Petition — Smith v. Georgia

Court, U. &

FILED

sss JUN 27 1980

Supreme Cort Phe coow. x. ccm

of the

United States

OCTOBER TERM, 1979

No.

79-2058

DANNY SMITH,

Petitioner,

UAy

THE STATE OF GEORGIA,

Respondent.

PETITION FOR THE WRIT OF CERTIORARI

TO THE HONORABLE COURT OF APPEALS

OF THE STATE OF GEORGIA

PYE, GROOVER & DAILEY

DURWOOD T. PYE

LEWIS M. GROOVER, JR.

Attorneys for Petitioner

2801 Buford Highway NE

Suite 375

Atlanta, Georgia 30329

404/325-9411

oem

PETITION FOR THE WRIT OF CERTIORARI

TO THE HONORABLE COURT OF APPEALS

OF THE STATE OF GEORGIA

SUBJECT INDEX

Table of Citations

Petition for Certiorari

Opinions Below

Jurisdiction

Questions Presented for Review and the

Constitutional Provisions which the Case Involves

One

Two

Concise Statement of Case with Material Facts

Concise Arugument Amplifying Reasons for

Allowance of the Writ

Affidavit of Service

Index to Appendix

II

Page

TABLE OF CITATIONS

United States Code Sections

28 U.S.C. SEC. 1257 (3)

Georgia Statutes and Code Sections

Georgia Code Section 38-121

TABLE OF CASES

Cuevas v. State, 151 Ga. Apps. p. 607

Nathason v. United States, 290 U.S. 41

Price v. State, 208 Ga. 695,696 (3a)

Spinelli v. United States, 393 U.S. 410,423

Thompson v. Louisville, 362 U.S..199

4 L. Ed (2) 654, 80 A.L. R. (2) 1355

Yick Wo v. Hopkins, 118 U.S. 356

II

Page

RECORD AND TRANSCRIPT

References to the Record (R.) and Transcript (T.) are to

those documents in the office of the Clerk of the Honorable

Court of Appeals of Georgia

IV

in the

Supreme Court

of the

United States

OCTOBER TERM, 1979

No.

DANNY SMITH,

Petitioner,

VS.

THE STATE OF GEORGIA,

Respondent.

PETITION FOR THE WRIT OF CERTIORARI

TO THE HONORABLE COURT OF APPEALS

OF THE STATE OF GEORGIA

PYE, GROOVER & DAILEY

DURWOOD T. PYE

LEWIS M. GROOVER, JR.

Attorneys for Petitioner

2801 Buford Highway NE

Suite 375

Atlanta, Georgia 30329

404/325-9411

TO: ©THE HONORABLE CHIEF JUSTICE OF THE

UNITED STATES,

AND

THE HONORABLE ASSOCIATE JUSTICES OF THE

SUPREME COURT OF THE UNITED STATES,

AND

TO THE HONORABLE SUPREME COURT OF THE

UNITED STATES:

The petitioner, DANNY SMITH, respectfully prays

that the Writ of Certiorari issue to the Honorable Court of

Appeals of the State of Georgia to review the judgment and

opinion of said court adverse to Petitioner entered in criminal

proceedings against him on March 20, 1980, as stated in its

Opinion and Judgment set forth in the Appendix hereto:

OPINIONS BELOW

The opinion of the Honorable Court of Appeals

of the State of Georgia is not yet reported, and is set forth in

the appendix hereto, as is the dissenting opinion.

The record of Petitioner’s trial before the Court

and Jury in the Honorable Superior Court of Liberty County,

Georgia, (Hinesville, Georgia), wherein he was convicted of

possession of marijuana with intent to distribute (R.4, 184), his

Motion for New Trail being denied June 15, 1979 (R. 185-187;

194-197,) is in said Superior Court, and also in the record in

said Court of Appeals.

JURISDICTION

The judgment of the Court of Appeals of the State of

Georgia affirming the judgment of said Superior Court denying

Petitioner’s Motion for New Trial was dated and entered March

20, 1980, (the date also of its Opinion), Appendix p. 1. Motion

for Rehearing was denied March 31, 1980, Appendix p. 8.

The Honorable Supreme Court of Georgia denied a Petition for

the Writ of Certiorari April 29, 1980; (Appendix, p. 9; and

this Petition for Certiorari is filed within 60 days from that

date and within 90 days from the date of the denial of said

Motion for Rehearing by the Court of Appeals of the State

of Georgia. The Jurisdiction of the Supreme Court is invoked

pursuant to 28 U.S.C. SEC. 1257 (3).

QUESTIONS PRESENTED FOR REVIEW AND THE

CONSTITUTIONAL PROVISIONS WHICH THE CASE

INVOLVES

ONE

Marijuana, alleged in the indictment to have been in

Petitioner’s possession, and also a pocket-book or billfold,

and a coffee cup and legal pad on which were Petitioner’s

fingerprints, the latter contended to be evidence corroborating

the testimony of Don Michael Drake, his accomplice, were

seized by officers of the State, on the shrimp-boat “‘Miss Carol

J”, as the result of search pursuant to a warrant issued without

probable cause:

In denial of Petitioner’s Motion to Suppress, and the

reception of such contraband, and said pocket-book, coffee

cup and pad, in evidence against Petitioner on his jury trial,

violative of the Constitution of the United States, 4th Amend-

ment, providing:

The right of the people to be secure in their persons, houses,

papers and effects, against unreasonable searches and seizures,

shall not be violated, and no warrants shall issue, but upon

probable cause, supported by oath or affirmation, and par-

ticularly describing the place to be searched, and the persons

or things to be seized.

TWO

Under the law of Georgia, one may not be convicted upon

the testimony of an accomplice without other evidence, which

itself directly connects such one with the crime charged, Ga.

Code Sec. 38-121; Price v. State 208 Ga. 695, 696 (3a).

In this case, however, Petitioner was convicted without

such corrborating evidence (as is shown in the dissenting op-

inion).

Is such conviction without proof a denial of Federal due

process of law?

Thompson y. Louisville, 362 U.S. 199, 4 L. ed(2) 654;

80 A.L.R. (2) 1355.

Is such denial of equal justice a violation of Federal due

process? Yick Wo v. Hopkins, 118 U.S. 356.

In each of said respects is there a violation of Sec. | of the

14th Federal Amendment, providing;

Nor “‘shall any State deprive any person of life (or) lib-

erty. . .without due process of law’?

CONCISE STATEMENT OF CASE WITH MATERIAL FACTS

A warrant was issued by Justice of the Peace Keel, March

14, 1978 at 7:50 p.m., authorizing search of the shrimpboat

“Miss Carol J”. The warrant recited that it was pursuant to the

affidavit of John Dasher and also that it was, “based upon the

affidavit given under oath or affirmation and all other testi-

mony given to me under oath”. (States’ Exhibit 1, Appendix

p. 20). The Affidavit of John Dasher, deputy Sheriff, recited:

*. . this act was witnessed by a Don Michael Drake. See

attached statement that is made a part of this affidavit’’. (States’

Exhibit 1, Appendix pp. 29 - 30.

Drake’s unsworn statement is set forth by the Court of

Appeals in the case of Cuevas v. State, 151 Ga. Apps at P. 607

(Appendix p. 10.) which is referred to the opinion of said Court

at Bar. Drake was an accomplice, (opinion of Court of Appeals

at Bar). Dasher’s affidavit also referred to an unsworn statement

made to him by Deputy Sheriff Groover. Dasher was without

personal knowledge. The State relied for probable cause and the

legality of the search under the warrant of “Miss Carol J”

solely upon the references in the affidavit of Dasher to such

statements of Drake and Sheriff Groover. (See relevant portions

of the testimony of John Dasher upon the hearing of the

Motion to Suppress set forth in Appendix, pp. 36 - 66.

In the search a large quantity of marijuana was found on

“Miss Carol J”, as was also a bill-fold containing Petitioner’s

name and photograph and a coffee cup and legal pad whereon

were Petitioner’s finger-prints. (T. 211-213, 216-218). Don

Michael Drake, sworn by the State against Petitioner as an

accomplice, testified that he and Petitioner both helped in

“placing the marijuana on ‘Miss Carol J’.”” (Opinion of Court

of Appeals at Bar, p. 2). As stated by the Court of Appeals,

under Georgia law Drake’s testimony “must be corroborated by

other evidence” (opinion p. 2). There was no corroborating

evidence (unless the bill fold, coffee cup and legal pad be so

regarded). The reference on p. 2 of the opinion of the Court of

Appeals to “admissions” of Petitioner refers only to his testi-

mony that as a commercial fisherman he had rented ‘‘Miss

Carol J” twice, the last time in February 1978, before the

marijuana was discovered aboard her March 13, 1978. As shown

in the dissenting opinion, the aforesaid evidence was insuf-

ficient to corroborate Drake.

Federal questions were raised as follows: (1) in respect

of the search warrant, by Motion to Suppress, copy of which

is at Appendix, pp. 31 - 32.

(2) As to conviction without evidence, by Motion for

Directed Verdict in the Trial Court for insufficiency of evidence

which necessarily as Petitioner contends, included the question

of Federal due process; and also before the Court of Appeals

See Division One of Opinion at Bar.

CONCISE ARGUMENT AMPLIFYING REASONS FOR

ALLOWANCE OF THE WRIT

(1) To review the question whether the Fourth Amendment

was violated by issuance of the warrant for the search of “Miss

Carol J”, without probable cause, when the sole affiant Dasher

had no knowledge of the matters related, his information being

based upon the unsworn statement of accomplice Drake, made

to Agent Stone, and statements made to Deputy Groover.

Spinelli v. United States, and Justice White’s concurring

opinion, 393 U.S. 410, 423; Nathason v. United States 290

U.S. 41.

(2) To review the question whether a conviction without

evidence, (except the uncorroborated evidence of an accom-

plice), is violative of Federal Due Process.

Thompson v. Louisville, 362 U.S. 199, 4 L.ed(2) 654, 80

A.L.R. (2) 1355;

And whether such conviction, contrary to State Law, is a

denial of equal rights and thus of Federal Due Process. Yick Wo.

v. Hopkins, 118. U.S. 356.

The Court of Appeals of the State of Georgia, in deciding

that the search of ‘“‘Miss Carol J” under the aforesaid warrant

was in conformity with the 4th Amendment, and that the trial

court properly denied petitioner’s motion to suppress the evi-

dence which was the fruit of such search, (1) decided a federal

question of substance not heretofore determined by the Su-

preme Court, to-wit: whether the unsworn statements of an

accomplice may establish probable cause; and (2) decided the

question of probable cause in a way probably not in accord

with the decision of the Supreme Court in Spinelli v. United

States, 393 U.S. 410. The Court of Appeals of the State of

Georgia also, in deciding that there was evidence to convict

petitioner, determined this question in a way probably not in

accord with the decision of the Supreme Court in Thompson v.

Louisville, 362 U.S., 179.

WHEREFORE, Petitioner prays that the Writ of Certiorari

issue to the Honorable Court of Appeals of the State of Geor-

gia, and that such proceedings be had as are inconformity with

the laws of the United States and the Constitution thereof.

Respectfully submitted,

PYE, GROOVER & DAILEY

LEWIS M. GROOVER, JR.

DURWOOD T. PYE

Attorneys for Petitioner

2801 Buford Highway NE

Suite 375

Atlanta, Georgia 30329

404/325-9411

STATE OF GEORGIA

COUNTY OF DEKALB

AFFIDAVIT OF SERVICE

Personally appeared LEWIS M. GROOVER, JR., who,

on oath depuses and says that he, as counsel for petitioner in

said case, has served all parties required to be served.

Further, that he on the____day of June, 1980, deposited

in a United States mail box three copies of the foregoing

Petition for Certiorari, with first class postage prepaid, addres-

sed to each of counsel of record for the State of Georgia, at

the post office address of counsel, to-wit:

Honorable Arthur K. Bolton,

Attorney General,

Judicial Building,

Room 132,

Atlanta, Georgia 30334

and to

Honorable Dupont K. Cheney,

District Attorney,

P.O. Box 653,

Hinesville, Georgia 31313.

LEWIS M. GROOVER, JR.

Sworn to and subscribed before

me this__ day of

, 1980.

Notary Public

My Commision expires:

INDEX TO APPENDIX

Page

1. Certified copy of Opinion of the Court of Appeals of

the State of Georgia at Bar.

