO

“MIGHT” BE INVOLVED, CONSTITUTED A

GENERAL WARRANT AND VITIATED THE

SEARCH AB INITIO.

3. WHETHER THE SEARCH AND SEIZURE OF

APPELLANT WAS UNREASONABLE UNDER THE

FOURTH AND FOURTEENTH AMENDMENTS.

STATEMENT OF THE CASE

A. Facts Material to the Questions

Presented.

On June 23, 1975, Officer M. J. Waddell of the Atlanta

Narcotics Squad obtained a warrant from a Judge of

the Municipal Court of Atlanta authorizing the search

of 2572 Lenox Road, N.E., Apartment H-12, Atlanta,

Fulton County, Georgia, a person described as “Tim

(W/M),” “and any other person on said premises who

reasonably might be involved in the commission of

the aforesaid violation of the laws of Georgia.”

Armed with such a warrant, several narcotics of-

ficers went to the designated premises and, after a

period of surveillance during which the officers

observed Appellant Campbell enter the said premises,

the officers approached the described residence for the

purpose of executing the search warrant. The apart-

ment had a front and rear door. The officers went to

each door. The officers at the rear door made their

presence known and Timothy Deuser, the “Tim

(W/M)” mentioned in the search warrant, looked out

through a window in the door by raising acurtain. The

police testified they then identified themselves to

Timothy Deuser as police officers with a search

warrant. Timothy Deuser stepped away from the door

and did not immediately open it. Apparently fearing

that any evidence on the premises would otherwise be

destroyed, the police officers at the rear door broke

open the door and apprehended Timothy Deuser some

six or eight feet from the door, either in the kitchen or

in the dining room of the apartment heading for the

living room where some four or five other guests were

assembled. These officers immediately placed

Timothy Deuser under arrest and rushed into the liv-

ing room where his guests were located. Whether or

not the Atlanta policemen identified themselves to

Timothy Deuser at the kitchen door, there was no

testimony that the officers heard Deuser warn his

guests that the police were there and there is no

evidence that Deuser’s guests knew it was the police

who broke into the rear door of the apartment. At any

rate, there was confusion among Deuser’s guests,

10

some of whom were moving about and others who

simply stood up when they observed the intruders.

Appellant Campbell, when he saw the weapons, duck-

ed beside a television set to reduce the likelihood of be-

ing shot by persons breaking in the apartment. The

police officers made everyone submit to a search of

their persons. During the course of that search, one of

the officers felt a bottle in the front pocket of Appellant

Campbell’s trousers. The officer seized that bottle,

which contained a quantity of cocaine. Continuing the

search of Appellant Campbell, the officer discovered

two pistols in the rear waistband of his trousers, con-

cealed under a shirt. The weapons were not observed

by the police, nor was there any conduct on the part of

Appellant Campbell to indicate that he was armed.

Otherwise, the officers would have first disarmed him

before pursuing a search for evidence in his front

pockets. The record clearly reflects that the officers

seized the drugs from his front pocket before they even

commenced a search for weapons. On the hearing of

the Motion to Suppress, Detective Waddell testified

(Mo.Tr. 25):

** * Where did you find this plastic bottle?

In his right pocket.

In his right pocket?

Yes, sir.

Okay. Did you actually reach your handin

his pocket to get it, or did he take it out?

Can you remember exactly how it was?

A. Well, he had both hands on the wall so I

reached in and got it.

Q. And was that the first pocket you went

into, the best you remember?

O2>O>O

11

A. I can’t remember, Mr. Zell.

Q. Now, and then thereafter did you find the

weapons?

A. Yes, sir.

There can be no doubt about the order of the discovery

of the drugs and then the weapons, for Detective

Waddell was again questioned specifically about the

order of these discoveries and he reaffirmed that the

search of Appellant Campbell’s pockets for drugs pre-

ceded the search for weapons (Mo. Tr. 27):

Q. After you then reached your hand in Mr.

Campbell’s pocket and pulled out the

drug, the alleged drug, you then searched

him fully and found the weapons?

A. Yes, sir.

The search of the persons of Timothy Deuser and the

“other persons” having been completed, the officers

commenced a search of the premises for cocaine.

There was no evidence of crime apparent when the

officers entered and commenced their search of the

“other persons” on the premises. The testimony of Of-

ficer Colquitt, who discovered the cocaine, clearly es-

tablishes that the cocaine was concealed:

Q. ** * Now, this isadiagram — you weren't

here when it was drawn, but this is the

front door here, and this is the back door,

and there was a chair by the front door.

Was that the chair where the alleged drugs

were found?

2 >

Op ©

2 >O>

A.

The testimony of Detective Waddell, the officer in

charge of this operation, clearly establishes that the

> O> ©

12

Yes, sir.

Okay. Could you tell exactly where they

were found in the chair?

Okay. The chair had two cushions. One

that fits over the back of the chair that you

sit on.

Uh-hum. -

All I did was push the upright cushion

down and they were in a yellow manila

envelope behind that upright cushion.

So in seated here the upright cushion

would be this cushion here?

Yes, sir.

And it was found behind this upright

cushion? :

Yes, sir. (Trial Transcript, pp. 142-143)

* * 7 *

Everybody was laid out on the living

room floor and being watched at that

time?

Yes, sir.

Okay. And the alleged cocaine was found

over in the chair indicated by an R on that

diagram, is that correct?

Yes, sir.

Okay. By yourself?

Yes, sir.

