# Jurisdictional Statement — Campbell v. Georgia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1052%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1977 - **Citation:** 429 U.S. 1083 ## Text | _ 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1052%3A1. Public record. Not legal advice.