2. Certified copy of Order Denying Motion for Rehearing. 8

3. Certified copy of Order of the Supreme Court of Georgia

Denying Application for the Writ of Certiorari. 9

4. Copy of the Opinion of the Court of Appeals of Georgia

in Cuevas v. State, 151 Ga. Apps. 605, referred to in opinion

at Bar. 10

5. State's Exhibit 1, the Search Warrant and supporting

affidavit of John Dasher. 20

6. Motion to Suppress and Order thereon. 31

7. Relevant proceedings upon the Motion to Suppress and

relevant portions of the testimony of John Dasher. 36

NOVEMBER So-232

AFFIRMED (transferred to McM)

59023. SMITH v. THE STATE

McMURRAY, Presiding Judge.

Defendant Smith was indicted, tried, and convicted of

possession of marijuana with intent to distribute, a felony,

in violation of the Georgia Controlled Substances Act. He was

sentenced to serve a term of 10 years. A motion for new trial

was filed, amended, and denied. Defendant appeals. Held:

1. The issue in the first enumeration of error is that the

trial court erred in denying defendant’s motion for directed

verdict of acquittal inasmuch as a felony had been charged

and there was insufficient evidence to convict as a matter of

law. Defendant contends that the evidence was based upon the

testimony of an accomplice, uncorroborated by facts and cir-

cumstances which in themselves directly connected the defen-

dant with the crime.

The case of Cuevas v. State, 151 Ga. App. 605 (260 SE2d

737), as to the possession of marijuana with intent to distri-

bute involves five other persons charged with this same crime.

See also in this connection Arnsdorff v. State, Ga. App.

( SE2d ) [No. 58294, decided October 17, 1979].

Marijuana was seized on the shrimp boat ‘Miss Carol J,” and

the accomplice who was involved in the unloading of marijuana

into trucks testified that this defendant left ‘‘Morgan’s Dock”

on the “Miss Carol J” and returned a few days later on March

13, 1978, at which time it contained a large amount of mari-

juana. The accomplice testified that he and the defendant

both helped unload the marijuana. However his testimony

must be corroborated by other evidence.

App. |

Other witnesses testified that the boat was searched by law

enforcement officers. A billfold was found on board contain-

ing the name Daniel Phillip Smith, as well as defendant’s pic-

ture. A coffee cup and a legal pad were also found in the wheel-

house of the boat. Defendant’s fingerprints were found on these

two items (coffee cup and legal pad). In the defendant’s testi-

mony he admitted he was a commercial fisherman and had

rented the “Miss Carol J” twice, the last time about the middle

of February, 1978. He also testified he had apparently left his

billfold on the boat in February, 1978, and discovered that he

had lost it after his return to his home in Florida. This evidence,

of course, could explain the location of his fingerprints and bill-

fold on board without involving criminal activity on his part.

However, the jury did not believe this. Yet this evidence was

sufficient to corroborate the testimony of the accomplice.

Corroborating evidence must be as to the identity and partici-

pation c the accused tending to connect him to the crime or

lead to the inference that he is guilty. See Smith v. State, 238

Ga. 640, 641 (235 SE2d 17) and cases cited. The defendant

admitted he had been in the presence of the shrimp boat,

“Miss Carol J,” but he contends it was in February, 1978,

not on or about March 13, 1978, when the marijuana was

discovered aboard the ‘‘Miss Carol J.” His fingerprints on the

legal pad and coffee cup, as well as his wallet and picture and

admissions in evidence are sufficient corroborating testimony of

the accomplice’s testimony to authorize the jury’s verdict of

guilty. There is no merit in this complaint.

2. Defendant also contends he was denied a right to a

thorough and sifting cross examination of the accomplice. The

scope of the cross examination rests largely with the trial judge,

and his discretion will not be controlled by a reviewing court

unless it is abused. The trial court may properly restrict the

cross examination to matters material or relevant to the issues.

Jones v. State, 135 Ga. App. 893, 897-898 (5) (219 SE2d 585);

Allen vy. State, 137 Ga. App. 302, 303(3) (223 SE2d 495);

Birge v. State, 143 Ga. App. 632, 634-635 (4) (239 SE2d 395).

Here, however, a thorough and sifting examination of the

witness was allowed except in one instance in which an objec-

App. 2

tion was raised and sustained as to whether or not the person

who had employed the witness to work for the city kenw cer-

tain law enforcement officers. Whether or not this third person

knew law enforcement officers is irrelevant to the case. There is

no merit in this complaint.

3. Another enumeration of error alleges error when the

court refused to permit impeachment of the state’s sole eye

witness, the accomplice, by use of the witness’ juvenile record

adjudging him a delinquent for commission of a crime involv-

ing moral turpitude. The record here as to this witness, the ac-

complice, shows only that he had been adjudicated a delinquent

in a juvenile court proceeding. In a proceeding under the por-

visions of Code Title 24A adjudication of delinquency is not a

conviction of a crime. Code Ann. § 24A-2401(a) (Ga. L. 1971,

pp. 709, 736); K.M.S. v. State of Georgia, 129 Ga. App. 683,

684 (200 SE2d 916). To impeach a witness it is necessary to

introduce an authenticated copy of the record of the court in

which he was convicted. An adjudication of delinquency in a

proceeding under the provisions of Code Title 24A is not a

criminal conviction. There is no merit in this complaint.

4. The next enumeration of error is as to the failure to show

a proper chain of custody as to the contraband admitted into

evidence over objection. The circumstances need only establish

the reasonable assurance of the identity of the same. See

Patterson v. State, 224 Ga. 197, 199 (2) (160 SE2d 815);

Meadows v. State, 135 Ga. App. 758, 759, 760 (219 SE2d 174);

Davis v. State, 135 Ga. App. 203, 204 (1) (217 SE2d 343);

Johnson vy. State, 143 Ga. App. 169 (1) (237 SE2d 681).

Absent any evidence to the contrary, the evidence presented by

the State was sufficient to establish the chain of custody.

Davis v. State, 135 Ga. App. 203, supra; Johnson y. State,

143 Ga. App. 169, supra.

5. In denying the defendant’s motion to suppress evidence

allegedly obtained as a result of illegal searches and seizures,

we here refer to Cuevas v. State, 151 Ga. App. 605, 607 (1),

supra, in which this court extensively reviewed a similar motion

to suppress the evidence seized and the ruling there is control-

App. 3

ling here. There is no merit in this complaint. See also Arnsdorff

v. State, Ga. App. (4), supra; United States v. Harris,

403 U.S. 573, 581 (91 SC 2075, 29 LE2d 723); Davis v. State,

129 Ga. App. 158, 159-160 (3) (198 SE2d 913); Smith v. State,

136 Ga. App. 17 (220 SE2d 11).

Hearsay information which relates to the criminal activity

in such detail as to assure the magistrate that the information

provided is more than a casual rumor circulating in the under-

world may also establish the needed credibility and reliability.

Sams v. State, 121 Ga. App. 46, 48 (1) (172 SE2d 473); Smith

v. State, 136 Ga. App. 17, supra. There is no merit in this

complaint.

6. The trial court did not err in its instruction to the jury

on constructive possession. The defendant here was not caught

in actual possession of the marijuana, but the testimony was

such that the jury would have been authorized to find that

although not in actual possession he knowingly had both the

power and the intention to exercise dominion or control over it

See Neal v. State, 130 Ga. App. 708, 710-711 (2) (204 SE2d

451) and Bradley v. State, 137 Ga. App. 670 (1) (224 SE2d

778).

7. The evidence was sufficient to support the verdict.

After careful review of the trial transcript and record, we find

and so hold that a rational trier of fact (the jury in the case sub

judice) could readily have found the defendant guilty beyond a

reasonable doubt of the offense of possession of marijuana with

intent to distribute in violation of the Georgia Controlled Sub-

stances Act. See Payne v. State, 151 Ga. App. 165, 166 (259

SE2d 168); Whatley v. State, 151 Ga. App. 174, 175 (259 SE2d

175).

Judgment affirmed. Deen, C. J., Quillian, P. J., Shulman,

Banke, Birdsong, Carley, JJ., concur. Smith and Sognier, JJ.,

dissent.

App. 4

29023. SMITH v. THE STATE

SOGNIER, Judge, Dissenting

I respectfully dissent from Division | of the majority opinion.

The rule relating to corroboration of accomplice testimony is

that there must be evidence, independent of the accomplice

testimony, which establishes, or infers, direct participation in

the offense charged, and is more than sufficient to merely cast

on the defendant a grave suspicion of guilt. Allen v. State, 215

Ga. 455, 457 (111 SE2d 70) (1959). Accord: Gunter v. State,

243 Ga. 651, 654-655 (256 SE2d 341) (1979); Vaughn v. State,

139 Ga. App. 565 (228 SE2d 541) (1976). Eliminating the

testimony of the accomplice in this case, all that remains is the

fingerprint evidence and evidence that a billfold containing

Smith’s name and picture was found on the “‘Miss Carol J”. The

most this evidence establishes, even by inference, is that at some

unknown time (accepting the testimony of the State’s expert

witness) Smith was on the “Miss Carol J”. It does not establish,

even by inference and independent of the accomplice testi-

mony, that Smith participated in the offense charged on March

13, 1979.

I recognize that the corroborating evidence need not be suf-

ficient, in and of itself, to establish an accused’s guilt; however,

it must be sufficient, at a minimum, to establish the defendant’s

participation in the offense charged without consideration of

the accomplice’s testimony. If the evidence independent of the

accomplice testimony is not sufficient to establish that Smith

was on the boat on March 13, 1979, it is certainly not sufficient

corroboration; at most, it creates a grave suspicion of guilt.

This is in accord with Division 4 of this Court’s opinion in

Barnett v. State (Case No. 59238, decided February 12, 1980).

Lastly, the case of Cuevas v. State, 151 Ga. App. 605 (258

SE2d 285) (1979) relied on by the majority, is totally different

factually from the instant case. Cuevas was apprehended in the

back of the van used to transport the marijuana, thus connect-

ing him directly with the offense charged. In the instant case

App. 5

Smith was not at the boat, the warehouse or the van; in fact, he

was not present at all. Thus, the only evidence connecting the

defendant with the offense charged was the uncorroborated

testimony of the accomplice.

I agree with this Court’s disposition of the remaining

enumerations of error; however, in my opinion, Enumeration |

requires reversal.

App. 6

COURT OF APPEALS OF THE STATE OF GEORGIA

Clerk’s Office,

Atlanta, June 12, 1980

I hereby certify that the foregoing pages attached hereto

contain a true and complete copy of the opinion of the Court

of Appeals of Georgia in the case therein stated, as appears

from the original of file in this office.

Witness my signature and the seal of

said Court hereto affixed the day and

year above written.

h

SEAL

Clerk.

App. 7

Court of Appeals

of the State of Georgia

ATLANTA, March 31, 1980

The Honorable Court of Appeais met pursuant to adjourn-

ment. The following order was passed:

59023 Danny Smith 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 March 31, 1980

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 af-

fixed the day and year last above written.

(/ — cLERK.

App. 8

SUPREME COURT OF GEORGIA

ATLANTA, April 29, 1980

The Honorable Supreme Court met pursuant to adjourn-

ment. The following judgment was rendered:

Danny Smith v. The State

Upon consideration of the application for certiorai filed

to review the judgment of the Court of Appeals in this case, it

is ordered that the writ be hereby denied. All the Justices con-

cur.

SUPREME COURT OF THE STATE OF GEORGIA

CLERK’S OFFICE, ATLANTA May 15, 1980

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 af-

fixed the day and year last above written.

SEAL payee & eharyperd, Mipeety

CLERK.

Case No.

Court of Appeals of Georgia

Remittitur from Supreme Court

Filed in office

Clerk Court of Appeals of Georgia.

App. 9

58105 CUEVAS et al. v. THE STATE

QUILLIAN, Presiding Judge.

The defendant and his four companions appeal their convic-

tion of one count of possession of marijuana with intent to

distribute. Deputy Sheriff Dasher, of Liberty County, was pat-

rolling on the evening of March 13, 1978, at approximately

10:30 p.m. when he observed someone walking in the area of a

warehouse in which all of the lights were off. He “‘didn’t know

whether they were breaking in or what, so [they] stopped to

check it out.” It was the owner, Sue Youngblood, who ad-

vised them ‘“‘everything was alright.”” They were aware of her

previous “‘record.’’ The deputy stated: “We realized something

wasn't right . . .” They set up surveillance across the road.

