# Petition — Bramblett v. Georgia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1013

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2744%3A1. Public record. Not legal advice.