Petition — Bramblett v. Georgia

Supreme Court, U. S$,

FILED

} OCT 28 1977

MICHAEL RODAK, JR., CLERK

|

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

NO. @¢-618

HOWARD BRAMBLETT,

—

Petitioner

THE STATE OF GEORGIA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

WM. RALPH HILL, UR.

ATTORNEY FOR PETITIONER

Wm. Ralph Hill,Jr.

P. O. Box 1350

Lafayette, Georgia 30728

INDEX

OPINIONS DS 666066 6606 ob604666.0%08 66.02 06m

JURISDICTION... cccccccccccccccccscces cocccee 2

QUESTIONS PRESENTED...... ccoecccccccceseceseawa

STATUTES INVOLVED.......-+0e- coccccccccccee 3

STATEMENT OF THE CASE........ coccccccccccc sh

REASONS FOR GRANT OF CERTIORARI........-+. 13-21

CONCLUSION... ccecccecs coerce ccccccccece 22

APPENDIX "A"

Opinion of the Supreme Court

GE GOORSLR sc cco ccccccccsecececeesecese A-1

APPENDIX "B"

Order of Supreme Court of Georgia

Denying Motion for Rehearing........ B-1

APPENDIX "C"

Notice of Appeal to United States

Supreme Court.....2ceeeeeee eccccccce C-1

TABLE OF AUTHORITY

Cases:

Bennett vs. Cottingham,

290 F. Supp 759, 762..cccccce eecccecceoce 21

TABLE OF AUTHORITY (Continued)

Cases-Continued: Page

Carroll vs. United States,

267 U.S. 132 (45 S. Ct. 280, 69 L.E. 543)...16

Chambers vs. Maroney,

399 U.S. 42(90 S. Ct. 1975, 264 L.E. 2d 419)16

Chapman vs. United States,

365 U.S. 610(81 S.Ct. 776, 5 L.E. 2d 828)...16

Chimel vs. California,

395 U.S. 752(89 S.Ct. 2034,23 L.E. 2d 685)..15

Connally vs. Georgia,

429 U.S.245(97 S.Ct. 546, 50 L.E. 2d 444)....20

Coolidge vs. New Hampshire,

403 U.S. 443(91 S.Ct. 2022, 29 L.E. 2d 564).13

Shadwick vs. City of Tampa,

407 U.S. 345. cccccccccccccccce coc cccccccccs 21

Tumey vs. Ohio,

273 U.S. 510(47 S.Ct. 437, 71 L.E. 749).....21

Ward vs. Monroeville,

409 U.S. 57(93 S.Ct. 80, 34 L.E. 2d 267)....21

Statutes:

28 5 Aw = D Baw loccoecose 6eeNeeeseescencese 2

ii

IN THE SUPREME COURT OF THE UNITED STATES

TABLE OF AUTHORITY (Continued)

OCTOBER TERM, 1977

Statutes-Continued: Page ,

HOWARD BRAMBLETT, :

PETITIONER

Georgia Code Annotated § 24-604.....4+eeee2+ 5 F : CASE NO.

-versus-

Georgia Code Annotated § 24-820.....-e+eeee+ 5 :

STATE OF GEORGIA,

Georgia Code Annotated § 24-1601 RESPONDANT :

(Acts 1877, pp. 83-84; 1878-9, p. 191;

1882-3, p.110; 1887, p. 55; 1909, p. PETITION FOR WRIT OF CERTIORARI TO

175; 1918, p. 124; 1919, p.99; 1949, pp.

956-959; 1958, pp. 201, 202; 1967, p. 469)5,20 THE SUPREME COURT OF GEORGIA

Petitioner respectfully prays that a Writ

of Certiorari issue to review the Final Order

‘ of the Supreme Court of Georgia in the case of

HOWARD BRAMBLETT versus STATE, being NO. 31,781,

decided June 7, 1977, which order affirmed the

Judgment of the Court of Appeals of the State

of Georgia.

OPINIONS BELOW

The order of the Supreme Court of Georgia

in case No. 31,781, decided June 7, 1977,

‘ affirming the judgment and opinion of the

Court of Appeals of Georgia was accompanied by

an official opinion which is reported at

M4 * * -l-

1il

Volume 239 of the Georgia Reports pages 336-

342 (1977). The judgement and opinion of the

Court of Appeals of Georgia affirming the

conviction of the Petitioner is reported at

Volume 139 of the Georgia Appeals Reports,

pages 745-751 (1976).

JURISDICTION

The final order of the Georgia Supreme

Court which affirmed the conviction of the

Petitioner in the Whitfield County Superior

Court was decided on June 7, 1977. Since

substantial Federal Questions arising under

the Constitution of the United States are

involved in this case, the jurisdiction of this

Court is invoked under the provisions of

Article III Section 2, of the Constitution

of the United States, 28 United States Code

Section 1257 (3) and Rule 19 (a) of the rule

of the United States Supreme Court.