A red and silver Thunderbird automobile entered the ware-

house area and Sue Youngblood talked to them. She said some-

thing about “money” to the driver. The car left and a red and

white truck came in and left. Later, a large “white van type

truck” backed up to the warehouse door and began unloading

its cargo. The deputy sheriff was familiar with marijuana bales

from earlier investigations and these ‘‘appeared to be bales of

marijuana being off-loaded and put into the Coastal Sign

warehouse.”

When the white van left he radioed Deputy Sheriff Groover

and advised him “to stop the truck .. . see if they would

give us permission to search the truck, if not we would get a

search warrant.’’ Deputy Groover saw the truck approach and

he fell in behind for a short distance and then pulled them over.

Deputy Dasher had already radioed him that “‘they were un-

loading marijuana” at the Coastal Sign warehouse. Defendant

Cave was driving and one of the other defendants was a pas-

senger. He asked Cave for his driver’s license. It was a Florida

license and Cave “talked like he was a foreigner.” It was noted

that the truck had dual wheels.

Deputy Groover asked defendant Cave if he would mind

opening up the doors to the back of the truck. Defendant Cave

App. 10

hesitated and Groover stated: “. . . I told him if he didn’t want

to open the truck that | would get a search warrant to open

it.” Cave produced the keys and unlocked the rear door. The

remaining three defendants were inside. All five defendants

were placed in the rear of the patrol car and deputy Groover

saw “marijuana seeds” and “strings from burlap bags” in the

back of the truck. He entered the truck and found three loaded

pistols.

With the combined knowledge that the white van truck

with dual wheels, had been intercepted headed east on I-95,

toward the coast, and that the driver spoke with a foreign ac-

cent and had a Florida driver’s license, all deputy sheriffs

began looking for dual wheel tracks leading from the highway

to the coastal area. Deputy Stagmeier, after checking several

coastal locations, found dual wheel tracks leading toward

“Sunbury” and called the GBI agent in charge of the investi-

gation. When the GBI agent arrived they followed the dual

wheel tracks to ‘“Morgan’s Dock”’ where they observed approxi-

mately eight boats. It was then between 5 and 5:30 a.m. in the

morning. The police located a Don Drake on the boat “High

Noon.” They Talked to him about what he had seen and then

took a statement from him that he had talked to two people

who said they“planned. . .bring in some stuff.”” One of them

called Miami and then they took on about 1000 gallons of fuel,

but did not take any ice, aboard the shrimp boat Miss Carol J

and departed. After the Carol J returned one man stated “that

we are going to deal tonight between 7:30 and 8:00 p.m.”

That evening one of them drove up in his grey and burgandy

Thunderbird and then a red and white truck arrived and finally

a creme colored Ford van truck arrived. Four armed “spanish or

mexican” males got out of the last truck and they began to un-

load “bales wrapped in ‘krocker’ sacks from the hold in the

Carol J. and load them on” the trucks. Drake stated that he

went on the Carol J “‘and saw several bales still in the hold.”

A justice of the peace came to the dock area, swore the afiants,

then issued the search warrants for the Carol J and Coastal

Sign warehouse. He did not participate in the subequent search.

A search of the Carol J revealed 162 bales of marijuana, approx-

imately two tons, in two of the three holds of the ship. A search

App. 11

of the Coastal Sign warehouse turned up 403 bales of mari-

juana. The defendants appeal their conviction. Held:

1. The defendants enumerate but one error—that che trial

court erred in denying their motion to suppress the evidence

which they contend “was obtained as the direct result of a ser-

ies of illegal searches and seizures conducted without probable

cause.”” However, they subdivide this enumeration into five

separate claims.

A. It is urged that there was a lack of probable cause to

search the defendants truck. This enumeration does not face

the principle issue: “Was the search of the truck legal?” We find

that it was, as there was a valid consent and probable cause

existed to make the search.

Warrantless searches of motor vehicles have always been

based on different criteria than those of an individual’s home.

The principal basis has been the mobility of the auto makes it

impractical to immediately secure a warrant. Carroll v. United

States, 267 U.S. 132, 153-154 (45 SC 280, 69 L. Ed. 543) Less

stringent requirements govern search of motor vehicles because

the expectation of privacy in one’s auto is significantly less

than in one’s home. South Dakota v. Opperman, 428 U.S. 364,

367 (96 SC 3092, 49 LE2d 1000). However, there are other

exceptions to the warrant requirement: 1. consent, 2. incident

to lawful arrest, and 3. probable cause with exigent circum-

stances. United States v. Jeffers, 342 U.S. 48 (72 SC 93, 96 LE

59).

In the instant case the police officials observed from neutral

ground (across the road) the developments that aroused their

suspicion. A trained police officer, with previous experience

in investigations involving bales of marijuana, saw what he

thought to be bales of marijuana being unloaded from a white

van type truck. This is a sufficient basis for probable cause to

stop and search the truck for evidence of residue of marijuana,

for as the term imrlics -in dealing with probable cause the

police officer deals with probabilities. Sanders v. State, 235

Ga. 425, 440 (219 SE2d 768); Kiraze v. State, 147 Ga. App.

832,833( SE2d_ ).

App. 12

It is not determinative that the officer himself thought that

he did not have probable cause to search. Probable cause is not

to be determined by law enforcement officials but a neutral,

detached magistrate. Coolidge v. New Hampshire, 403 U.S. 443

(91 SC 2022, 29 LE2d 564). The defendant may be anxious to

accord undue weight to this officer’s opinion that he did not

have probable cause, but if a police officer’s opinion was con-

trolling, it is doubtful that any searches in the future would

ever be found unreasonable as law enforcement officials almost

always appear to believe they have probable cause to search.

The criterion is whether, at that moment, the facts and cir-

cumstances within his knowledge and of which he had reason-

able trustworthy information, including information from other

police officers (Whiteley v. Warden, 401 U.S. 560, 568 (91 SC

1031, 28 LE2d 306), were sufficient to warrant a prudent per-

son in believing the defendants had or were committing an of-

fense. Beck v. Ohio, 379 U.S. 89, 91 (85 SC 223, 13 LE2d

142). We find that there was probable cause.

Secondly, a valid consent search was established. No one

could seriously contest the conclusion that suspicious activi-

ties were taking place at a late hour in a formerly closed ware-

house involving a person with a known cirminal background.

A Terry-type stop was authorized because of the founded and

articulable suspicion that the defendants possessed contraband.

Adams v. Williams, 407 U.S. 143, 146 (92 SC 1921, 32 LE2d

612). The officer testified: “I asked him if he minded opening

the truck up or the back of the truck, that | wanted to see in

the back of the truck. Q. Okay, what did he say? A. He hesita-

ted and then I told him if he didn’t want to open the truck that

I would get a search warrant to open it... He reached in his

pocket pulled out a key and unlocked the door...”

Consent searches are valid (Davis v. United States, 328 U.S.

582, 583 (66 SC 1256, 90 LE 1453) but where the state relies

upon consent, the burden is upon them to demonstrate that the

consent was voluntary, and not the result of duress or coercion,

express or implied. Schneckloth v. Bustamonte, 412 U.S. 218

(93 SC 2041, 36 LE2d 854). Voluntariness must be determined

from all of the circumstances. Brand v. State, 129 Ga. App.

App. 13

747, 748 (201 SE2d 180). The record discloses the officer did

not draw his pistol, or use threatening or coercive language.

He made a statement of fact, in essence: “ Consent, or I will get

a search warrant.” Probable cause existed for the issuance of

such a warrant and we see no obstacle to the procurement of a

valid search warrant if one had been required. Where the state-

ment is made that the subject can consent or a search warrant

will be procured, if true, this does not amount to duress or

coercion as would invalidate the subsequent search. Bailey vy.

State, 147 Ga. App. 621, 622 (249 SE2d 675); Code »v. State,

234 Ga. 90 (IIT) (214 SE2d 873); see also Guest v. State, 230

Ga. 569, 571 (198 SE2d 158). “[T] he trial judge was authoriz-

ed to find that the consent was not the product of coercion,

duress or deceit.” Code v. State, 234 Ga. 90, 95, supra.

B. It is alleged that ‘“‘[t]he search of Morgan’s Dock was

accomplished by an illegal trespass upon private property

and as such any evidence found was tainted and subject to sup-

pression.” Defendant’s enumeration is fatally flawed in three

aspects. First, there was no search of Mogans’s Dock. Second,

there was no trespass. Third, even if there were a trespass, de-

fendants would have no right to avail themselves of such act as

a ground for supperssion of contraband found on their boat.

There was no search of Morgan’s Dock. The officers merely

followed dual wheel tracks from a public road onto Mr. Mor-

gan’s property (a road) and thence to his business establish-

ment—the dock area. No search was made of the dock itself.

The officers were looking for a boat capable of transporting a

large amount of marijuana into the United States. Mr. Morgan

was present during the latter part of the investigation and made

no objection. The officers were in the execution of their office

in the investigation of a crime that had been committed in their

presence at the Coastal Sign warehouse. See 87 CJS 1006,

Trespass 88 54, 55. They were always on business property

generally used by and open to the public—where a person

lawfully on the premises is generally considered to be an invitee.

See Code Ann. § 105-401 (Code § 105-401). There was no tres-

pass in the sense that there was an unlawful intrusion upon

private property, or injury to another’s property. United States

v. Hanahan, 442 F2d 649 (7th Cir. 1971); United States v.

App. 14

Conner, 478 F2d 1320 (7th Cir. 1973); see generally 27 EGL

428, Trespass SS 2, 3.

Last and most important, ‘‘[a] person who is aggrieved

by an illegal search and seizure only through the introduction

of damaging evidence secured by search of a third person’s

premises or property has not had any of his Fouth Amendment

rights infringed.” Rakas v. Illinois, U.S. (99 SC 58 LE2d 387,

395). The dock area belonged to Mr. J. W. Morgan—not the

defendants. Allegations of illegal searches, in violation of the

Fourth Amendment, are personal rights which may not be asser-

ted vicariously. Alderman v. United States, 394 U.S. 165,

174 (89 SC 961, 22 LE2d 176). In Rakas, the Supreme Court

held that the test of standing to object to searches by one

“legitimately on [the] premises’’-as stated in Jones v. United

States, 362 U.S. 257 (80 SC 725, 4LE2d 697) will no longer

be followed. They affirmed the rule of Katz v. United States,

389 U.S. 347 (88 SC 507, 19 LE2d 576) that ‘“‘capacity to

claim the protection of the Fouth Amendment depends not

upon a property right in the invaded place but upon whether

the person who claims the protection of the amendment has

a legitimate expectation of privacy in the invaded place.”

58 LE2d 401, supra. The defendant’s asserted ‘‘neither a

property nor a possessory interest in the [dock] ... [S]ince

they made no showing that they had any legitimate expectation

of privacy” in the dock area—a public business generally open

to the public, they have not suffered a violation of any Fourth

Amendment right. 58 LE2d 404, supra.

C. The warrant to search the Miss Carol J was not invalid

for a lack of showing of probable cause that the vessel contain-

ed contraband. The police officer had observed what he thought

to be bales of marijuana being unloaded from a dual wheeled

truck. The search of the truck confirmed that seeds and burlap

strings were present in the truck. The truck and its personnel

had been stopped during a trip which could have been one of a

series of trips. The only dual wheeled tracks leading to the

ocean area led to Morgan’s Dock. A witness, Don Drake, stated

in an affidavit that he had seen the white van truck come to

the dock and “four Spanish or Mexican males got out. All of

them were wearing pistols . . . [He] heard [one person] tell

App. 15

[another person] that he would meet them at the warehouse.

[He] watched as they began to unload bales wrapped in ‘krock-

er’ sacks from the hold in the Carol J.” After they loaded the

first truck another truck was “loaded to the gills ...”’ and the

driver said “lets go to the warehouse .. .” “[He] went on the

Carol J and saw several bales still in the hold.”

The test for probable cause is “whether at that moment the

facts and circumstances within their knowledge and of which

they had reasonable trustworthy information were sufficient

to warrant a prudent man in believing that the [defendants]

had committed or [were] committing an offense.” Sanders v.