It was not sticking out or sticking out of

the chair in any way, it was covered up, is

that right?

Yes, sir. (Trial Tr. 160-161)

13

searches of the “other persons” on the premises was a

routine action of the Atlanta police, taken without any

reasonable basis for believing that the officers were in

any apparent danger or without a reasonable basis for

believing that Timothy Deuser had passed anything to

anyone on the premises at or after the time the of-

ficers commenced the execution of the search warrant

(Trial Tr. 30-31, 32):

Q. It is your normal course and conduct to

search everyone found in the apartment?

A. Yes.

Q. That’s standard SOP or police procedure?

A. Yes, sir.

Q. In every case you make, upon entering the

apartment, if there are males they will be

searched, and if there are females you'll

get a matron and search the females?

A. Yes, sir, if one’s available.

+ © * *

Q. You don’t — when you entered the

premises in this particular case, you

searched everyone? It’s just your stan-

dard police policy that you do that when

you enter your [sic] apartment?

A. For our own protection, we do it.

The Manner in Which the Federal

Questions Were Raised In the State

Courts.

The issues presented by this appeal were raised in

the Superior Court of Fulton County, Georgia, by a

14

pleading entitled Demurrer and Second Motion to

Suppress, which is filed in Minute Book 385, page 415,

a copy of which is annexed as part of the Appendix to

this Jurisdictional Statement. The grounds for sup-

pressing the evidence were stated to be:

1.

That the police officers did search James

Campbell after entering an apartment pur-

suant to a search warrant which mentioned

only a person called Tim as the person to be

searched; that the police officers did search

the defendant without any probable cause or

underlying facts because he was present in the

living room and therefore said search was a

general search and was void and unconstitu-

tional, and the drugs found on him [should] be

suppressed.

2.

Defendant demurs to Ga. Code Ann. 27-309

(Acts 1966, pp. 567, 570) and shows that said

statute is unconstitutional on its face and as

applied since it allows the police officer to de-

tain and search any person located on the

premises without probable cause or any

underlying facts for the sole reason that the

person is merely present; that the standard in

said statute permits a detention and search

with less than probable cause and therefore

violates the Fourth and Fourteenth Amend-

ment of the United States Constitution.

15

An Order denying the Motion to Suppress was made

and entered on September 11, 1975, recorded in the

Minute Books of the said Court of first instance at

Book 383, page 385, a copy of which is annexed as a

part of the Appendix hereto.

The issue relative to the general nature of the search

warrant and of the subsequent search conducted pur-

suant thereto were raised in Appellant’s Original

Brief and in a document styled “Enumeration of

Errors.” The Georgia Court of Appeals apparently

agreed that the search warrant could not legally

authorize in advance the search of ‘other persons” on

the premises authorized to be searched, held that the

“other persons” clause of the search warrant was

“superfluous,” and held that the search was justifiable

under Ga. Code Ann. §27-309. Campbell v. State, ___

Ga.App. ——_, 228 S.E.2d 309, 312 (quoted ante, p. 3, un-

der heading, “Jurisdiction”). Following this develop-

ment, Appellant filed a Petition for Rehearing which,

at pages 13 and 14, stated:

*** If it is legal to construe that executed

authority within a search warrant may be

severable and [the validity of the search]

grounded on other authority, and if it is con-

strued that Ga.Code Ann. §27-309 authorizes

what was done in this case, then Ga.Code Ann.

§27-309 is unconstitutional because it

authorizes the search of the person of persons

on premises, without probable cause, hence, it

authorizes an unreasonable search and

seizure in violation of the Fourth and Four-

teenth Amendments to the Constitution of the

United States of America.

16

The Court of Appeals of Georgia, on July 20, 1976, de-

nied (.e Petition for Rehearing, a copy of which Order

is Annexed hereto as part of the Appendix to this

Jurisdictional Statement. The Supreme Court of Geor-

gia denied a Petition for Writ of Certiorari and thus de-

clined to review the judgment of the Georgia Court of

Appeals. A copy of a notice of the Court’s action is an-

nexed hereto to show that the judgment of the Georgia

Court of Appeals is a final judgment or decree by the

highest court of Georgia in which a decision could be

had, thereby permitting an appeal to this Court from

the Georgia Court of Appeals, rather than the

Supreme Court of Georgia, upon the authority of the

cases heretofore cited in the portion of this Jurisdic-

tional Statement entitled “Jurisdiction.”

C. Grounds on Which it is Contended that the

Federal Questions are Substantial.

The statute of the State of Georgia, Ga.Code Ann.

§27-309, authorizes the indiscriminate search of per-

sons on premises designated to be searched by a

search warrant, without any necessity for the officers

to have probable cause for a search or reasonable

grounds for a frisk. The Georgia Supreme Court

supposedly has limited the applicability of Ga.Code

Ann. §27-309 (a), relative to searches for weapons, to

those cases “where the executing officer may reason-

ably believe that it is necessary” to protect himself

from attack. Wood v. State, 224 Ga. 121, 124, 160 S.E.2d

368 (1968). The Georgia Court of Appeals, in Smith v.