QUESTION PRESENTED

(I) Was the warrantless seizure of a

motor vehicle, which was parked in a driveway

at the time of its seizure, done without

probable cause in violation of the Fourth and

Fourteenth Amendments to the Constitution of

the United States?

(III) Subsquent to the seizure of the

parked motor vehicle was it searched illegally

under a search warrant which was issued by a

magistrate who was not neutral and detached

as required by the Fourth and Fourteenth

Amendments to the Constitution of the United

States?

CONSTITUTIONAL PROVISIONS INVOLVED

FOURTH AMENDMENT TO THE CONSTITUTION OF

THE UNITED STATES: FOURTEENTH AMENDMENT TO THE

CONSTITUTION OF THE UNITED STATES.

STATEMENT OF THE CASE

The facts necessary to place in their

setting the questions presented in this case

were raised by a Motion to Suppress filed by

Petitioner and can be briefly stated as

follows:

(a) STATEMENT OF PLEADINGS IN THE CASE:

The Petitioner was indicted jointly with

his brother, LEONARD BRAMBLETT and HOWARD

GODFREY on Indictment No. 9269 in the Whitfield

County Superior Court, charged in Count One

(1) with the offense of burglary and in Count

Two (2) of said indictment with the offense

of theft by taking. Count Two (2) of the

indictment alleged that the Defendant did

unlawfully "take eleven (11) cases of yarn

Beaunit 2500-2 Ply Lot No. 172, of the value

of ONE THOUSAND NINE HUNDRED AND TWENTY-FIVE

DOLLARS ($1,925.00), property of M. Lowenstein

and Sons, Inc., d/b/a Wamsutta Carpet Mills,

with the intention of depriving said owner

of said property." (R. 2,3). A Motion to

Supress illegally seized evidence was filed in

the Superior Court of Whitfield County (R-4-6)

on November 20, 1975. The Motion to Supress,

as amended, alleged that on or about the 18th

or 19th day of August, 1974, the Defendant

LEONARD BRAMBLETT and the Petitioner were

arrested by law enforcement officers at the

residence of LEONARD BRAMBLETT in Dalton,

Whitfield County, Georgia, and that said arrest

and entry was warrantless and without probable

cause. The Motion to Supress, as amended also

alleged that the seizure of the van truck which

contained the allegedly stolen property was

illegal and contrary to the Fourth and Fourteenth

Amendments to the Constitution of the United

States (R. 2,3). In addition, the amended

Motion to Supress alleged that the warrant to

search the 1974 Super Van Ford was issued by

Justice of the Peace who was not a neutral

and detached magistrate at the time of the

issuance of said warrant because he had a

direct pecuniary interest in the issuance of

said warrant inasmuch as he and all other

Justices of the Peace in the State of Georgia

received or are entitled to receive Five Dollars

for the issuance of every search warrant and

are entitled to receive no amount if one is

refused or if he finds no probable cause in

accordance with GA. CODE ANNO. §24-604, 24-820,

and 24-1601. (R.4-6)

(b) STATEMENT OF FACTS:

At the hearing on the Petitioner's Motion to

Supress, held November 20, 1975, the State of

-5-

"-«

of Georgia called two witnesses to testify as

to the legality of the search and seizure of the

1974 Van which was seized by law enforcement

officers at the residence of LEONARD BRAMBLETT

in Dalton, Georgia on or about the 18th or 19th

day of August, 1974. HAROLD POE, an agent of

the Federal Bureau of Investigation and DON

GRIBBLE of the Dalton Police Department testified

that on August 18, 1974, they participated in

a stake-out of the Crown America Warehouse in

Dalton, Georgia. They testified that they were

there pursuant to information which they had

received that yarn was being stolen from Crown

Cotton Mill where it was stored. (Motion to

Supress Hearing, T.2) Mr. Carlisle of Wamsutta

had verified the fact that Wamsutta Yarn stored

at the Crown America Warehouse was missing.

(Motion to Supress Hearing, T.2) The information

the law enforcement officers had received

indicated that a certain individual driving a

certain type van with a certain license number

was going to be stealing yarn on a particular

evening. (Motion to Supress Hearing, T.2) As

agent Poe was driving his car toward the Crown

-6=

America Warehouse at approximately 11:30 P.M.,

he pulled into behind a certian van and testified

that at the point they had no reason to suspect

the van in front of them, but later after check-

ing the license number of the wank that was

supposed to have been there, "it was the same

tag." Mr. Poe testified that the van pulled

to the front gate and a man wearing dark clothing

got out of the van and walked into the guard

shack, and the man driving the van turned the

lights off and drove past the guard shack and

into the darkness. Mr. Poe testified that a

few minutes later a man came out of the darkness

from the direction in which the vehicle had

turned and was wearing a light colored shirt.