State, 235 Ga. 425, 439, supra. We find probable cause to

search the Carol J was present.

D. It is alleged that the warrant authorizing the search of

the warehouse was void “because it failed to disignate the

county in which the warehouse was located and where the war-

rant was to be executed.” Defendants argue that a search

warrant “must describe the location of the property to be

searched with such exactitude as to allow a prudent officer to

locate the place definitely and with reasonable certainty.”

Therefore, they contend the “fact that the county in which the

warehouse to be searched was left blank in the warrant is a

fatal defect and renders it void.”

The affidavit for the search warrant states: “Il am an Officer

of the State of Georgia . . . and that I have reason to believe

that in Liberty County, Georgia on the following described

premises: a concrete block warehouse located on Ga. Hwy. 38

appx. 3/10 of a mile east of the SCL Railroad Tracks and bear-

ing a sign ‘Coastal Sign Co.’ and a metal building with overhead

door located next to the warehouse and the curtilage of these

buildings . . .”’ The warrant itself states: “Georgia, Liberty

County Justice of Peace Court To: All Peace Officers of The

State of Georgia Affidavit having been made before me by

John Dasher, an officer charged with the duty of enforcing the

Criminal Laws, that he has reason to believe that in

County, Georgia

App. 16

on the following described premises: A concrete block ware-

house located Ga. Hwy. 38 appx. 3/10 of a mile east of the SCL

Railroad tracks and bearing a sign ‘Coastal Sign Co.” and a

metal building with overhead door located next to the ware-

house and the curtilage of these buildings. . . There is now locat-

ed certain property, namely marijuana which is contraband .. .”

The United States Supreme Court and our appellate courts

in Georgia are in agreement that the provisions of the Fourth

Amendment of the United States Consitution and Article 1,

Section I, Paragraph X, of the 1976 Georgia Constitution

(Code Ann. 8 2-110), requiring “‘no warrant shall issue except

upon probable cause. . . particularly describing the place, or

places to be searched, and the persons or things to be seized”’

is met ““if the description sufficiently permits a prudent officer

with a search warrant to be able to locate the person and place

definitely and with reasonable certainty. Steele v. Staic, 118

Ga. App. 433, 434 (164 SE2d 255); Steele v. United States,

267 U.S. 498, 503 (45 SC 414, 69 LE757).’ Fomby v. State,

120 Ga. App. 387 (170 SE2d 585).” Reed v. State, 126 Ga.

App 323 (1) (190 SE2d 587).

In Steele v. State, 118 Ga. App. 433 supra, a copy of the

warrant omitted the name of the County which was used to

be directed to the executing officers, but “‘the affidavit” includ-

ed the name of the county along with the other description.

We found the “omission” did not affect the substantial rights

of the accused. Id. at 434. In the instant case we find the

description in the warrant was sufficiently definite for any

executing officer to locate the place to be searched without

difficulty. Also, in the factual context of this case, the exe-

cuting officer had already been observing the building he was

to search with the warrant and we find no possibility of sub-

stantive error—only possible technical error, which is at most

harmless error. This enumeration is without merit.

E. Defendants contend the warrant’s affidavit to search the

warehouse “contained a material misstatement known by the

affiant” and includes information from “‘prior illegal searches”

or “an invalid warrant.”” We have determined that the prior

App. 17

search of the white van truck was permissive and the warrant

for the search of the warehouse was not invalid because of the

claimed lack of designation of a county. The warrant for the ~

Miss Carol J was based in part on the statement of Don Drake

who was at Morgan’ Dock when the police arrived. His state-

ment included the assertion that after the others had loaded

the bales aboard the trucks and left: “I went on the Carol J

and saw several bales still in the hold.’’ Officers removed 162

bales of marijuana from the holds of the Carol J. Defendants

augue that “it is obious that Drake’s statement that he went

aboard the boat and saw ‘several’ bales is not true.” Thus, he

contends “the warrant issued to search the warehouse was

subsequently tainted and thus invalid.” (Emphasis supplied.)

We emphasize that no argument is made that the st »tement

relating to “several” bales of marijuana remaining aboard the

Carol J. tainted the search of the shrimp boat. The argument is

advanced that the statement was so inaccurate as to be patently

false which was discovered by the officers after they searched

the| Carol J, thus—the allegedly false statement tained the sub-

sequent search of the Coastal Sign warehouse by stating in the

application for that warrant that a search of the Carol J “has

revealed appx. 2 tons of baled marijuana.” We do not agree.

In Franks v. Delaware, U.S. (98 SC , 57 LE2d 667,

672), the Supreme Court held “‘where the defendant makes a

substantial preliminary showing that a false statement know-

ingly and intentionally, or with reckless disregard for truth,

was included in the warrant affidavit, and if the allegedly false

Statement is necessary to the finding of probable cause, the

Fourth Amendment required that a hearing be held at the

defendant’s request. In the event at the hearing the allegation

of perjury or reckless disregard is established by the defendant

by a preponderance of the evidence, and, with the affidavit’s

false material set to one side, the affidavit’s remaining content

is insufficient to establish probable cause, the search warrant

must be voided and the fruits of the search excluded to the

same extent as if probable cause was lacking on the face of the

affidavit.” (Emphasis suppliedl)

App. 18

Pretermitting the issue of whether the statement by Don

Drake was false or made with reckless disregard for the truth,

with that evidence disregarded the remaining factual criteria

adequately establish probable cause to search the Coastal Sign

warehouse. Accordingly, under Franks v. Delaware, supra, the

search warrant was not invalidated even if the Drake statement

were excluded. This enumeration is without merit.

Judgment affirmed. Smith and Birdsong, JJ., concur.

App. 19

STATE’S EXHIBIT 1 WAS IN HAND SCRIPT IN MATERIAL

PARTS. WHAT FOLLOWS IS A TYPE SCRIPT RENDITION.

App. 20

SEARCH WARRANT

DEPARTMENT

GEORGIA, LIBERTY COUNTY JUSTICE OF PEACE COURT

TO: ALL PEACE OFFICERS OF THE STATE OF GEORGIA

Affidavit having been made before me by JOHN DASHER

an officer charged with the duty of enforcing the Criminal

Laws, that he has reason to believe that in LIBERTY County,

Georgia

on the person of:

AT the following described premises: MORGANS DOCK

SUNBURY LIBERTY COUNTY, GEORGIA

AND in the following described boat: Miss Carol J. A

55 foot Fiberglass white with blue trim shrimpboat located

at this Dock mentioned above.

There is now located certain property, namely,

Marijuana and documents, charts and maps related to the

sale, transportation and distribution of said marijuana.

which is contraband which is in violation of the Georgia

Controlled Substances Act and documents that would be

evidence of the commission of the crime of possession and

transportation of inarijuna.

Based upon the affidavit given under oath or affirmation

and all other testimony given to me under oath or affirma-

tion I am satisfied that there is probable cause to believe

that a crime is being committed or has been committed and

that the property described above is presently located on

the person, premises and vehicle described above. You are

hereby commanded to search forthwith, and within

Ten (10) days, the person, premises and vehicle described

App. 21

above and to seize the property, if located, described above.

A copy of this Warrant is to be left with the person searched

or if no person is available, on the premises or vehicle

searched, and a written return, including an inventory of

any instruments, articles or things seized, shall be made

before me or any Court of competent jurisdiction without

unnecessary delay after the execution of this Search War-

rant.

SO ORDERED this 14th day of March, 1978, at_7:50 p.m.

Jack Keel

TITLE: Ex-officio Justice of the Peace

COURT: J. P.

IT APPEARING from the aforementioned Affidavit that

there are reasonable grounds to believe that the giving of

verbal notice would greatly increase the officer’s peril

and (or) lead to the immediate destruction of the instu-

ments, articles or things ordered to be seized, IT IS THERE-

FORE ORDERED that entry be made without knocking

and the giving of verbal notice of the officer’s authority

and purpose.

SO ORDERED This____ day of__, 19_at__.M.

TITLE:

COURT:

App. 22

RETURN

I received this Search Warrant and executed it on the

14th day of March 1978, and 8:00 A.M.

I searched the person, premises and vehicle described in

the Warrant and left a copy of this Warrant on Boat (Carol J)

or since no person was available | left a copy in the following

conspicuous place

On Boat (Miss Carol J)

The following is an inventory of the instruments, articles,

or things seized pursuant to this Search Warrant:

See attached inventory

This inventory was made in the presence of S-A Ralph

« Stone GBI and | swear (affirm) that this inventory is a true and

detailed account of all instruments, articles or things seized

pursuant to this Search Warrant.

John Dasher

TITLE: Deputy Sheriff

Subscribed and sworn to and returned before me this 27th day

of March, 1978, at 11:15 A.M.

John R. Harvey

TITLE: Judge

COURT: Superior Court

App. 23

ITEMS SEIZED DURING SEARCH AT J. W. MORGAN’S

17.

18.

DOCK ON MARCH 14, 1978

.One 65 foot shrimp boat, bearing named “Miss Carol J”,

Official Number 555920

. 162 bales wrapped in burlap of green leafy material

. Latent finger prints lifted from the wheel house.

. One Appolo Mark II alarm clock.

.One open carton Winston Cigarettes containg 7 packs of

Winstons.

. One legal size pad.

. One white paper towel.

. One empty Winston cigarette pack.

. One piece of styrofoam.

. One green wooden pencil.

. One package of (pill) tablets.

. One piece of Winston Cigarette Carton bearing numbers.

. One Holiday Inn empty match book cover.

. Two star shaped glass ash trays.

. One seven ounce can furniture polish.

. One back scratcher.

Two packs of ‘“‘Red Man” chewing tobacco.

One roll white toilet tissue.

App. 24

19

20.

21.

22.

a3.

24.

25.

26.

at.

28.

29.

30.

ak.

32.

33.

34.

35.

36.

ca

38.

. One Green plastic tool.

One blue hair brush.

One black plastic comb.

One white coffee cup.

One volt meter.

One pack “3 torches” matches.

One operators manuel for Simrad Sounder.

Two charts inter-coastal waterway for St. Simons Sound.

One chart inter-coastal waterway to Palm Shores, Florida.

One specification manuel for Motorala Base Station

Antenna.

One coverless Pent House Magazine.

One blue plastic drinking glass.

One black plastic instrument cover. .

One white coffee cup.

One Craftsman screw driver.

One roll black electrical tape.

One Browning single blade pocket knife.

Cigarette butts from Wheel House ash tray.

Operating and Instruction Manuel for Nelco Auto Fix 500.

One Daily Log Chart.

App. 25

39. One pack Red Man chewing tobacco.

40. One Notical Chart of Charleston Light to Cape Canaveral.

41. One 1977 Calander.

42. One pair pliers.

43. One 12” adjustable wrench.

44. One package Tetley Tea Bags.

45. One Box Sunshine Vanilla Waffers.

46. One Reynolds Browning Bag Box.

47. Three Brown paper bags.

48. One empty Bayer Aspirin bottle.

49. One open package of “Handy Wipes”’.

50. Eight boxes *‘3 torches” safety matches.

51. One empty egg carton.

52. Two plastic wrappers of “Dinner Plates’.

53. One open package of “‘Dinner Platters”.

54. One unopen package of “Dinner Platters”.

56. One Noutical Chart for Florida Keys to Sombraro Key.

55. One Noutical Chart for Cape Kennedy to Key West.

57. One Noutical Chart for Key West Harbor and approches.

58. One plug thick cut apple brand chewing tobacco.

59. Two plastic plates.

App. 26

60.

61.

62.

63.

64.

65.

66.

67.

68.

69.

70.

71

72.

73.

74,

2

76.

77.

78.

79.

One metal pot lid.

One Brown leather and denium cloth wallet belonging

to Alan Neal Arnsdorff.

One black leather wallet belonging to Daniel Phillip Smith.

One empty Winston Carton.

One open Kool King carton with 8 packs.

Three unopen packs of Winston Cigarettes.

Five (5) ounce can of Libby Vienna Sausage.

One roll yellow plastic tape.

Two cans Beach Cliff Fish Steaks.

Three boxes “3 Torch Matches”.

One pack “D” Cell containing 2 flash light batteries.

. One package nylon bands.

One mirrow.

Miscellaneous personal papers, instructional charts and op-

erating manuels.

One roll blue toilet tissue.