State, ___ Ga. App. —__., 228 S.E.2d ____ (1976), decid-

ed only weeks prior to the decision in the present case,

reaffirmed that the conditions to such a search must be

A

= :

’

17

found compatible with the constitutional limitations

imposed by this Court in Terry v. Ohio, 392 U.S. 1

(1968), and Sibron v. New York, 392 U.S. 40 (1968),

decided after the decision of the Georgia Supreme

Court in Wood v. State, supra. Yet, the Georgia Court

of Appeals has apparently repudiated this limitation

upon protective searches under Ga. Code Ann. §27-309

since there was no showing in the courts of the State of

Georgia, at any time, of any particular facts, within

the officers’ knowledge and understanding prior to the

commencement of the search here in issue, from

which it could have been “reasonably inferred that the

individual was armed and dangerous.” Sibron v. New

York, supra, at 64. This Court held that such condition

is necessary in order for a search for weapons to be

reasonable in police confrontations short of arrest.

The Georgia Court of Appeals, citing Terry v. Ohio,

supra, for the proposition that a search for weapons

must be limited to a pat-down of the person’s outer

clothing, completely disregarded the operative condi-

tion upon which such protective frisks might be

initiated, i.e., the reasonableness of a belief that the

person is armed. Terry v. Ohio, supra, at 27; Sibron v.

New York, supra, at 64. The Terry case was con-

sidered to have presented a Federal question suf-

ficiently substantial to invoke the exercise by this

Court of its supervisory jurisdiction on writ of cer-

tiorari. The Sibron case, dealing with a statute permit-

ting the so-called “stop and frisk”’ of persons suspect-

ed of criminal activity, was determined to present a

substantial Federal question and this Court exercised

its appellate jurisdiction in that case. Here, the Geor-

gia Court of Appeals has chosen not to base the

authority of the search upon the “other persons”

18

clause of the search warrant, which it regarded to be

“superfluous,” but instead squarely justified the

search here on the provisions of the statute. The

failure to require that the commencement of the

weapons search be based on facts from which the of-

ficers could have reasonably inferred the “other per-

sons” were armed, and the simple justification of the

search on the basis that “Code Ann. §27-309 specifical-

ly gives the officer the right to search for weapons,”

228 S.E.2d at 312, is a diminution of the Fourth Amend-

ment protection against unreasonable protective

searches for weapons which is substantial in terms of

constitutional protections of the individual and is a

proper case for review by appeal in this Court.

The search of the person of Appellant for evidence of

the possession of cocaine was said to have been justi-

fied under Code Ann. §27-309(b). There was no showing

that any violation was evident prior to the search of

Appellant Campbell’s pocket. As previously stated,

the cocaine which was located on the premises was

concealed and was not evident when the officers com-

menced the — search of the “other persons” on the

premises. This Court, in United States v. Di Re, 332

U.S. 581, 587 (1948), stated:

The Government says it would not contend

that, armed with a search warrant for a

residence only, it could search all persons

found in it. But an occupant of a house could be

used to conceal this contraband on his person

quite as readily as can an occupant of a car.

Necessity, an argument advanced in support

of this search, would seem as strong a reason

19

for searching guests of a house for which a

search warrant had issued as for search of

guests in a car for which none had been is-

sued. By a parity of reasoning with that on

which the Government disclaims the right to

search occupants of a house, we suppose the

Government would not contend that if it hada

valid search warrant for the car only it could

search the occupants as an incident to its

execution. How then could we say that the

right to search a car without a warrant con-

fers greater latitude to search occupants than

a search by warrant would permit?

** * We are not convinced that a person, by

mere presence in a suspected car, loses im-

munities from search of his person to which he

would otherwise be entitled.

The Ceorgia Court of Appeals has disregarded the

fundamental principle, recognized and applied in the

Di Re case by this Court, that the search of the person

of an occupant of a house or a car authorized to be

searched does not render the search of the person

reasonable. The Supreme Court of Georgia, in Wood v.

State, supra, regarded these principles to be dicta and

refused to apply them. The Georgia Court of Appeals,

in all subsequent cases, has likewise treated the Di Re

holding as dictum. We respectfully submit that the

application of these principles were necessary to the

holding of this Court in the Di Re case and are not dic-

ta. The holding of the Georgia Court of Appeals that

Ga. Code Ann. §27-309(b) subjects the occupants of

premises authorized to be searched to the loss of their

personal immunity against unreasonable searches

and seizures flies in the face of valid constitutional

principles established by this Court, thereby present-

ing a substantial Federal question for review under

the appellate jurisdiction of this Court.

In Vale v. Louisiana, 399 U.S. 30, 31 (1970), this Court

said in a footnote:

Although the state court referred to this stat-

ute in the course of its opinion, we do not

understand its opinion to be grounded on the

statute. We therefore dismiss the appeal and

treat the papers as a petition for certiorari,

which is hereby granted. 28 U.S.C. § 2103.

There was not mere reference to Ga. Code Ann. §27-309

in this case. The Georgia Court of Appeals said (228

S.E.2d at 311-312):

*** Thus, if defendant's search is to be up-

held on the basis of the warrant, the state must

demcnstrate that the officer acted under either

of the two justifications provided by Code §27-

309. ,

o * * * .

_ In summation, we note that the “other per-

sons” clause was superfluous; it neither made

the warrant ,eneral nor extended authority to

search anyone other than the person named,

i.e., “Tim.” However, because the officers were

executing a valid warrant, under Code Ann.

21

§27-309 they were permitted to make a very

limited search of those present in the apart-

ment at the time. When, in the course of that

search, officers found what they suspected to

be weapons or cocaine, they were authorized

under the statute to seize those items.

For the foregoing reasons, it is respectfully sub-

mitted that the questions presented are so substantial

as to require plenary consideration, with briefs on the

merits and oral argument, for their resolution.