Poe testified that a few minutes later both

men left the guard shack and went into the

building directly behind the guard shack. At

approximately 12:55, Poe testified a van similar

to the one which he had seen go into the ware-

house area exited from the complex in front of

the guard shack and Poe started his car and

immediately followed it to a point or Selvidge

Street. Poe testified as follows:

; ; Agent Poe testified on cross-examination that

"We got in behind it close enough

two or three days before August 18, 1974, they

to see either at that point or

, ° had obtained their information from a reliable

just before it turned into the

source. (Motion to Supress Hearing, T. 7) He

driveway that the back windows ,

testified further on cross-examination that

were obscured by something

Pets ; after the van was seen leaving the area of

inside. The license tag of

Crown America Warehouse, he followed the

the vehicle we pulled in

vehicle, and when he got to a point of fifty to

behind in this driveway was the

seventy-five feet away, he observed that the

same one that we had pulled in

windows were obscured. (Motion to Supress

behind before.... The driver of

Hearing, T.9) He testified further on cross-

the vehicle got out and I asked

; rae : : examination as follows:

him his name and he said it was ®

: Q. "Saw the windows obscured? But

HOWARD BRAMBLETT. I told him

that he was under arrest and I al you can't testify at that time

: from what you physically observed

immediately notified Don Gribble y phy y

; ' and saw, you can't testify as to

and had been talking to him on

what they were obscured b

the radio while I was in pursuit Y y,

Oing back in point of time?"

of the vehicle....He (Don Gribble) g g P

; ; A. "From my view, no sir."

arrived, called a black and white

| - "You can only say and can onl

unit, and from that point I more Q only Y Cc y

or less stepped aside as there . testify truthfully, all you

1 is at t windows

was no violation over which I had could see that the

. were obscured?"

any jurisdiction or did the |

A. “Yes.”

Government...." (Motion to Supress

Hearing, T. 3, 4, 5) -9-

=~

"That the truck pulled into the

residence of 519?"

"If that's the address, yes, sir."

"Now, let me ask you this

question, did you park your

vechicle on the street or did

you pull your vehicle into the

driveway?"

"Pulled in into the driveway."

"And did you pull up right

behind the van?"

"Oh, not to where I was touching,

there may have been ten feet

between us."

"Now up until the time that you

had pulled up within fifty to

seventy-five feet and saw the

windows obscured in the van, other

than from information you had

received and the fact that this

vehicle fits the description and

fits the tag number, you had observed

no criminal activity, had you? No

traffic law had been violated?"

-10-

A. "Not that I know of." (Motion

to Supress Hearing, T.9)

Agent Poe testified that the Defendant's Exhibit

No. 1 showed approximately where the van was

pulled when it stopped. (Motion to Supress

Heaing, T. 10,26). He recalled that the motor

in the van truck was turned off and did not

remember whether anyone was in the house at 519

Selvidge Street. (Motion to Supress Hearing, T.11)

He testified also that when he entered the

driveway at 519 Selvidge Street, he had no

warrant to search the house or premises or the

van. (Motion to Supress Hearing, T. 12)

Don Gribble of the Dalton Police Department

testified that on August 18, 1974, he participat-

ed in the stake-out of Crown America Warehouse,

that he signed the affidavit for the search

warrant to search the 1974 model Ford Super Van

described in State's Exhibit No. 1. (Motion

to Supress Hearing, T. 19) The State then

introduced into evidence State's Exhibit No. l,

the affidavit of the search warrant and State's

Exhibit No. 2 and the Search Warrant itself.

(Motion to Supress Hearing, T. 14, 15, 24, 25)

oie

The Search Warrant was issued by Jimmy Campbell,

a Justice of the Peace of Dalton, Georgia, after

the seizure of the vehicle in the yard at 519

Selvidge Street. The van was then searched

pursuant to the warrant by law enforcement

officers at the City Hall. (Motion to Suppress

Hearing, T. 18) (Emphasis supplied) The van was

pulled approximately thirty feet up into the

driveway as is shown in Defendant's Exhibit No. l.

(Motion to Suppress Hearing, T. 19) Investigator

Gribble testified that the motor to the vehicle

was turned off and the Petitioner and his

brother were sitting in the backseat of a black

and white police car when he arrived. (Motion

to Suppress Hearing, T. 19) Detective Gribble

testified that he did not remember seeing anyone

at the house located at 519 Selvidge Street at

that time. (Motion to Suppress Hearing, T. 19)

Both the Petitioner and his brother were under

arrest at that time and were taken to jail.