One set measuring spoons.

Two empty Winston Cigarette packs.

One (full) Winston Cigarette pack.

One pack Bysicle playing cards.

One Manuel for “Decca Super 101”.

App. 27

80. One piece of paper.

81. One paper towel tube.

82. One piece of paper towel.

83. One green plastic tackle box.

84. Two empty twelve (12) ounce coke cans.

App. 28

AFFIDAVIT FOR SEARCH WARRANT

Sheriff's —_ DEPARTMENT

GEORGIA, Liberty COUNTY Justice of Peace COURT

The undersigned, JOHN DASHER, being duly sworn de-

poses and says:

That I am an Officer of the State of Georgia or its politi-

cal subdivisions charged with the duty of enforcing the Criminal

Laws and that I have reason to believe that in Liberty County,

Georgia

on the person of:

_At the following described premises: Morgan’s Dock Sun-

bury Liberty County, Georgia

And in the following described Boat: (J. K.) “Miss Carol J.”

a 55 foot Fiberglass white with blue trim (shrimpboat)

located at this dock mentioned above.

There is now located certain property, namely

Marijuana and documents, charts and maps related to the

sale, transportation and distribution of said marijuana.

Which is

contraband which is in violation of the Georgia Controlled

Substances Act and documents that would be evidence of

the commission of the crime of possession and transporta-

tion of marijuana.

And the facts tending to established probable cause that a crime

has been committed or is being committed and that the instru-

ments, articles or things described above are presently located

as described above are as follows:

App. 29

On March 13, (J. K.) 1978 at approximately 7:30 p.m.

(J. K.) the above described shrimpboat ‘“‘Miss Carol J” was

seen docked at the Morgan’s Dock Sunbury Liberty County

and a substance was being unloaded on to a white Ford

truck tag number PG7007 GA. The substance being unload-

ed appeared to be bales of marijuana. This act was witnessed

by a Don Michael Drake B/M. See attached statement that

is made a part of this affidavit.

At 1:05 A.M., March 14, 1978, Deputy Sheriff Groover stopped

the above mentioned white Ford Truck on Ga Hwy 38. The

Driver of this vehicle consented to a search of the vehicle. Three

armed men were found in the rear of this vehicle. Burlap and

what appeared to be marijuana seeds and residue were found in

the truck.

I swear (affirm) that all information in this Affidavit and all

other Testimony given by me under oath is true to the best of

my knowledge and belief.

John Dasher

TITLE: Deputy Sheriff

Subscribed and sworn to before me this 14th day of March

1978 at 07:15 A.M.

Jack Keel

TITLE: Ex-officio Justice of the Peace

COURT: J. P.

App. 30

IN THE SUPERIOR COURT FOR

THE COUNTY OF LIBERTY

STATE OF GEORGIA

STATE OF GEORGIA,

Plaintiff,

—Vvs— INDICTMENT NO.:2801

DANNY SMITH,

Defendant.

MOTION TO SUPPRESS EVIDENCE

ILLEGALLY SEIZED

COMES NOW DANNY SMITH, defendant named above,

and respectfully moves this Court to suppress as evidence

items seized on March 14, 1978, pursuant to two (2) search

warrants issued by the Honorable Jack Keel on said date, anu

as grounds for said Motion, shows the Court as follows:

l.

That on the 16th day of March, 1978 this defendant was

indicted on a special presentment in the above. case, and charged

with possessing marijuana with intent to distribute the same

in violation of the Georgia Control Substances Act.

r

That said indictment was based on items seized as a result

of execution of two (2) search warrants issued by the Honora-

ble Jack Keel, Ex-Officio Justice of the Peace, one (1) at 7:50

a.m. on March 14, 1978 to search Morgans Dock, Sunbury,

Liberty County, Georgia, and a shrimpboat known as the ‘‘Miss

Carol J” located at said dock, and the second (2nd) issued at

9:15 a.m. on March 14, 1978 to search a concrete block ware-

house located on Georgia Highway 38 approximately .3 of a

mile east of the SCL tracks and bearing a sign “Coastal Sign

Co.” and a metal building with an overhead door located next

to the warehouse and the curtilage of these buildings and an

enclosed truck, red cab, white body, International Harvester

make, bearing GB-3761, Mississippi plates parked next to the

above warehouse and a two-door Thunderbird, Maroon over

Grey color, Georgia tag WCH-683.

App. 31

3.

The search and seizure with warrants was illegal because:

A. — THE WAREHOUSE SEARCH WARRANT

1. This search warrant did not contain a description suffi-

cient to enable the officer who served and executed said war-

rant to ascertain with reasonable certainty the place intended

to be searched, nor could said officer(s) ascertain with reason-

able certainty the identity of the place intended. Specifically,

the warrant does not describe the county in which it is to be

served and executed. See, Vaughn v. The State, 141 Ga. App.

453. Consequently the search and seizure was illegal because

the warrant is insufficient on its face.

B. — THE BOAT SEARCH WARRANT

1. This warrant and the subsequent search and seizure

was illegal because there was no probable cause for the is-

suance of the warrant. Specifically, the Affiant on whose Af-

fidavit it issued had no personal knowledge of the details of any

criminal information; that the facts upon which said warrant

issued were not supplied by oath or affirmation; that the stop-

ping of the truck described in the Affidavit of JOHN DASHER

upon which the warrant issued was without specific and arti-

culable facts, and constituted an illegal arrest, and the sub-

sequent search with or without consent was illegal and consq-

quently not be considered as probable cause; and that the

information contained in the Affidavit respecting the witness

DON MICHAEL DRAKE was absent good cause for crediting

the heresay; and that there was no judicial discretion exer-

cised and determination made in issuing said search warrant.

4.

This Motion has been made to the maximum degree of

specificity possible with the present state of knowledge and de-

fendant will amend his Motion as required by Court at any time

more specific evidence becomes available as to the facts and

circumstances of the seizures.

App. 32

WHEREFORE, the defendant DANNY SMITH moves this

Court:

(a) That the District Attorney and State show cause why

the prayers of this Motion should not be granted pursuant to

the law of Georgia;

(b) That a full and complete hearing be had as to all matters

involved in this Motion;

(c) That this Court suppress all evidence obtained in the

search and seizure by execution of the above-described search

warrants in Liberty County, Georgia; and

(d) That this Court declare by order that the illegally seized

items be not introduced or referred to in any manner whatso-

ever in any trial of this case.

PYE, GROOVER, EDENFIELD & DAILEY

BY:

LEWIS M. GROOVER, JR.

BY:

GERALD M. EDENFIELD

ATTORNEYS FOR DEFENDANT

2801 Buford Highway, N.E.

Suite 375

Atlanta, Georgia 30329

(404) 325-9411

App. 33

IN THE SUPERIOR COURT OF LEBERTY COUNTY

STATE OF GEORGIA

THE STATE OF GEORGIA

VS INDICTMENT NO. 2801

DANNY SMITH

ORDER

Defendant, Danny Smith, through his attorney, moved to

suppress evidence seized pursuant to two search warrants issued

by the Honorable Jack Keel, Ex-Officio Justice of the Peace

of Liberty County, Georgia.

The Defendant contends that the search warrant executed

for the search of the warehouse was not legally sufficient.

Specifically, he contends that the warrant did not mention the

county in which it was to be served, which prevented the of-

ficer from ascertaining with reasonable certainty the location

and identity of the place to be searched. In support of this con-

tention, the Defendant cites the case of Vaughn v. State, 141

Ga. App. 453.

This Court finds that the warrant to search the warehouse

was legally sufficient enabling the officer to ascertain with

reasonable certainty and identity the place intended. This Court

finds that the affidavit of John Dasher which was attached to

said warrant shows that the location is Liberty County and

that the search warrant itself was captioned Liberty County.

This case is distinguished from the Vaughn case, supra, since in

the Vaughn case neither the affidavit or the warrant had any

designation as to city, county, or state. This Court further

finds that the warrant described the location of the warehouse

with such exactitude so as to allow a prudent officer to locate

the place definitely and with reasonable certainty. This Court

concludes that the Motion pertaining to the search of the ware-

house is without merit and is hereby denied.

App. 34

Secondly, the Defendant contends that the search warrant

relating to the boat and the subsequent search and seizure was

illegal because there was no probable cause for the issuance of

this warrant.

This Court finds that attached to the affidavit and incor-

porated therein is a detailed eye-witness account by Don

Michael Drake which was given to GBI Agent Ralph Stone.

Also, included in the affidavit was a sworn statement by invest-

igating officer, Deputy Sheriff John Dasher, which relates his

investigation and further serves to corroborate the statement of

Don Michael Drake. Also, prior to issuing the warrant, the

Justice of the Peace had the sworn testimony of GBI Agent

Stone. This Court finds that based on the above accounts,

which were presented to Justice of the Peace Keel, probable

cause for the issuance of the warrant did exist. Therefore, said

Motion is without merit and the same is hereby denied.

SO ORDERED, this the 31st day of August, 1978.

JOHN R. HARVEY, Judge CO

Liberty Superior Court

Atlantic Judicial Circuit

App. 35

Relevant proceedings upon the Motion to Suppress and relevant

portions of the testimony of John Dasher.

These excerpts indicated lack of probable cause for the issuance

of the Warrant for the search of “Miss Carol J” and also show

that the search was based upon unsworn and heresay statements

of the accomplice, Don Michael Drake. The excerpts are taken

from the Court Reporter’s transcript entitled Motion Volumne

i, pp. 67, 66, 6D, FO, Tl, 72, 73, 74,75, 77, 75 2nd, 77, 75

3rd, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92,

93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106,

107, 108, 109 and 110.

Mr. Cheney is Honorable Dupont K. Cheney, District Attorney

of the Atlantic Circuit, and Mr. Groover is Mr. Lewis M. Gro-

over, Jr., of cousel for Danny Smith.

. . . Your Honor, I think it’s a sufficient affidavit. You don’t

have to prove there’s marijuana in the boat. You have to have

. a prudent man has got to believe from the facts that are

presented to him, or from the facts that he knows of his own

knowledge, uh, reason to believe that that. .. that boat con-

tained marijuana. And I think this is sufficient, You Honor, .. .

THE COURT: All right, sir.

MR. CHENEY: ... for a reasonable man to believe.

THE COURT: The State would intend to rely on the state-

ment. The affidavit is not going to introduce any testimony,

is that the position?

MR. CHENEY: Uh, they are alleging that the affidavit

itself is not sufficient. Based upon that allegation here. Uh, the

State is not going to introduce testimony other than what’s in

the affidavit itself. Uh, the, uh, the State would be in a position

to call, uh, GBI Agent Stone, uh, be in in a position to call

Deputy Dasher if the Court desires to hear from them. But they

have not, uh, as I read the objections they’ve made, they are

alleging that the affidavit itself is. . . is not sufficient. Uh, now,

the State has not, uh, going to go, uh, . . . and attempt to go

App. 36

outside the affidavit to show that the J. P. was given informa-

tion other than what’s on the affidavit itself. Uh, because the

State contends that the affidavit is sufficient to give reasonable

grounds to believe there’s marijuana on that shrimp boat.

THE COURT: All right, sir. Do ya'll desire to introduce

any evidence?

MR. GROOVER: Yes, sir.

THE COURT: All right.

MR. GROOVER: We’d like to call Officer Dasher to the

stand.

THE COURT: All right.

STENOGRAPHER’S NOTE: At this time, Mr. Groover

admimisters the oath to JOHN DASHER.

THE COURT: All right. All right, you may proceed. JOHN

DASHER, called as a witness by the Defense, after first having

been duly sworn, testified as follows:

DIRECT EXAMINATION BY MR. GROOVER

Q. What did you. . . have you stated your name, sir?

A. No, sir.

Q. Would you state your name for the record, please.

A. John Dasher.

Q. And what is your occupation?

A. Deputy Sheriff of the Liberty County Sheriff's Depart-

ment.

Q. How long have your been so employed, sir?

A. Since October.

Q. Of what?

A. of *77.

Q. Okay. And what have your responsibilities been in the

course of your employment with the Sheriff’s Office?

App. 37

A. Enforcing the law. Such, uh, I’ve worked the roads,

I’ve worked detective work.

Q. Okay. Have you had any special training in any par-

ticular type of law enforecment?

A. No, sir, nothing but mandate training is all.

Q. Do you recall. . . were you so employed on the night of

March the 13th, 1977?