Argument In Support Of Appellant’s Conten-

tion That The Opinion Below Is Contrary To

Controlling Legal Principles Under The

Fourth And Fourteenth Amendments To The

United States Constitution.

Primary reliance is placed by Appellant upon this

Court’s opinion in United States v. DiRe, supra, thata

person’s persona: immunity against unreasonable

searches and seizures is not forfeited by his mere

presence on premises for which a magistrate has

authorized a search. Further reliance is placed by

Appellant upon the holding of this Court in Sibron v.

New York, supra, in which this Court stated, at page

64:

‘Before [an officer] places a hand on the person

of a citizen in search of anything, he must have

constitutionally adequate, reasonable

grounds for doing so. In the case of the self

protective search for weapons, he must be able

to point to particular facts from which he

reasonably inferred that the individual was

armed and dangerous.

The record in this case clearly reflects that the officers

here did not have the slightest notion that Appellant

Campbell was armed. He obeyed their command to

stand with his hands placed against the walls and the

officer who searched him acknowledged that the

weapons were discovered after the search for evidence

had been commenced and produced a quantity of

cocaine. It would be unreasonable to conclude that this

was a protective search under the limitations con-

stitutionally imposed in the Terry and Sibron cases.

As demonstrated by the quoted testimony of Detective

Waddell, ante, the search of Appellant was nothing

more than the routine action of police officers in

Georgia, where the novel “other persons” warrant has

been developed and the Georgia Courts have sustain-

ed its legality. The holdings of constitutionality,

however, cannot square with the DiRe, Terry or

Sibron cases, and the holding that Ga. Code Ann. §27-

309 nevertheless authorizes the search here is

erroneous and contravenes Appellant's rights under

the Fourth and Fourteenth Amendments to the United

States Constitution.

“Other persons” warrants have never been

attempted in the Federal Courts, or, if they have, they

must have been summarily rejected by those courts

for there is no reported Federal case dealing with such

warrants. “Other persons” searches, however, have

been made and sustained or rejected upon the basis of

the discovery of probable cause or the lack of probable

cause upon entering the premises authorized to be

searched. E.g., United States v. Tellier, 397 F.2d 494 (7

Cir. 1968); United States v. Riccitelli, 259 F.Supp. 665

(D.Conn. 1966); United States v. Johnson, 154

U.S.App.D.C. 393, 475 F.2d 977 (1973); United States v.

Haywood, 284 F.Supp. 245 (D.La.); United States v.

Festa, 192 F.Supp. 160 (D.Mass). The Tellier, Riccitelli

and Johnson cases each dealt with searches of

women’s purses which had been put down and were

not being then worn by them nor did the women claim

their purses so that the police would have been on

notice that the purses were their separate property.

Each of those opinions indicate that if the purses were

then being “worn” by the women or if they claimed

them, the police would not have been allowed to search

them. The Haywood and Festa cases each suppressed

evidence seized from the persons of guests on

premises lawfully searched. Another line of cases

dealing with the search of guests on premises

authorized to be searched turn on the fact that

probable cause was discovered when the officers saw

the guests committing or participating in an on-going

crime. E.G., Walker v. United States, 117 U.S.App.D.C.

151, 327 F.2d 597 (1963), cert. den., 377 U.S. 956 (1964);

Clay v. United States, 246 F.2d 298 (5 Cir.), cert. den.,

355 U.S. 863 (1957). Those cases are distinguishable

from the instant case on the basis that a search was re-

quired to discover the cocaine and weapons on

Appellant’s person and to discover the cocaine con-

cealed in the back of the chair.

79 C.J.S. Searches & Seizures §81, p. 886, states that

“a search warrant is not illegal as a general warrant

merely because it authorizes a search of certain

premises together with all persons found thereon.”

24

The original authority for that proposition of law was

‘Lucich v. State, Md.App., 71 A.2d 432 (1950). In that

case, however, the affidavit on which the search

warrant was based demonstrated probable cause for

the magistrate to believe that each and every person

found on the premises at the time the search warrant

was executed would be there for illicit purposes. See

71 A.2d at 434. The affidavit described the use of a

motel by couples for short periods of time, after which

the motel attendants would clean the rooms and rent

them to other persons. The traffic was all local people

and consisted of heterosexual couples. The Georgia

Court of Appeals, in Jackson v. State, 129Ga.App. 901,

201 S.E. 2d 816, 819 (1973), relied upon that excerpt

from Corpus Juris Secundum in affirming the search

there, but none of the bases for determining that

everyone present would be criminally involved ex-

isted in that case. This necessity was completely

overlooked by the Georgia Court of Appeals. That

Court relied upon the Jackson case in affirming

Appellant's conviction, still disregarding the critical

difference that made the Lucich warrant legal and this

one illegal under the Fourth and Fourteenth

Amendments to the United States Constitution.

In People v. Lujan, 484 P.2d 1238 (Colo, en banc), the

Court held that the police had no right to search the

purse of one guest or the pockets of another while ex-

ecuting a search warrant for the premises.

Relying on United States v. DiRe, the Court, in State

v. Wise, 284 A.2d 292 (Sup. Ct. Del.) held that a warrant

authorizing the search of “any occupant or oc-

cupants” was a violation of the Fourth and Fourteenth

Amendments to the United States Constitution.