(Motion to Suppress Hearing, T. 20) Detective

Gribble testified that he radioed and called

for a wrecker from "Whaley's" and towed the

truck from 519 Selvidge Street to the police

o12<

station. (Motion to Suppress, T. 20) It

was then after agent Poe and other law

enforcement officers had entered onto the

premises of 519 Selvidge Street and towed the

van to the police station that search warrant

was obtained. (Motion to Suppress, T. 20)

No evidence was introduced on the issue of

whether or not Justice of the Peace was

neutral and detached magistrate despite the

allegations in Paragraphs eight (8) and nine

(9) of the amended Motion to Suppress. The

trial Judge overuled the Motion to Suppress.

(Motion to Supress, T. 23)

REASONS FOR GRANT OF WRIT OF CERTIORARI

(1) WAS THE WARRANTLESS SEIZURE OF

A MOTOR VEHICLE, WHICH WAS PARKED IN

A DRIVEWAY AT THE TIME OF ITS SEIZURE,

DONE WITHOUT PROBABLE CAUSE IN VIOLATION

OF THE FOURTH AND FOURTEENTH AMENDMENTS?

The Supreme Court of the United States set forth

in

most emphatically/its opinion in COOLIDGE VS.NEW

HAMPSHIRE, 403 U.S. 443 (91 S. Ct. 2022, 29 L.E.

2d 564) (1971), as a guiding principle in the

realm of Constitutional search and seizure the

following:

"Thus the most basic Constitutional

rule in this area is that ‘searches

conducted outside the Judicial

Process, without prior approval by

Judge or Magistrate, are per se

unconstitutional under the Fourth

Amendment - Subject only to a few

specifically established and well-

delineated exceptions’. The

exceptions are ‘jealously and

carefully drawn,' and there must

be 'a showing by those who seek

exemption that the exigencies of

the situation made that course

imperative.’ ‘The burden is on

those seeking the exemption to show

the need for it."

COOLIDGE, Supra 454, 455.

In accordance with this Court's pronouncement in

COOLIDGE Supra, the warrantless search, therefore,

of the premises at 519 Selvidge Street was per se

unreasonable and unconstitutional under the Fourth

Amendment since it was made without prior judicial

SyY=

approval, and it was encumbent upon the State

of Georgia as the party seeking exemption from

the requirement of a warrant to show that the

exigencies of the situation made a warrantless

entry and seizure imperative. The Petitioner

argues that the State of Georgia failed to

show the need for such a seizure at that point

and both the Court of Appeals and Supreme Court

of Georgia have erred in holding that the need

for such a seizure was shown and that there

was probable cause for a warrantless seizure

and that the Trial Judge properly overruled

the Petitioner's Motion to Suppress illegally

obtained evidence.

The search in this case cannot be justified

as a seizure incident to a lawful arrest for the

protection of the arresting officers or to prevent

the destruction of evidence. CHIMEL VS.

CALIFORNIA, 395 U.S. 752 (89 S. Ct. 2034, 23

L.E. 2d 685). At the time of the arrest of

the Petitioner, the area subsquently seized by

the officers was not in the possession of or

under the control of either the Petitioner or

his brother and the affirmative testimony of

=) 5-

the officers was that there was nobody at home

at 519 Selvidge Street when the Petitioner and

his brother were arrested. (Motion to Suppress

Hearing, T. 3, 4, 5)

It is equally clear that the warrantless

seizure cannot be justified on the grounds

that it was an emergency situation. CHAPMAN

VS. UNITED STATES, 365, U. S. 610, 615 (81

S. Ct. 776, 779, 5 L.E. 2d 828)

Both the Court of Appeals of Georgia and

the Supreme Court of Georgia have attempted to

justify this illegal and improper search and

seizure on the ground as stated in the Opinions

by both Courts that the factual situation

presented by this case falls within the auto-

mobile exception to the warrant requirement as

pronounced by this Court under CARROLL VS. UNITED

STATES,267 U. S. 132 (45 S. Ct. 280, 69 L.E. 543)

and as followed by this Court in CHAMBERS VS.

MARONEY, 399 U.S. 42 (90 S. Ct. 1975 264, L.E. 2d

419 (1970). But the rationale of both CARROLL,

Supra and CHAMBERS, Supra simply do not fit the

factual context of this case.

The Supreme Court of Georgia in its opinion

==

stated after considering the fasten’ euntent

of this case that "There is no indication that

the agents in the present case had an opportunity

to obtain a warrant prior to the time they

followed the van into the driveway and arrested

the defendant." (Appendix A-9) (239 GA. 336,

340) Agent Poe testified however, that the

information from his reliable source had

indicated a theft would occur two or three days

prior to August 18, 1974, and that the van was

described and the tag number even given to him.