A. Yes, sir.

Q. And what were your responsibilities that night?

A. Just routine patrol.

Q. And was anyone patrolling with you?

A. Yes, sir.

Q. Who was that?

A. George Stagmeier and Clyde Simmons.

Q. Okay. Were you in any particular numbered car, or

did that car have a designation from the Sheriff’s Office?

A. No, sir.

Q. Did you use any call letters when you made use of the

police radio?

A. Yes, sir.

Q. What were those?

A. 7K, Kenny.

Q. 7K?

A. Right.

Q. And did you have occasion to patrol along Highway 3

that night? |

A. Yes, sir.

Q. And during the course of you patrolling, were you driv-

ing or was somebody else?

A. I was driving part of it.

Q. Were you. . . would. . . would you tell me what time

period you drove?

A. Yes, sir, from about the first of dark until 9:30, 10:00

o’clock. Somewhere along in there.

App. 38

Q. Okay. Now, in the course of patrolling Georgia Highway

38, did anything out of the ordinary as far as you were con-

cerned as a Police Officer, come to your attention?

A. Yes, sir.

Q. And what time was that?

A. Between 8:30 and 9:00 o’clock.

Q. And would you describe to the Court what you observed

or heard about that caused you to think it was out of the

ordinary?

A. We seen some movement around the Coastal Sign Com-

pany.

Q. Sir, would you describe what that is for the Court,

please?

A. What, the Coastal Sign Company?

Q. Yes, sir.

A. A warehouse located down at Midway.

Q. Okay. Now, is there anything there beside that ware-

house?

A. There’s another warehouse there.

Q. Another warehouse.

A. Right. A trailer.

Q. And at the time you first observed it, were there any

other buildings or cars or trucks or anything else around it?

A. Other buildings?

Q. Yes, sir.

A. Right.

Q. What other buildings were there?

A. Well there’s other warehouses, couple of warehouses

there, there’s a trailer there.

Q. On. . . within the curtilage of the warehouse, is that

correct?

A. Um-huh.

App. 39

Q. Were there any vehicles around there?

A. They had several vehicles there, yes, sir.

Q. All right, could you tell us what they were, please?

MR. CHENEY: Your Honor, the State is going to object

to any further questioning as to the warehouse, as the issue

before the Court new is to determine whether they had probable

cause to search the boat or not. I don’t know what the rele-

vancy isin...

MR. GROOVER: i don’t...

MR. CHENEY: . . . asking this Deputy Sheriff concerning

the warehouse that he saw up on Highway 38.

THE COURT: What would. . .

MR. CHENEY: Unless he could tie it in with the boat.

THE COURT: What would be the relevancy of it, Mr. . .

MR. GROOVER: Uh, as I...

THE COURT: .. . Groover?

MR. GROOVER: .. . understand the facts, Your Honor,

they started at the warehouse and all this, uh, blossomed into

them stopping the truck and going to the dock.

THE COURT: All right, I'll overrule the objection.

Q. Would you repeat the last. . . do you remember the

question, sir?

A. No, sir.

MR. GROOVER: Would you repeat that please? Could you

repeat my last question to me?

COURT REPORTER: Let me play it back for you.

MR. GROOVER: Okay.

THE COURT: All right. What were the other vehicles

around the warehouse was the question.

Q. What were the other vehicles around the warehouse?

A. Okay, they were an old Chevrolet truck there, and alot of

his pecan trucks, that’s his, uh,.. . I believe it was pecan truck,

I’m not really sure.

App. 40

Q. You say “his”, who do you mean?

A. Well, whoever owns the trucks there, I’m not really sure

who owns them.

Q. Okay.

A. Had several bi. . . big trucks there.

Q. What do these big trucks look like?

A. Well one of ‘em looked like a tractor and trailer, other

on looked like a ten wheeler, the other one looked like a ice

cream truck. Just different kinds.

Q. And were these trucks normally there as you’d seen on

previous nights?

A. Right.

Q. Okay, so it was normal for trucks to be at the warehouse,

is that correct?

A. Right.

Q. Now, what, uh, . . . did you observe in specifically to

cause you any alarm about what you observed?

A. I seen someone walking around on the outside.

Q. Okay. Had you ever been down to that warehouse be-

fore March the 13th, that night?

A. Yes, sir.

Q. And had you ever seen anybody outside of it before?

A. No, sir, not at night.

Q. Do people live in the vincinty of the warehouse?

A. That I’m not sure of.

Q. You don’t know...

A. As far as I knew at that time, no, sir, they was nobody

living there.

Q. Did. . . was there a trailer there where somebody lived?

A. I’m not sure that they lived there or not, there was a

trailer there. I’ve never seen one. . . anyone there.

Q. Okay, so you don’t know whether it was unusual or

aa

App. 41

A. Right.

Q. . . . for people to be there since you don’t know whether

they live there or not, is that correct?

A. I’ve never seen anybody there, no, sir.

Q. But you don’t know one way or the other.

MR. CHENEY: Your Honor, I think he answered the

question. I'll object to him continuing to ask the witness

the same question trying to get him to answer a different

matter.

THE COURT: Right. I sustain the objection. It’s repeti-

tious.

Q. All right, what did you do when you saw this person

walking outside the warehouse?

A. Okay, we pulled in to the warehouse.

Q. All right. Did he commit any offenses that you saw, sir?

A. No, sir.

Q. Okay. Now once you pulled in to the warehouse, would

you tell me in detail what occurred?

A. We pulled up to the front of the warehouse door and Mrs.

Youngblood came out and talked with us for a few minutes

and we drove off.

Q. Okay. And who is Mrs. Youngblood?

A. Mrs. Su. . . Sue Yougblood.

Q. And what does she have to do with that place?

A. Well I guess it’s part of her business there.

Q. Well, do you know?

A. Not for sure, no sir.

Q. All right. What conversation took place?

A. We just asked her was there any trouble and she advised

no.

Q. She advised what?

A. No.

Q. All right. Were your suspicions allayed or settled at that

point?

App. 42

A. No, sir.

Q. Even though you’d seen no criminal activity and the

owner or part owner of the place had told you nothing was

wrong.

A. That’s right.

Q. Okay, now what did you do. . . was that the total of the

conversation that was had there at the scene?

A. Yes, sir.

Q. Okay, what did you do next?

A. We left.

Q. Where did you go?

A. We went east on 38.

Q. All right. Is that towards the coast or away from the

coast?

A. That’s towards the coast.

Q. All right. Specifically where did you go east on 38?

A. Down by the Isle of Wight Road. Across from it.

Q. The Isle of Wight road?

A. Right.

Q. How far from the warehouse was that?

A. Mile, half a mile.

Q. All right. What did you do when you got to the Isle of

Wight house. . . or Wight Road?

A. We stopped.

Q. What did you do when you stopped?

A. We talked a few minutes.

--Q. What did you talk about?

MR. CHENEY: Your Honor, I’ve got to object to this.

Now it has nothing. . . he has not tied it in any way in to

the search of the boat. He’s dealing with the warehouse.

MR. GROOVER: Your Honor, is. . .

MR. CHENEY: Are we going to go from step A, when

~these officers started the investigation, all the way through,

App. 43

fine, but that’s what you’re going to get from all this. And

if he’s entitled to all that information, fine, but it does not

relate to the search of the boat.

THE COURT: What does. . .

MR. CHENEY: It relates to the search of the warehouse.

THE COURT: What is it relevant to show, Mr. Goover?

MR. GROOVER: Your Honor, they. . . we are contend-

ing that there’s no probable cause attached to the issuance

of the search warrant. And all of this is a part in parcel of

one transaction.

MR. CHENEY: There is not a word in this affidavit for

search warrant dealing with that warehouse or Mrs. Young-

blood’s statement, or anything else.

MR. GROOVER: There he goes trying to separate every-

thing when it’s benficial to the State. He’s made the state-

ment here today that everything was one transaction. . .

THE COURT: Well, ...

MR. GROOVER: .. . tied together.

THE COURT: ... well, where. . . where is it referred to

in the statement or in the affidavit? I mean, uh, if it’s refer-

red to in there, in either the statement or in the affidavit,

uh, then, of course, it would be relevant to the issue. If it’s

not referred to in there then it would be irrelevant.

MR. GROOVER: Well, it’s referred to in Donald Michael

Drake’s statement which they attach and make a part of

the affidavit, Your Honor.

THE COURT: About the warehouse?

MR. GROOVER: Yes, sir. About going to the warehouse.

THE COURT: (Pause) And where is it referred to in the

statement. .. let me...

MR. GROOVER: I think it’s in the latter three pages,

Your Honor.

(Pause) ‘““When Danny got to the dock with the trucks. . .”

App. 44

that’s in the middle of the sentence, ...“I heard DeWayne

tell Danny that he would meet them at the warehouse. |

watched as they began to unload”. . .

THE COURT: (Pause) Well, is. . . is B section of your

motion directed to the search of the warehouse, or to the

search of the boat?

MR. GROOVER: It’s directed to the issuance of the

warrant with no probable cause for the search of the boat,

Your Honor. But, all of this investigation, uh, supposedly

in the affidavit aroused the officers to the point that they

felt they had probable cause and to go to Judge Keel

with it.

MR. CHENEY: Right, Your Honor, and the statement by

Don Michael Drake is . . .is nowhere in that statement, that

would indicate that he observed anything that took place

at the warehouse.

MR. GROOVER: | also. . .

MR. CHENEY: Or anywhere warehouse.

Secondly, uh, the, uh, the affidavit itself is silent as to

showing the probable. . . probable cause, uh, to show any-

thing that supposedly occurred at the warehouse as a basis

for the issuance of the search warrant, uh, for the boat.

THE COURT: Now that’s what I want to find. If you'll

just give me a minute here, there is so many of these papers.

Let. . .let me look at it. (Pause). . . (Court examines same)

Now was the statement of Don Drake made a part of

the affidavit?

MR. GROOVER: Yes, sir, it was.

THE COURT: Okay.

MR. CHENEY: For the boat, yes, sir.

THE COURT: For the boat is was?

MR. CHENEY: Yes, sir.

MR. GROOVER: It says,. . . it says, “‘I also recall over-

App. 45

hearing Danny ask David’s brother if he knew the password

to the warehouse because they were heavily armed and

somebody would be inside.”

THE COURT: All right, the Courts going. . .

MR. CHENEY: It doesn’t specify which warehouse in

that statement, Your Honor.

THE COURT: All right.

MR. CHENEY: To be connected to the. . .

MR. GROOVER: Well now. . .

MR. CHENEY: .. . Coastal Sign Company.

THE COURT: .. . well the Courts going to overrule

the objection.

THE COURT: All right, sir, you may proceed.

Q. All right. Once you got to this road that you discribed

for the Court and stopped, what did you discuss?

A. How unusual it was for a woman to be out that time at

night by herself at the warehouse.

Q. And this was at 8:30 or 9:00 o’clock?

A. That’s right.

Q. Did she tell you what she was doing at the warehouse?

A. No, sir.

Q. She didn’t say, “I’m working late here tonight’?

A. No, sir.

Q. Did she work at the warehouse or did you know whether

she did?

A. I don’t know whether she did or not.

Q. And was that the gist of your conversation?

A. Right.

Q. And after that few words was passed, what if anything

did you do, sir?

A. We decided we’d watch her for a little bit and make sure

she’d be all right. See what was going on.

App. 46

Q. All right. And did you leave the road a mile away from

the warehouse to watch the warehouse?

A. No, sir. We walked back up the edge of the road and

across from the warehouse.

Q. Across from the warehouse?

A. Right.

Q. And did you set up surveillance then?

A. Yes, sir.

Q. Where was that surveillance set up?

A. Right across the road from the warehouse.

Q. In the bushes?

A. Right there across the road.

Q. Was it in the bushes?

A. No, sir, wasn’t any bushes there to amount to anything.

It was cleared up and there was a telephone pole and a few

bushes around there.

Q. Were you standing out in the open or were you hidden

from view?

A. Sitting right on the side of the ditch.

Q. In plain view.

A. Plain view.

Q. Okay.

A. Most of the time?

Q. All right. Was there a time when you weren’t in plain

view?

A. Yes, sir.

Q. When was that?

A. When we left.

Q. And that’s, uh, from continuously from the time you

got here until you left, you were in plain view.