In State v. Masco, 103 N.J. Super. 277, 247 A.2d 136

(1968), the Court held that “other persons” warrants

are unconstitutional but treated the clause as

severable and considered the search as having been

justified on after-discovered probable cause.

It is obvious from the above cited authorities that a

search warrant authorizing the search of persons who

were not even known to exist at the time the

magistrate determined probable cause cannot be justi-

fied under the particularity requirement of the Fourth

and Fourteenth Amendments to the United States Con-

stitution. There can be no probable cause, determined

by a magistrate, unless facts and circumstances are

presented to the magistrate from which he can in-

dependently determine probable cause. Where, as

here, the magistrate delegates authority to the police

to determine who “might” reasonably be involved in

the crimes referred to in a search warrant, he has even

authorized the intrusion upon the personal security of

guests upon a standard less than probable cause. That

was done here, which also renders the search warrant

in this case to be a general warrant. Marron v. United

States, 275 U.S. 192, 195 (1927).

And finally, we respectfully disagree with the Court

below and with the Court in the Masco case, wherein it

was held that the “other persons” clause is severable

from the search warrant. The severance of a clause

acted upon by the executing officers overlooks the fact

that a search warrant is directory in its nature,

commanding the officers to do all that is ordered by it,

and that search warrants must be sufficiently explicit

as to prevent the seizure of one thing under a warrant

26

describing another. Marron v. United States, supra. To

have judicially construed, after the consumation of

the authority contained in the warrant, that the search

warrant did not really mean that the officers could

search the other persons present, except as they were

authorized to do by Ga. Code Ann. §27-309, does not

cure the fact that the officers here acted under a grant

of unconstitutional authority, printed in every search

warrant issued out of the Courts in Fulton County,

Georgia, routinely, without any showing to the

magistrate or to the Court reviewing the search

warrant of any probable cause to believe that

Appellant or any other guest likely to be present

would be in possession of cocaine. Accord, Lucich v.

State, supra. These distinctions make a difference and

should not have been disregarded by the Court below.

CONCLUSION

Appellant, James Harrison Campbell, III, prays that

this Court will place this cause on the Appellate

Docket and, after briefs and oral arguments herein,

that the judgment of the Court below will be reversed

and this cause will be remanded to the Georgia courts

for entry of an order suppressing the unconstitu-

tionally seized evidence.

Respectfully submitted,

JAMES A. MC PHERSON

Attorney for Appellant

419 Carondelet Street

New Orleans, Louisiana 70130

Telephone: [504] 581-1973

27

CERTIFICATE OF SERVICE

I, James A. McPherson, attorney for James Harrison

Campbell, III, appellant herein, and a member of the

Bar of the Supreme Court of the United States, hereby

certify that on the 2ist day of December, 1976, I served

copies of the foregoing Jurisdictional Statement on

the parties thereto, as follows:

1. On the State of Georgia, by mailing a copy ina

duly addressed envelope, with air mail postage

prepaid, certified, return receipt requested, to the At-

torney General of Georgia, Of*ice of the Attorney

General, Atlanta, Georgia;

2. And upon opposing counsel who has

represented the State of Georgia in the proceedings

heretofore had in the Georgia Court of Appeals and in

the Supreme Court of Georgia on application for a writ

of certiqrari, by mailing a copy in a duly addressed

envelope, with air mail postage prepaid, certified,

return receipt requested. to Honorable Lewis Slaton,

District Attorney’s Office, 3rd Floor, Fulton County

Courthouse, Atlanta, Georgia 30303.

All parties required to be served have been served.

JAMES A. MC PHERSON

Attorney at Law

419 Carondelet Street

New Orleans, Louisiana 70130

Telephone: [504] 581-1973

la

APPENDIX A

IN THE COURT OF APPEALS OF GEORGIA

NO. 52309

JAMES HARRISON CAMPBELL, III,

Appellant

versus

STATE OF GEORGIA,

Appellee.

APPEAL FROM THE SUPERIOR COURT

OF

FULTON COUNTY

NOTICE OF APPEAL TO UNITED

STATES SUPREME COURT

Notice is hereby given that James Harrison

Campbell, III, the appellant above named, hereby

appeais to the Supreme Court of the United States

from the final order affirming the judgment of convic-

tion, dated July 1, 1976, entered herein on or about July

20, 1976, following the denial of a timely petition for

rehearing on that date. The Supreme Court of Georgia

denied a timely petition for a writ of certiorari on

September 23, 1976, in case No. 31645, sub nom.

Campbell v. State.

2a

This appeal is taken pursuant to 28 U.S.C. §1257(2).

/s/ JAMES A. McPHERSON

JAMES A. McPHERSON

Attorney for Appellant

419 Carondelet Street

New Orleans, Louisiana 70130

Telephone: [504] 581-1975

CERTIFICATE OF SERVICE

I, James A. McPherson, attorney for James Harrison

Campbell, III, appellant herein, and a member of the

Bar of the Supreme Court of the United States, hereby

certify that, on the 20th day of December, 1976, I served

copies of the foregoing Notice of Appeal to the

Supreme Court of the United States on the parties

thereto, as follows:

1. On the State of Georgia, by mailing a copy ina

duly addressed envelope, with air mail postage

prepaid, registered, return receipt requested, to the

Attorney General of Georgia, Office of the Attorney

General, Atlanta, Georgia;

2. And upon opposing counsel who has represent-

ed the State of Georgia in the proceedings heretofore

had in the Georgia Court of Appeals and in the

Supreme Court of Georgia on application for a writ of

certiorari, by mailing a copy in a duly addressed

envelope, with air mail postage prepaid, registered,

return receipt requested, to Honorable Lewis Slaton,

District Attorney’s Office, 3rd Floor, Fulton County

Courthouse, Atlanta, Georgia 30303.