(Motion to Suppress Hearing, T. 7) He had

time between the date he was furnished the

information and August 18, 1974, to verify

with Mr. Carlisle that yarn was, in fact,

missing as he testified, but the Supreme Court

of Georgia does not perceive that law enforcement

officers had ample time to procure a warrant

to search. (Motion to Suppress Hearing, T. 2)

That is patently ridiculous and absurd!

Petitioner urges this Court as he has

urged the Court of Appeals of Georgia and the

Supreme Court of Georgia that COOLIDGE VS. NEW

HAMPSHIRE, Supra, is applicable to the facts of

olJe

this case and that a search warrant was required

to search the motor vehicle.

"The word ‘automobile is not a

talisman in whose presence the

Fourth Amendment fades away and

disappears. And surely there

is nothing in this case to invoke

the meaning and purpose of the

rule of CARROLL VS. UNITED STATES

-- no -lerted criminal bent on

flight, no fleeting opportunity

on an open highway after a hazardous

chase, no contraband or stolen

weapons, no confederates waiting

to move the evidence, not even the

inconvenience of a special police

detail to guard the immobilized

automobile." Supra, page 461, 462.

The uncontradicted testimony of the law

enforcement officers at the scene of the arrest

was that the Petitioner and his brother were both

under arrest. The motor vehicle which contained

the suspected contraband was parked in a driveway

of the residence of the Petitioner's brother, the

-18-

motor was turned off and no reason articulated

by any officer indicated they suspected that

confederates were waiting to move the evidence

or that it would have been inconvenient to place

a special police detail to guard the immobilized

automobile until a warrant was obtained. Under

the facts and circumstances as presented by the

record in this case the Supreme Court of the

United States has an opportunity to once again

reiterate and clarify its pronouncement and

holding in COOLIDGE, Supra, that "the word

‘automobile' is not a talisman is whose presence

the Fourth Amendment fades away and disappears, "

by holding that a warrant was required to seize

and search the motor van in this case.

(II) SUBSQUENT TO THE SEIZURE OF THE

PARKED MOTOR VEHICLE WAS IT SEARCHED

ILLEGALLY UNDER A SEARCH WARRANT WHICH

WAS ISSUED BY A MAGISTRATE WHO WAS NOT

NEUTRAL AND DETACHED AS REQUIRED BY

THE FOURTH AND FOURTEENTH AMENDMENTS

TO THE CONTITUTION OF THE UNITED STATES?

The Petitioner argues that the search warrant

-19-

which was issued by the Justice of the Peace

United States Constitution in order to search

in this case was not issued by a neutral and

the motor vehicle under the facts and circumstances

detached magistrate as required by the Fourth

of this case. The search warrant which was issued

and Fourteenth Amendments to the United States

was done so by a Justice of the Peace who had a

Constitution, in that, he was entitled to

direct pecuniary interest in the issuance thereof

receive a fee of FIVE DOLLARS ($5.00) for the

and he was not, therefore, neutral and detached.

issuance of the search warrant and was entitled

Although CONNALLY, Supra, was decided after the

to received no amount if he refused the search .

date of this trial, the Petitioner raised the

warrant. GA. CODE ANNO. §24-1601 (Acts 1897,

exact same issue before the Trial Court at the

pp. - 83, 84; 1878-9 p. 191; 1882-3, p. 110; , est

first opportunity afforded him and the Petitioner

1887, p. 55; 1909, p. 175; 1918, p. 124; 1919, ;

argues that CONNALLY, Supra, is controlling

p. 99; 1949, pp. 956-959; 1958, pp. 201, 202; ; ,

authority and that the Trial Court erred in

1967, p. 469) The Supreme Court of the United a :

denying the Petitioner's Motion to Suppress

States in CONNALLY VS. GEORGIA, 429 U.S. 245(97 S.

, evidence illegally obtained. COOLIDGE VS.

Ct. 546, 50 L.E. 2d 444) has declared the fee

NEW HAMPSHIRE, Supra; SHADWICK VS. CITY OF

systems, under which the Justice of the Peace of

TAMPA, 407 U.S. 345, 350 (1972); WARD VS.

the State of Georgia issued the search warrant

MONROEVILLE, 409 U.S. 57 (93 S. Ct. 80, 34 L.E.

in this case to be unconstitutional in that it

2d 267) (1972); TUMEY VS. OHIO, 273 U.S. 510,

destroys the neutrality and impartiality of a

531 (47 S. Ct. 437, 71 L.E. 749) (1927);

magistrate who must find probable cause. As

BENNETT VS. COTTINGHAM, 290 F. Supp. 759, 762

argued by Petitioner previously a search warrant (1968)

was required to be issued by a magistrate which

was neutral and detached within the meaning of

the Fourth and Fourteenth Amendments to the

yr tin |

-21- | BEST COPY AVAILABLE

=20-

CONCLUSION

The Judgement and opinion of both the

Court of Appeal of Georgia and the Supreme

Court of Georgia are a unique and unusual

departure from a long line of authority

established by this Court which must be

corrected by the grant of this Court's Writ

of Certiorari to review the opinion and order

of the Supreme Court of Georgia affirming the

Petitioner's Conviction.