A. Right.

Q. Okay. Did. . . would you tell the Court how far away

you were from the warehouse? In terms of yards.

App. 47

A. Probably 50 yards, maybe 60. I’m not really sure.

Q. And was it dark

A. Yes, sir.

Q. And was it foggy that night?

A. Not that I recall.

Q. Wasn’t any fog at all the night?

A. There probably was, sure.

Q. Okay. Now, how long did you watch the warehouse?

A. At what point?

Q. At that point.

A. If that’s the one, we stayed there approximately 30

minutes to a hour.

Q. Okay, and what did you see in the course of that 30

minutes to an hour?

A. Seen a Thunderbird pull in.

Q. Is that all?

A. At that point, yes, sir.

Q. Okay. All you saw was a Thunderbird ride in and, uh,

the rest of the time you saw nothing and then left.

A. No, sir.

Q. That’s incorrect?

A. That’s right.

Q. Tell me where that’s incorrect, please.

A. When it left. . . it did’t leave. . . we seen more before

it left.

Q. You seen more of what?

A. Well he pulled up there and stopped, the subject got out

of it.

Q. Did you recognize the subject?

A. No, sir.

Q. Because you didn’t know him or because you were too

far away to tell who it was?

A. Because I didn’t know him.

App. 48

Q. Okay. Do you know what he looked like?

A. He was a white male.

Q. Any other description of him?

A. Kind of long hair.

Q. How much. . . was he fat, slim?

A. He wasn’t fat, kind of medium built.

Q. Okay. How old did he appear to be?

A. I really didn’t pay any attention.

Q. Any other characteristics about him that would be

identifiable?

A. No, sir.

Q. Okay. Now after he got out of the car, what if anything

did you see?

A. Seen the car turn around and head back out towards

the highway and stop again.

Q. While the car was there, did you see him, uh, after he got

out of the car, go into the warehouse?

A. He went towards the trailer, I’m not sure of where he

went at that point.

Q. You lost sight of him.

A. Right.

Q. Did he come back to the car that you saw?

A. I’m not sure if it’s the same one or not. Somone came

back to the car I guess.

Q. And got in the car and the car left.

THE COURT: Well, why are we getting away from the

issue involved. . .

MR. GROOVER: Well, ...

THE COURT: ... If... if it’s not referred to in the af-

fidavit? The only issue for the Court to determine in this,

if | understand correctly, is whether or not there was suf-

ficient evidence for the Justice of the Peace to establish

probable cause to issue the search warrant. And if it’s in the

App. 49 |

affidavit,. .. the State. . . the State agreed to rely entirely

upon the statement of Mr. Drake and the affidavit is sworn

to by the officer. And unless those things are referred to in

his affidavit or unless he can establish that additional evi-

dence was given before the Court it looks like to me like it

would be irrelevant.

MR. GROOVER: Well, Your Honor, I think all of their

activities that night that lead them to present this matter

to Judge Keel for the issuance of the search warrant,...

THE COURT: Why would that be relevant? It’s up to

Judge Keel to establish probable cause. It’s what evidence

that was presented to Judge Keel for him to make that

determination. It wasn’t what this officer did. He could have

done. . . he could have been an eye witness, but if he didn’t

present that to Judge Keel, for him to make the legal judi-

cial determination there was probable cause then it’s irrele-

vant to the issue. Now, I overruled the motion awhile ago

but I wanted it limited to such things that’s either referred

to in his statement or to, uh, uh, the statement of Mr. Drake

or to. . . or upon evidence being shown that that was, uh,

evidence that was presented to Judge Keel for him in mak-

ing that determination.

MR. GROOVER: All right, sir.

THE COURT: So, if I understand this proceeding this

is just a... a primary review of this Court of his judicial

proceedings to determine whether or not he, in fact, had

sufficient evidence to establish probable cause to issue the

warrant.

MR. GROOVER: Yées, sir.

THE COURT: All right, sir.

Q. After you left the warehouse, where did you go then?

A. Went west on 38 toward Midway.

Q. All right. And how far. . . to what point did you go on

38? )

App. 50

A. KOG Road.

Q. To what, sir?

A. To the KOG Road.

Q. How far is that from the warehouse?

A. Approximately a mile.

Q. Is that towards the Coast or away from it?

A. Towards Midway.

Q. Well is Midway towards the Coast from the warehouse?

A. No, sir.

Q. So it’s away from it.

A. Right.

Q. Now when you got to that road, what, if anything,

occurred?

A. Turned around.

Q. All right, once you got turned around, what did you do,

sir?

MR. CHENEY: Your Honor, are we going to continue

with this? I... I...

THE COURT: Uh, right, unless he can establish. . . did

you tell Judge Keel all that that night and things for him to

make up. .. make his Judicial determination?

A. No, sir.

THE COURT: With that I’ll sustain the objection.

Q. Did you have any contact with GBI Agent Ralph Stone

that night?

A. Early in the morning we did, yes, sir.

Q. All right. Would you tell me when you first had any

contact with him at all?

A. First contact I had with him was at Morgan’s Shrimp

Dock.

Q. At what time?

A. About daylight.

Q. Well, can you estimate the time for me, please?

App. 51 :

A. No, sir, I sure can’t.

Q. Would it have been closer to 5:30 or 7:30?

MR. CHENEY: Your Honor, I think he’s answered the

question, that he cannot estimate the time he stated. . .

THE COURT: If he doesn’t know, he doesn’t know. |

sustain the objection.

Q. Daylight on the 14th of March, is that correct, sir?

A. At about daylight, yes, sir.

Q. Well, does that mean that daylight ensued shortly after

you had contact with him, or shortly before it, sir?

A. Shortly after it.

Q. And what was the reason for you having any contact

with GBI Agent Stone?

A. To give him what information we had and. .. that I had.

Q. What information did you give him?

A. Told him partly about what we had seen.

Q. Uh, would you tell me in detail what information you

gave GBI Agent Stone?

A. At this time I don’t really remember exactly what all |

did tell him, at that point.

Q. So you’re unable to say anything about what you. . .you

gave to GBI Agent Ralph Stone.

A. Right.

Q. At Morgan’s Dock.

A. Right.

Q. Okay. Do you remember how long any conversation you

had with him lasted?

A. No, sir, I don’t.

Q. All right. After you had talked with him, and given him

what you had, did he give you any information?

A. Yes, sir.

Q. What did he tell you?

A. He give me the affidavit, the statement from Don Drake

App. 52

that you see on the search warrant.

Q. He gave you what, sir?

A. The statement you see on the search warrant from Don

Drake.

Q. All right. Did he just hand it to you?

A. No, sir, we read over it.

Q. Who read it over?

A. Mr. Cheney.

Q. Mr. Cheney was there also?

A. Myself. Yeah.

Q. Was there anybody else there?

A. There was several people but I think we was the only

ones that was reading it together then.

Q. Now, you and Mr. Cheney and GBI Agent Stone met

there and you gave GBI Agent Stone what you had and he gave

you a...a statement of what purported to be from Don Michael

Drake and you read it over, is that correct?

A. That’s correct.

Q. Did anything else transpire in that meeting?

A. No, sir.

Q. Had anything been searched at that time?

A. No, sir.

Q. And do you know of your knowledge or from hearsay

even, how they came to get a statement from Donald Michael

Drake?

A. No, sir. When I got there he had the statement.

Q. Okay. Did you see Donald Michael Drake there?

A. Yes, sir.

Q. Where was he?

A. He was in the car with Ralph Stone.

Q. In the car with what?

A. Ralph Stone.

Q. Ralph Stone?

App. 53

A. Yes, sir.

Q. What does that mean?

A. That’s GBI Agent Stone.

Q. Oh. Okay. When you had concluded reading a statement

over, what, if anything, did you do?

A. Myself and Mr. Cheney and his assistant drew up a

search warrant for the Carol J.

Q. Okay. Now let’s go back just a moment to earlier in the

morning, had you had any contact with Deputy Sheriff Miles

Groover?

A. Yes, sir.

Q. And would you tell us when that occurred?

A. Probably about 11:00 o’clock, a little after.

Q. 11:00 p.m.?

A. Yes, sir.

Q. And what was your occasion for being in contact

with him?

A. Had radio contact with him.

Q. What was the substance of that radio contact?

A. To ask him would he come down to Midway.

Q. Okay. Did he come?

A. Yeah.

Q. After your call? And did he. . .you. . .he got there about

11:00 o’clock, is that correct?

A. Between 11:00 and 11:30.

Q. And was anyone with him?

A. Not to my knowledge, no, sir.

Q. Okay. Now, when he arrived, what transpired?

A. He met with another Deputy Sheriff. Stagmeier.

Q. Did he meet with you?

A. No, sir.

Q. Okay. But you saw him there, is that correct?

A. No, I had radio contact with him is all I had at that time.

App. 54

Q. Okay. And where did he meet with Deputy Sheriff

Stagmeier?

A. That I’m not really sure. I think maybe down at the

Amoco Station.

Q. And do you know what his purpose for coming to meet

you was?

A. Yes, sir, in case we needed any help.

Q. And did you give him any instructions or did the two of

you agree upon any course of action that Deputy Sheriff

Groover would take once he got down there?

A. No, sir, not once he got down there.

Q. Had you agreed previously to what he would do?

A. Yes, sir.

Q. What was your agreement about then?

A. If we needed any vehicles checked he would check ‘em

for us.

Q. You were planning on checking on some vehicles when

you called him, is that correct?

A. Yes, sir.

Q. Based upon the fact that there was a woman at the

warehouse at 9:00 o’clock at night.

A. No, sir, not then.

Q. What was it based upon?

MR. CHENEY: Your Honor, objection again. Now

he’s gotten away again from anything that might be in the

affidavit.

THE COURT: I sustain the objection unless he’s referring

we...

MR. GROOVER: Your Honor, this is directly connect-

ed with the affidavit that goes to the stopping of what they

used to try and prop up the statement of Don Michael

Drake. The stopping of the vehicle. .

MR. CHENEY: Well if he’s going to ask questions about

App. 55

the stopping of the truck, fine, but not about any vehicle

that was stopped or any vehicle that was checked.

THE COURT: Only those that are referred to in either the

statement or the affidavit would be relevant. Now that’s the

ruling of the Court.

Q. All right, once you got Deputy Sheriff Miles Groover

to the scene, he and of. . . Office Stagmeier had met, what to

your knowledge did they do?

A. When they met I dont’t know what they done.

Q. Well, from that point on, do you know of any course of

action that Deputy Sheriff Miles Groover took?

A. Yes, sir, he stopped the truck. Couple of‘em.

Q. Stopped what truck?

A. He stopped the Ford truck and then he stopped the Ford

van truck.

Q. What kind of Ford truck was it that he stopped?

MR. CHENEY: Objection, Your Honor, that’s not re-

ferred to in the affidavit, it has nothing to do. . .

THE COURT: It’s not in it, I sustain the objection.

MR. GROOVER: (Pause) There is a Ford truck referred

to in the affidavit, Your Honor.

MR. CHENEY: It’s a Ford van truck, Your Honor.

MR. GROOVER: No, it’s a white Ford truck.

THE COURT: All right, as to that one you can testify

about it.

MR. CHENEY: Okay.

A. He stopped a white Ford van truck.

Q. Did you witness this?

A. No, sir.

Q. How did you find out about it?

A. Had radio contact.

Q. With who?

A. With Miles Groover.

App. 56

Q. You talked with him directly yourself?

A. Yes, sir.

Q. What, if anything, did he tell you about it?

A. He told me there was five subjects in the truck.

Q. Is that all?

A. At that point, yes, sir.

Q. All right. Did he talk with you any further about it...

A. Not...

Q.... that night?

A... .no, sir, not that night. I didn’t see him anymore.

Q. So that was all you knew.

A. Right.

Q. Now, what time did you first get in touch with Judge

Keel, or did you? Did Mr. Cheney do that?

A. I’m not sure if he did or not, I don’t know who called

the Judge.

Q. How did you come to go to Judge Keel?

A. Deputy Sheriff Smiley sent for me and I went down to

the Morgan’s Dock. And Judge Keel was there.

©. Judge Keel came down to the dock.

A. Yes, Sir.

Q. At Deputy Sheriff Smiley’s request.

A. Right.

Q. Okay. And what transpired between you and, uh, Judge

Keel once you got down there?