3a

All parties required to be served have been served.

/s/ JAMES A. McPHERSON

JAMES A. McPHERSON

Attorney at Law

419 Carondelet Street

New Orleans, Louisiana 70130

Telephone: [504] 581-1975

Attorney for Appellant

Campbell

APPENDIX B

CLERK'S OFFICE, SUPREME COURT OF GEORGIA

Dear Sir:

Case No.3 Lo SLE. —AaA?? Sj K

OOF tee meee teen eee seeeeeeeroeerees

TOO OREO Rees OO OOE ORES Hee meee eeeee ee eeeereeeeeee

Very truly pay ce Cre Ce eT ee

MRS. JOLINE B. WILLIAMS, Clerk

— —_—e

4a

APPENDIX C

COURT OF APPEALS

OF THE STATE OF GEORGIA

ATLANTA, July 20, 1976

The Honorable Court of Appeals met pursuant to

adjournment.

The following order was passed:

52309. J. H. Campbell v. The State

Upon consideration of the motion for a rehearing

filed in this case, it is ordered that it be hereby denied.

COURT OF APPEALS OF THE STATE OF GEORGIA

CLERK’S OFFICE, ATLANTA

JUL. 20, 1976

I certify that the above is a true extract from the

minutes of the Court of Appeals of Georgia.

Witness my signature and the seal of said court

hereto affixed the day and year last above written.

/s/ MORGAN THOMAS

CLERK

Cite as 223 SE26 368

J. H. CAMPBELL

v.

The STATE.

No. 52309.

Court of Appeals of Georgia,

Division No. 1.

July 1, 1976.

Rehearing Denied July 20, 1976.

Defendant was convicted in the Fulton

County, Superior Court, G. Ernest Tidwell,

J., of violating the state Controlled Sub-

stanées Act, and he appealed. The Court of.

Appeals, Stolz, J., held that affidavit in

support of search warrant alleged criminal

activity with sufficient specificity; that in-

formant’s statement that cocaine was cur-

rently being stored at apartment was suffi-

cient to fulfill requirement that informa-

tion in affidavit for search warrant be cur-

rent; that inclusion of “other persons”

clause did not render warrant void as a

general warrant; and that where officers

were executing valid search warrant for

search of person named “Tim,” they were

permitted to make very limited search of

those present in apartment at time, and,

when, in course of that search, officers

found what they suspected to be weapons

or cocaine, they were authorized under stat-

ute to seize those items.

Affirmed.

1. Drugs and Narcotics 188

Where affidavit supporting search war-

rant stated that confidential informant had

given officer-affiant information that,

while present in apartment, informant ob-

served persons known to him as users of

cocaine frequenting said location and that

cocaine was now being stored at apartment,

and where affidavit stated that informant

had been present in apartment on two spe-

cifie dates and had personally observed

“Tim” using, selling, and storing cocaine,

affidavit described criminal activity with

sufficient specificity for proper issuance of

6a

warrant, though not particularly describing cealed by his shirt had no relevance in de-

the “known” cocaine users or how they

were known.

2. Drugs and Narcotics ¢ 188

Informant’s statement that cocaine was

currently being stored at apartment subject

to search warrant was sufficient to fulfill

requirement that information in affidavit

supporting warrant be current, though affi-

ant was not informed of any pending drug

transaction.

3. Searches and Seizures @3.7

Where search warrant specifically iden-

tified person and place to be searched and

was not directed at searching any person

who might happen to enter public place

during search, inclusion of “other persons”

ciding whether or not they were subject to

seizure under statute specifically giving po-

lice officers right to search for weapons,

which right i limited to pat down of per-

son's outer clothing, since fact that weapons

were concealed from view by defendant's

shirt would not preclide their being felt by

police during pat down. Code, § 27-309.

7. Drugs and Narcotics ¢ 189

Where police officers were executing

valid warrant for search of a person named

“Tim,” they were permitted to make very

limited search of those present in apart-

ment at time, and, when, in course of that

search, officers found what they suspected

to be weapons and cocaine, they were au-

clause in warrant for search of apartment™ thorized under statute to seize those items.

would not render it void as a general war-

rant. -

4. Searches and Seizures @3.8(2)

Under search warrant containing “oth-

er persons” clause which was iyterpreted to

give police no authority to search persons

other than “Tim,” who was named in war-

rant, search of defendant, who was present

in apartment where “Tim” was located,

would be illegal unless it could be upheld

due to practical necessities of search envi- .

ronment, under the two justifications speci-

fied by statute. Code, § 27-309. .

5. Drugs and Narcotics ¢ 189

Evidence, including fact that police of-

ficers had observed several persons entering

apartment which they believed to be situs

of several cocaine sales, that “Tim” would

not open door and permit their entry, and

that defendant and his companions had

tried to hide from them when they entered,

together with knowledge that cocaine was

frequently stored in small plastic bottles,

was sufficient to authorize police to remove

and seize small plastic bottle and two load-

ed pistols found in pat-down search from

defendant hiding in apartment, even

though search warrant only authorized

search of “Tim.” Code, § 27-309.