Respectfu subm)

ne J)

ATTORNEY FOR/PETITZONER

WM. RALPH HILL, JR.

ATTORNEY AT LAW

POST OFFICE BOX 1350

LAFAYETTE, GEORGIA

30728

-22-

yp 1 Mf” LE 4 MK

PVH /F f a

APPENDIX A

IN THE

SUPREME COURT OF GEORGIA

NO. 31,781

HOWARD BRAMBLETT,

Appellant,

versus

THE STATE OF GEORGIA,

Appellee.

Appeal from the Superior Court of

Whitfield County, Georgia

(June 7, 1977)

In the Supreme Court of Georgia

Decided: June 7, 1977

31781. HOWARD BRAMBLETT v. STATE

HILL, Justice.

The Court of Appeals affirmed the con-

viction of the defendant after his retrial

for theft by taking. Bramblett v. State, 139

Ga. App. 745 (229 SE2d 484) (1976). Certiorari

was granted to consider the timeliness of

demurrers filed before retrial and the con-

sequences of Connally v. Georgia, No. 76-461,

January 10, 1977 (97 SC , 50 LE2d 444)

(45 LW 3461), which was decided after the

decision of the Court of Appeals.

l. After defendant's first conviction

was reversed, Bramblett v. State, 135 Ga.

App. 770 (219 SE2d 26) (1975), and before the

commencement of the second trial, he filed a

A-2

general demurrer on the ground that the in-

dictment failed to set forth acts which con-

stituted a crime and a special demurrer on the

ground that the indictment was vague, indefinite

and uncertain in describing the property al-

legedly taken. The trial court overruled the

demurrer. The Court of Appeals upheld the

ruling of the trial court reasoning that the

demurrers were not timely when filed after the

defendant had pleaded to the merits of the

indictment at his arraignment before the first

trial. Bramblett v. State, 139 Ga. App. 745,

supra.

A general demurrer challenges the suf-

ficiency of the substance of the indictment,

whereas a special demurrer challenges the

sufficiency of the form of the indictment.

Gilmore v. State, 118 Ga. 299 (1) (45 SE 226)

(1903); Lampkin v. State, 87 Ga. 516 (1)

(13 SE 523) (1891); Coffee v. State, 219 Ga.

328 (1) (133 SE 2d 590) (1963); see also

A-3

Hohenstein v. State, 126 Ga. 536 (55 SE 238)

1

(1906). The Civil Practice Act, enacted in

1966, abolished demurrers in civil cases, Code

Ann. § 81A-107 (c). The criminal procedure

laws of this state, which retain demurrers to

this day, Code Ann. § 27-1501, have not been

updated in over 100 years.

According to Code sections 27-1501 and

27-1601, all demurrers to the form of the

indictment (i.e., special demurrers) must be

made at or before arraignment. Special de-

murrers not made at or before arraignment are

waived. Frady v. State, 212 Ga. 84 (1) (90

SE2d@ 664) (1955); Burns v. State, 191 Ga. 60,

63 (11 SE2d 350) (1940). Thus it has been held

that special demurrers made after the grant

of a new trial are untimely. Burns v. State,

supra.

A challenge to the sufficiency of the

substance of the indictment can be made after

/l/ Thus, demurrers in criminal cases are not

unlike demurrers in civil cases. Leverett, et al.,

Ga. Proc. & Prac., § 9-2 (1957).

A-4

trial by means of a motion in arrest of judg-

ment. White v. State, 93 Ga. 47 (1) (19 SE

49) (1893); Gibson v. State, 79 Ga. 344 (2)

(5 SE 76) (1887); Boswell v. State, 114 Ga.

7

40 (39 SE 897) (1901); Hill v. Nelms, 122

Ga. 572 (1) (50 SE 344) (1905); Gilmore v.

State, supra.

Because a motion in arrest of judgment

can be made after trial to challenge the

substance of an indictment, it follows that

a general demurrer can be made before retrial

to challenge -the substance of the indictment.

See Mitchell v. State, 225 Ga. 656 (1) (171

2

SE2d 140) (1969). The defendant's general

demurrer filed in this case was not untimely.

/2/ The inferences in Rucker v. State, 114 Ga.

13, 14 (39 SE 902) (1901), and Reddick v. State,

149 Ga. 822 (102 SE 347) (1919), that after

pleading to the merits, a defendant cannot

question the substance of the indictment until

after conviction, have not been followed. As

was said in Gilmore v. State, 118 Ga. 299,

299-300 (45 SE 226) (1903): "If, however, the

indictment of accusation is so defective that

judgment upon it would be arrested, attention

may be called to this defect at any time during

the trial..." The case of Bryant v. State, 224

Ga. 235 (161 SE2d 312) (1968), did not involve

demurrers are directed to defects which appear

on the face of the indictment.