A. Okay, we had our search warrant drawed up, and we

showed it to him, he read it and he signed it for us.

Q. Okay. Was that all that transpired?

A. Yes, sir. At that point.

MR. GROOVER: May I have just a moment, Your

Honor?

THE COURT: Yes, sir.

App. 57

Q. Did you fill the information on the search warrant in

yourself?

A. No, sir.

Q. Who filled that in?

A. Mr. Cheney.

Q. Were you standing there when. . .when Judge Keel was

reviewing these papers?

A. Yes, sir.

Q. Were you ever placed under oath?

A. Yes, sir.

Q. When was that? After he’d read the statement?

A. Before.

Q. And was Judge Keel paid anything to your knowledge

for the issuance of the search warrant?

A. To my knowledge, no, sir.

Q. He. . .he simply, uh, swore you in, as you previously

stated, and did any. . .any conversation pass?

A. Yes, sir, we reveiwed it, went over the search warrant

together, both of us.

Q. All right. And you told him that what was in the af-

fidavit was true to your knowledge.

A. Right.

Q. And that was all that took place before he signed it.

A. Yes, sir.

Q. Did GBI Agent Ralph Stone say anything to you when

he gave you the statement, Officer Dasher?

A. Yes, sir.

Q. What?

App. 58

A. He told me that he had a witness and give him him a

volunteer statement.

Q. Is that all?

A. To the best of my knowledge, yes, sir.

Q. Now, did you at ever... at. . .at any time see anything

in the course of the night other than bales wrapped up in

‘krocker’ sacks?

A. Well, I...

MR. CHENEY: Wait a minute, Your Honor, that does

not relate to the boat itself. New that relates to what he

saw on the boat, fine...

THE COURT: Right.

MR. CHENEY: . . . it’s relating to something else. . .

THE COURT: If. . .if it’s directed to. . .to that then I'll

overrule it. If it’s linked to what’s on the boat I overrule the

objetion.

Q. Other than what is in your affi. . .affidavit for this search

warrant, Office Dasher, did you see any other. . . other, uh,

activities or observe anything to lead you to believe to the

truth of it? Of the affidavit.

A. Would you repeat that, please?

Q. Yes, sir. Other than what you have described in this

affidavit, did you see anything that would lead you to believe

that it was true and correct?

A. Did I see?

Q. Yes.

A. No, sir, not personally.

Q. Did Deputy Sheriff Groover describe his stopping of this

truck to you?

A. Yes, sir, later on.

Q. After the search warrants were issued?

A. I’m not sure whether it was before or after.

Q. Would you. . .would you tell me what he described to

you, please?

App. 59

A. He described there was two people in the truck. In the

front of the truck. Then he went to the back of the truck and

the man voluntarily opened the back door of the truck and he

said there was several other people in there.

Q. Okay. Was there anything else that he described to you?

A. Except that he got three guns out of the back of the

truck. Hand guns.

Q. Is that all?

A. Yes, sir. No, sir, I take it back. They got some marijuana

seeds and some burlap scraps I think.

Q. Okay. Do you know what those seeds totaled in weight

Ae

A. No, sir, I don’t.

Q. That wasn’t measured, to your knowledge?

A. It was sent to the Crime Lab, yes, sir.

MR. GROOVER: That’s all we have of this witness.

THE COURT: All right, you may cross examine if you

have any questions.

CROSS EXAMINATION BY MR. CHENEY

Q. John, prior to the time that, uh, you signed the affi-

davit for this search warrant, had you been aware. . .made a-

ware that, uh, the truck had been stopped? The big van, the

white van.

A. Yes, sir.

Q. Aware of how many people were in the truck?

A. Yes, sir.

Q. And that some weapons were found in the back.

A. Yes, sir.

Q. And were made aware that there had been both burlap

and marijuana scraps found in the truck that was searched?

A. Yes, sir.

App. 60

Q. Okay. And that information had been given to you

prior to the time that you signed the affidavit for the search

warrant?

A. Yes, sir, I’m pretty sure.

Q. And. . .well now it’s contained. . .did you read the affi-

davit to the search warrant prior to the time you signed it?

A. Yes, sir.

Q. Okay. (Pause) Is this the affidavit that you signed?

A. (Witness examines same) Yes, sir.

Q. Okay. Did you look at that af. . .now did you. . .you in-

dicated that you did not personally write out what was on that

affidavit.

A. Right.

Q. Did you. . .did someone go over it with you, and did

you read that affidavit before you signed it?

A. Yes, sir.

Q. And were you at that time sure that what was on there

was correct?

A. Yes, sir.

Q. And does that affidavit contain the information about

the marijuana seeds, or marijuana scraps and burlap being found

in the truck?

A. Yes, sir.

Q. All right. Therefore you were informed of that fact

prior to the time.

A. Right.

Q. And was this by law enforcement officers that inform-

ed you of that?

A. Yes, sir.

Q. Who was it?

A. Miles Groover.

Q. Okay.

A. And Deputy Sheriff Stagmeier.

App. 61

Q. Thank you, sir. Did you go over in detail the statement

that had been given by Don Michael Drake?

A. Yes, sir.

Q. Ralph Stone do that with you?

A. Yes, sir.

Q. And did you read it thoroughly?

A. Yes, sir.

Q. Were you aware of what it said in there?

A. Right.

Q. And after you had read that statement, uh, were you of

the opinion that they had off-loaded marijuana off the boat?

A. Yes, sir.

Q. Okay.

MR. CHENEY: No more questions of this witness.

THE COURT: All right. Anything further on re-direct?

MR. GROOVER: Yes, Your Honor.

RE-DIRECT EXAMINATION BY MR. GROOVLR

Q. Did. . .to your knowledge, Deputy Sheriff Groover have

any particular reason for stopping that truck?

A. Yes, sir.

Q. What was that?

A. I asked him to check it.

Q. You ask him to check every truck that came up and

down the road?

A. No, sir.

Q. Why did you ask him to check that truck?

A. We had reason to believe that it had been hauling mari-

juana that night.

Q. Where did your reason come from?

MR. CHENEY: Objection, Your Honor, that goes again

App. 62

now to the search of the truck and not what was found

in it.

MR. GROOVER: Your Honor, the search of the truck

is a viable part of the affidavit.

MR. CHENEY: What was found in the truck, Your

Honor.

MR. GROOVER: It was used to prop. . .

MR. CHENEY: Not the search. . .

MR. GROOVER: Used...

MR. CHENEY: . . .but what was found in it.

MR. GROOVER: . . . it was discussed thoroughly and

used to prop up the statement of Donald Michael Drake.

THE COURT: All right. The Court is going to overrule

the objection.

All right, sir. Re-state your question to him.

MR. GROOVER: Would you read it back to him, please?

COURT REPORTER: I'll play it back for you.

Q. I think it was why you had reason to stop that particu-

lar truck. Where did the reasons. . .

A. No, that...

THE COURT: Yeah, he. . . I believe that was his testi-

mony, he had reason to believe that it had been hauling mari-

juana.

Q. Where did the...

THE COURT: Reason come from. . .

Q... .reason come from?

THE COURT... .that was your question.

A. We seen it. .. what appeared to be marijuana being off-

loaded of the truck.

Q. All right. And where was that, sir?

A. At the warehouse, Coastal Sign Company.

Q. All right, sir, and was that from 60 yards across the

street at night?

App. 63

A. Yes, sir.

Q. And were all the bales that you saw wrapped up?

A. Yes, sir.

Q. And to your knowledge is there anything else in the

County that’s baled up, loaded and unleaded on conveyances

in warehouses?

A. Not at 1:00 o’clock at night.

Q. Well you said this was at 8:30 or 9:00, didn’t you?

A. No, sir, I never did say.

Q. Well, why don’t you say now.

A. It was approximately about 1:00 o’clock.

Q. And would you tell me what your observations were

about that? What did you see in the way of off-loading bales

specifically?

A. Seen what appeared to be bales of marijuana being

off-loaded from the truck into the warehouse.

Q. But you didn’t know they were bales of marijuana, did

you?

A. No, sir.

Q. All you saw were bales being unloaded.

A. What appeared to be bales, right.

Q. And that’s why. . .that’s why Deputy Sheriff Groover

Stopped that truck.

A. Yes, sir.

Q. To your knowledge. (Pause) Was there anything between

where you were sitting on the bank of the ditch and where the

truck was that you saw these bales you say being off-loaded?

A. Yes, sir.

Q. What was that?

A. There was a little building there. Also a truck.

Q. There was a little building and what?

A. A truck.

Q. What kind of truck?

App. 64

A. Tractor trailer truck.

Q. And it. . .this building and this truck. . .tractor trailer

were between you and where the truck was being unloaded

that you say you saw?

A. Time to time, yes, sir.

Q. Did you move around to any other spots?

A. Yes, sir.

Q. Where was that?

A. Same side of the road, just fluctuating from one end to

the other.

Q. Okay. And you were never any closer than 60 yards

away, is that correct, sir?

A. At that time, no, sir.

Q. Were you closer than that at any other time?

A. Yes, sir.

Q. When was that?

A. Earlier and later.

Q. All right. Will you tell me about your. . .what occurred

when you got closer earlier and later than that?

MR. CHENEY: Your Honor, if it does not relate to the

. .to seeing the bales of marijuana off-loaded from the

truck, the State will object to it. I don’t think, uh,. . .

THE COURT: Does it relate to that?

A. No, sir.

THE COURT: All right, I sustain the objection.

Q. Mr. Dasher, at the time you saw bales being unloaded

from a truck to a warehouse at 1:00 o’clock in the morning,

you were 60 yards away, is that correct, sir?

A. Approximately, yes, sir.

Q. And it was night.

A. Yes, sir.

Q. And it was foggy out, and the bales were wrapped, is

that correct, sir?

App. 65

A. Right.

MR. GROOVER: That’s all I have, Your Honor.

THE COURT: All right. Any. . .anything further on re-

cross?

MR. CHENEY: Yes, sir.

RE-CROSS EXAMINATION BY MR. CHENEY

Q. From where in view of your position across the road,

did you have a clear view of the back of the truck, what was

being taken off the truck into the warehouse?

A. Yes, Sir. .

Q. Were the lights on at the metal warehouse at this time?

A. Yes, sir.

Q. There were some lights on out in that area that you

could see by?

A. Right.

Q. Were you hampered by any type of dense fog where

you couldn’t see across the road?

A. No, sir.

Q. Could you see clearly across the road?

A. Yes. sir.

Q. Had you had any experience before with. . .with large

quantities of marijuana that had been brought in or found in

this County?

A. Yes, sir.

Q. Do you know what a bale of marijuana generally looks

like?

A. Yes, sir.

Q. All the marijuana that you have seen in the past has

been found out on the Coast and. . .and in different areas,

had it all been, uh,. . .appear to be the same as far as the manner

in which it’s baled?

App. 66

A. Yes, sir.

Q. Using burlap.

A. Right.

Q. All right, did you observe the bales that were being

taken off that truck?

A. Yes, sir.

Q. And were those bale. . .those bales identical to the bales

of marijuana that you had seen before in various operations be-

fore?

A. Yes, sir.

Q. Did you believe at that time that is was marijuana, or

pecans that were being off-loaded?

A. Marijuana.

Q. Okay. And this was based on you experience in what

you had seen in the past.

A. Yes, sir.

Q. And what you saw that night.

A. Right.

Q. And the type of operation that was going on, and the,

uh, . . .the, uh, time of night it was, and in the manner in

which it was being conducted, all of that went together to

make you believe that you knew...

RE-RE-DIRECT EXAMINATION BY MR. GROOVER

Q. You stated to Mr. Cheney that you had experience with

burlap bales before, have you ever seen cotton wrapped in

burlap?

A. No, sir.

Q. Never had that experience.

A. No, sir.

Q. Do you know what it’s wrapped in?

A. No, sir.

App. 67

Q. And your observations of this off-loading were at a time

when a tractor trailer truck and a small building were directly

between you and where you were observing.

A. Not directly, no, sir.

Q. Well, they were at some part in the way of your line of

vision, weren’t they?

A. Yes, sir.

THE COURT: All right, you. . .

Q. Did you ever cross the road and get any closer than from

across the road?

A. Not at that point, no, sir.

THE COURT: All right, you can step down.

App. 68