6. Searches and Seizures ¢=3.3(5)

Fact that two lokded pistols were

tucked under defendant's belt and con-

Code, § 27-309.

Glenn Zell, Atlanta, James A. McPherson,

New Orleans, La., Skidmore, Barrett & Jen-

kins, Timothy N. Skidmore, Kenneth T.

Humphries, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J.

Drolet, Gordon H. Miller, Donald J. Stein,

Asst. Dist. Attys., Atlanta, for appellee.

STOLZ, Judge.

This is an appeal from defendant Camp-

bell’s conviction of violating the Georgia

Controlled Substarices Act. The essential

question before us is whether under a war-

rant directing the search of “Tim (w/m)”, a

certain apartment located in Fulton Coun-

ty, “and any other person on said premises

who reasonably might be involved in the

commission of the aforesaid [drug] viola-

tions of the laws of Georgia,” police were

authorized to search the defendant who was

present in the apartment at the time of the

search.

The facts pertinent to this appeal are as

follows. Prior to execution of the warrant,

police officers had placed the premises un-

der surveillance for several hours, during

which time police observed several persons

arrive at and enter the apartment Police

then knocked at the back (kitchen) door and

7a

identified themselves when someone peered

through the window curtain. However,

rather than open the door, this person, later

identified as “Tim,” headed toward the liv-

ing room. Thereupon police made a forced

entry into the kitchen, apprehended “Tim,”

and proceeded immediately to the living

room to round up the other people in the

apartment. Upon entering the iiving room,

police observed defendant Campbell trying

to hide behind the television. Campbell

contends that, not knowing who the intrud-

ers were, he had simply tried to hide from

them. The officers searched the appellant,

finding a small plastic bottle containing

white powder in his pocket and two loaded

pistols under his belt.

1. The affidavit supporting the warrant

stated that a confidential informant had

given the officer-affiant information that,

while present in the apartment, “he ob-

served persons known to him as users of

cocaine frequenting said location ,

{and] that cocaine is now being stored at

[the apartment].”

Appellant contends that the warrant was

issued without probable cause in that the

supporting affidavit contained no descrip-

tion of these “known” cocaine users, did not

disclose how the users became known to the

informant, and did not allege that the affi-

ant was informed of any impending drug

transaction.

{1,2} The affidavit states that the infor-

mant had been present in the apartment on

two specific dates and had personally ob-

served “Tim” using, selling, and storing co-

caine. Further, the informant had ob-

served other cocaine users frequenting the

premises and had stated that “Tim” was

currently storing cocaine there. That the

“known” cocaine users, or how they were

known, were not particularly described, has

no bearing on this case in light of our

holding, in Division 3 below, that the “other

persons” clause in the warrant did not

broaden the officers’ authority to search

anyone other than “Tim.” As to the speci-

ficity of the informer’s information, we be-

lieve that the criminal activity was describ-

ed so that a magistrate might know that it

was more than “a casual rumor circulating

in the underworld or an accusation based

merely on the individual’s general reputa-

tion.” Spinelli v. United States, 393 U.S.

410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637;-

ef. Jackson v. State, 129 Ga.App. 901, 904,

201 S.E.2d 816. As to the appellant’s con-

tention that the affiant was not informed

of an impending drug transaction, the in-

formant’s statement that cocaine was cur-

rently being stored at the apartment was

sufficient’ to support the requirement that

information in an affidavit be current. See

Cochran v. State, 136 Ga.App. 94, 220

S.E.2d 83.

{3} 2 The appellant also argues that

the inclusion of an “other persons” clause

renders this a general warrant. However,

this warrant specifically identifies the per-

son and place to be searched, and, unlike

the situation in Wilson v. State, 136 Ga.

App. 70, 221 S.E.2d 62 and State v. Cochran,

135 Ga.App. 47, 217 S.E.2d 181, it was not

directed at searching any person who might

happen to enter a public place during the

search. “{A] warrant which identifies the

premises and its owners or occupants is not

void as a general warrant because it autho-

rizes the search of other persons found

there who may reasonably be involved in

the commission of the crime for which the

warrant is issued.” Willis v. State, 122

Ga.App. 455, 457, 177 S.E.2d 487, 488; ac-

cord, Jackson v. State, 129 Ga App.

901(1)(d), 201 S.E.2d 816, supra.

[4] 3. With particular regard to the

“other persons” clause in this warrant, we

note that this language gives police no au-

thority to search persons other than “Tim”

unless such search falls within the ambit of

Code Ann. § 27-309. Language identical to

that contained in this warrant was con-

sidered in our opinion, issued this month, in

Smith v. State, 138 Ga.App. 129, 227 S.E.2d

911, whereln we stated that Code Ann.

§ 27.309 “describes the maximum extent to

which the particularity of description re-

quired by the Fourth Amendment may be

encroached upon by the practical necessities

of the search environment. [Cits.] Thus, if

defendant’s search is to be upheld on the

basis of .the warrant, the State must dem-

onstrate that the officer acted under either

of the two justifications provided by Code

§ 27-309.” See also Wallace v. State, 131

Ga.App. 204, 205 S.E.2d 523.-

{5} 4. Code Ann. § 27-309 allows a

very limited search of persons: present on

the premises at the time of the search to

look only for weapons or for the items

particularly described in the warrant. The

record discloses that police found a small

plastic bottle in the defendant’s right pock-

et during the search. Whether or not that

bottle could be removed from the defend-

ant’s pocket depended upon whether police

reasonably believed that this bottle con-

tained cocaine. The state presented evi-

dence that they had observed several per-

sons entering an apartment which they be-

lieved to be the situs of several cocaine

sales, that “Tim” would not open the door

to permit their entry, and that the defend-

anc and his companions had tried to hide

from them when they entered. This evi-

dence together with the knowledge that

cocaine is frequently stored in the small

plastic bottles was sufficient to authorize

police to remove and seize the bottle of

white powder. See Willis v. Statg, supra.