A-5

However, the indictment closely follows

the statutory definition of the offense, Code

Ann. § 26-1802 (a). It clearly charges the

defendant and specifies the date and county

of the offense, the property taken, its value

and its owner. No other substantive defi-

ciencies have been urged by defendant. The

trial court did not err in refusing to dismiss

the indictment on general demurrer. Ramsey Vv.

State, 212 Ga. 381 (1) (92 SE2d 866) (1956);

Robbins v. State, 119 Ga. 570 (1) (46 SE 834)

(1904).

2. The defendant urges that the Court

of Appeals improperly found that a warrant was

not required for the seizure of a van in a

driveway and urges that a warrant which was

subsequently obtained to search the seized

van was invalid under Connally v. Georgia,

supra. The circumstances of the seizure are

set forth in Bramblett v. State, 139 Ga. App.

745, supra, and are briefly summarized here.

A-6

As part of an ongoing investigation of

several suspected carpet thefts in the area,

government authorities received reports from

a company of instances of missing yarn. In

response to a tip from a reliable informant,

government authorities approached the company's

premises at about 11:30 p.m. The agents began

following a van whose description and out-of-

state license corresponded with information

given by the informant. The van, which had

transparent windows, was empty when it stopped

at the guard house before entering the manu-

facturer's premises, and it was full when it

departed 90 minutes later. The guard made no

effort to stop the van on its departure. The

agents, aware that no property was authorized

to depart the company that night, followed the

van until it stopped in a driveway of a private

residence. The agents quickly arrested the

defendant, who was driving, and his passenger.

This passenger, the defendant's brother, lived

A-7

in the house where the van had stopped. At

this point the agents identified the contents

of the van as cartons for yarn. The agents

seized the van and had it removed to the station

house. A search warrant was obtained from a

justice of the peace, and eleven cases of

yarn were taken from the van.

Both the trial court and the Court of

Appeals properly found probable cause for the

arrest of the defendant and for the search of

the van. There were sufficient facts from which

the agents could reasonably believe that a

crime had occurred in which the defendant had

participated and that fruits of the crime were

inside the van. Draper v. United States, 358

U. S. 307 (79 SC 329, 3 LE2d 327) (1959). The

warrantless entry by the agents onto the pre-

mises for the purpose of arresting defendant

is not barred by the Fourth Amendment. Ker v.

California, 374 U. S. 23 (83 SC 1623, 10 LE2d

726) (1963); see also Watson v. United Stated,

423 U. S. 411 (96 SC 820, 46 LE2d 598) (1976);

Gerstein v. Pugh, 420 U. S. 103 (95 SC 854,

A-8

43 LE2d 54) (1975).

At the outset we must decide whether the

warrantless seizure of the van fits an excep-

tion to the warrant requirement of the Fourth

Amendment, be it a search incident to lawful

arrest, the plain view doctrine, or the auto-

mobile or Carrol doctrine. Without eliminating

the possible applicability of the former two,

we will examine the latter doctrine as it is

the one argued by the parties.

Defendant contends that a search warrant

was required in accordance with Coolidge v.

New Hampshire, 403 U. S. 443 (91 SC 2022,

29 LE2d 564) (1971), before the agents could

constitutionally seize the van in the drive-

way. The Supreme Court found that in the

circumstances of the seizure in the Coolidge

case, no exigency excused the usual require-

ment that the authorities obtain a warrant.

Coolidge found that the requisites of the

Carroll doctrine, Carroll v. United States,

267 U. S. 132 (42 SC 280, 69 LE2d 543) (1926),

which permits warrantless searches of vehicles

A-9

in some situations, did not obtain in the

particular circumstances of the Coolidge case.

Coolidge, supra at 458-464.

We find the circumstances of the case

presently under consideration to be very

different from the circumstances which led to

the improper seizure and search in Coolidge.

Before the authorities in Coolidge arrived

on the premises they had obtained a search

warrant which was subsequently determined to

be invalid. There is no indication that the

agents in the present case had an opportunity

to obtain a warrant prior to the time they

followed the van into the driveway and arrested

the defendant. In Coolidge there was no

suggestion that on the night in question the

car was being used for any illegal purpose or

that it contained stolen goods. In the case

at hand there was probable cause to believe

that the van contained stolen merchandise.

The defendant in Coolidge resided at the

premises from which his car was taken, and the

police were aware that there would be no one

A-10

else on the premises who could remove the car.

In the present case the defendant was driving

a van with out-of-state tags and the informant

had said he had a business in that neighboring

state. In Coolidge the authorities did not

arrest the driver as he alighted from the car.

It is clear that if the van had been

stopped by the officers before it pulled into

the driveway, it could have been seized under

Carroll. The fact that it had stopped in the

driveway does not necessarily bring it under

Coolidge. The agents who seized the van in

this case were aware that several carpet thefts

had occurred recently in the area, were aware

that the two arrested men could not process

yarn into carpet without assistance of others,

and were aware that a third man, the guard,

knew that the loaded van had left the manu-

facturer's premises. They did not know whether

the house where the van was located was occupied.

Thus they could reasonably have concluded that

the van and its contents could be removed if

A-11

A-12

left unattended. The requirements of the

Still obtained at the station house. Texas v.

Carroll doctrine as set forth in Chambers v. °

White, 423 U. S. 67 (96 SC 304, 46 LE2d 209)

Maroney, 399 U. S. 42, 50-52 (90 SC 1975, 26

, (1975); Chambers v. Maroney, supra at 52.

LE2d 419) (1970), were fulfilled in the case

Therefore, evidence was not unconstitutionally

now before us and the seizure of the van did

obtained from the van and the Court of Appeals

not infringe any constitutional rights of the

did not err in so finding.

defendant. Carlton v. Estelle, 480 F2d 759

(Sth Cir. 1973); United States v. Evans, 481 Judgement affirmed. All the Justices concur.

F2d 990 (9th Cir. 1973); United States v.

Connolly, 479 F2d 930 (9th Cir. 1973).

The defendant contends that the search

of the van at the station house violated the

Fourth Amendment because it was conducted ’

pursuant to a warrant issued by a partial

magistrate. Connally v. Georgia, supra. The

state contends that Connally should be applied

prospectively only. Regardless of the applica-

tion of Connally, in this case no warrant was

required for the search of the van at the

station house. Both the probable cause and

the mobility elements of the Carroll doctrine

which existed at the time the van was seized

APPENDIX "B"

SUPREME COURT OF GEORGIA

Atlanta, July 1, 1977

The Honorable Supreme Court met pursuant

to adjournment.

The following order was passed:

Howard Bramblett v. The State

Upon consideration of the motion for

rehearing filed in this case, it is ordered

that it be hereby denied.

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK'S OFFICE, ATLANTA

OCTOBER 11, 1977

I certify that the above is a true

extract from the minutes of the Supreme

Court of Georgia.

Witness my signature and the seal

of said court hereto affixed the day and

year last above written.

Hazel E. Hallford, Deputy Clerk.

APPENDIX "C"

IN THE SUPREME COURT OF GEORGIA

HOWARD BRAMBLETT, CASE # 31,781

APPLICANT FOR SUPREME COURT OF GEORGIA

CERTIORARI

-versus-

STATE OF GEORGIA,

RESPONDENT IN

CERTIORARI

NOTICE OF INTENTION

TO APPLY FOR WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT

TO: THE CLERK OF THE SUPREME COURT OF GEORGIA:

You are hereby notified that it is the

intention of HOWARD BRAMBLETT, Applicant, to apply

to the Supreme Court of the United States for Writ

of Certiorari to review the Judgement of the

Supreme Court of Georgia rendered and filed in

the above and foregoing stated case on June 7, 1977,

in which case a Motion for Rehearing was denied

on July 1, 1977. A complete copy of the record

is hereby ordered.

THIS 27th day of July, 1977.

s/WM. RALPH HILL, JR.

ATTORNEY FOR APPLICANT

APPENDIX "C"

CERTIFICATE OF SERVICE

This is to certify that I have this date

served a copy of the within and foregoing

Notice upon the following by placing a copy of

same in an envelope properly addressed to each

of them and depositing it in the United States

Mails with sufficient postage thereon to reach

its destination:

The Hon. Charles A. Pannell, Jr.

District Attorney, Conasauga Judicial Circuit

Whitfield County Courthouse

Dalton, Georgia 30720

&

The Hon. Arthur K. Bolten

Attorney General

Judicial Building, Room 132

Atlanta, Georgia 30303

THIS 27th day of July, 1977.

RALPH HILL, JR.

ATTORNEY FOR APPLICANT

CERTIFICATE OF SERVICE

This is to certify that I have this date

served three copies of the Petition for Writ

of Certiorari upon the following by placing

the copies of same in an envelope properly

addressed to them and depositing same in the

United States Mail with sufficient postage

thereon to reach their destination, to wit:

The Honorable Charles Pannell

District Attorney

Conasauga Judicial Circuit

Whitfield County Courthouse

Dalton, Georgia

AND

The Honorable Arthur K. Bolton

Attorney General of the State of Georgia

Judicial Building

Room 132

Atlanta, Georgia

This day of October, 1977