[6] As the search of defendant Campbell

continued, police found two loaded pistols

tucked under his belt. The fact that these

,weapons were concealed by the defendant's

‘shirt, which hung over his belt, has no rele-

vance in deciding whether or not they were

subject to seizure. Cofle Ann. § 27-309

specifically gives the officer the right to

search for weapons. In conjunction with

Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20

L.Ed.2d 889, this right is limited to a pat-

down of the person’s outer clothing. Smith

v. State, supra. That the weapons were

concealed from view by the defendant’s

shirt does not preclude their being felt by

police during a pat-down.

There is some trial testimony indicating

that all occupants of the apartment were

strip-searched. However, both the defend-

ant and the state indicate that the weapons

were seized from under the defendani’s

shirt and thus we conclude that if a strip-

8a

search did indeed occur, it took place after

the weapons were seized.

This case is unlike Jones v. State, 126

Ga.App. 841, 192 S.E.2d 171, where police

armed with a warrant to search “Barry”

and the “entire first floor of a two-story

frame dwelling”, could not locate Barry and

instead searched two male occupants, who

merely were playing chess by candlelight.

Nor is this case similar to Wallace v. State,

supra, or Smith v. State, supra, both of

which involved searches of a person arriv-

ing at the premises after the search had

begun and as to whom there was otherwise

no probable cause.

{7] In summation, we note that the

“other persons” clause was superfluous; it

neither made the warrant general nor ex-

tended authority to search anyone other

than the person named, i. e. “Tim.” How-

ever, because the officers were executing a

valid warrant, under Code Ann. § 27-309

they were permitted to make a very limited

search of those present in the apartment at

the time. When, in the course of that

search, officers found what they suspected

to be weapons or cocaine, they were autho-

rized under the statute to seize those items.

Judgment affirmed.

BELL, C. J., and CLARK, J., concur.

BEST COPY AVAILABLE

Pee

APPENDIX E

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

THE STATE,

Plaintiff

P

versus Case No. 27791

JAMES CAMPBELL,

Defendant

Filed: Sep. 19, 1975

DEMURRER AND SECOND MOTION

TO SUPPRESS

COMES NOW the Defendant, JAMES CAMPBELL,

in the above styled case and shows as follows:

1.

That the police officers.did search James Campbell

after entering an apartment pursuant to a search

warrant which mentioned only a person called Tim as

the person to be searched; that the police officers did

search the defendant without any probable cause or

underlying facts because he was present in the living

room and therefore said search was a general search

and was void and unconstitutional, and the drugs

found on him be suppressed.

10a

2.

Defendant demurs to Ga. Code Ann. 27-309 (Acts 166,

pp. 567, 570) and shows that said statute is unconstitu-

tional on its face and as applied since it allows the

police officer to detain and search any person located

on the premises without probable cause or any under-

lying facts for the sole reason that the person is mere-

ly present; that the standard in said statute permits a

detention and search with less than probable cause

and therefore violates the Fourth and Fourteenth

Amendment of the United States Constitution.

WHEREFORE, Defendant prays his Demurrer and

Motion be granted.

/s/ GLENN ZELL

GLENN ZELL

Attorney for Defendant

Suite 822

15 Peachtree Street, N.E.

Atlanta, Georgia 30303

(404) 524-6878

CERTIFICATE OF SERVICE

This is to certify that I have this day served Lewis

Slaton, District Attorney of Fulton County, Fulton

County Courthouse with a copy of this Demurrer and

Second Motion To Suppress by personal service.

This 19 day of September, 1975.

/s/ GLENN ZELL

GLENN ZELL

Attorney for Defendant

iia

APPENDIX F

IN THE SUPERIOR COURT OF FULTON COUNTY

STATE OF GEORGIA

STATE OF GEORGIA

versus INDICTMENTS

NO. A-27791-92

JAMES H..RRISON CAMPBELL,

CHARLES MAXWELL ROBINSON,

ANTHONY STEVE WHITFIELD,

AND TIMOTHY JOSEPH DEUSER

Filed: Sept. 12, 1975

ORDER

The Motions of each of the defendants in the above-

styled matters to suppress the evidence having come

on for hearing, after hearing evidence and argument,

said Motions to Suppress of each and every defendant

are hereby overruled upon each and every ground

thereof.

IT IS SO ORDERED.

This 11th day of September, 1975.

/s/ E. G. TIDWELL

JUDGE

Fulton Superior Court,

A.J.C.

cc: Gordon Miller, Esq.

301 Fulton County Courthouse

L. Paul Cobb, Esq.

917 William-Oliver Bldg.

Atlanta, Georgia 30303

Timothy N. Skidmore, Esq.

455 E. Paces Ferry Rd., N.E.

Atlanta, Georgia 30305

Glenn Zell, Esq.

15 Peachtree St., N. E.

Atlanta, Georgia 30303

Jim Jenkins, Esquire

Suite 834

15 Peachtree Street

Atlanta, Georgia 30303