Petition — Ledesma v. Georgia

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ALEXANDER L. STEVAS.

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1983

MIRIAM BILLINGS LEDESMA,

Petitioner

Vv.

STATE OF GEORGIA

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

QUESTIONS PRESENTED

1) Whether OCGA 16-14-7(f) facially

violates the Fourth and Fourteenth

Amendments to the United States Consti-

tution because it delegates to the police

officers executing a search warrant

unbridled discretion to search for and

seize anything they choose to seize

and whether there exists any exception

to the Fourth and Fourteenth Amendments

that authorizes the seizure of personal

papers without a specific warrant or

probable cause.

2) When evidence is seized pursuant

to. search warrants and where the issuing

magistrate testifies that all the search

warrants were based upon the wiretaps,

alleged to be illegal, does the Fourth

Amendment require that the validity of

the wiretaps be established.

3) Whether the Petitioner was denied a

full and fair opportunity to litigate

her Fourth Amendment claims by allowing

the state to forego its burden of proof

on the searches and seizures, by not

requiring the state to make the search

warrants and the supporting documentation

part of the record and by invoking:

the theory of collaterol estoppel even

though a previous hearing on the Septem-

ber 14, 1982 search was in a different

case, involved only one defendant and

did not establish or even mention how

the items admitted here were seized.

4) Whether the Fourth and Fifth

Amendments permit, through anv good faith

exception or otherwise, a search sub-

sequent to a warrantless arrest that

ts based only upon a teletype saying the

defendant was “wanted” for questioning

iii

where the arresting police knew there

was no warrant, no pending charges, nor

probable cause to arrest, and whether

the subsequent search was legal.

TABLE OF CONTENTS

Questions Presented i

Table of Contents iii

Table of Authorities Vv

Opinions Below 2

Jurisdiction 2

Constitu’ ional and Statutory

Provisions 3

Statement of the Case 5

Reasons for Allowing the Writ

I. The decision below, upholding

general searches and seizures involving

numerous “private papers” conflicts with

decisions of the court and the facial

attack on the Georgia Statute is an

important question of constitutional law

which has not been but should be settled

by this court. 24

II. The decision of the court below

in failing to suppress evidence seized

from all the search warrants in this case

which were all based on admittedly illegal

Wiretaps is in conflict with the decisions

of this court and the Fourth Amendment

and so far departs from the usual course

of judicial proceedings as to call for

an exercise of this courts' discretion.

III. This court should grant certiorari

to ensure that lower courts follow the

mandates of the decisions of this court

regarding the state's duty to provide

full and fair opportunity to litigate

Fourth Amendment claims. 39

IV. This Court should grant certiorari

to resolve conflicts with the lower

courts that continue to erode the Fourth

and Fifth Amendments’ proscription against

warrantless arrests and seizures.

Conclusion 64

Appendix A la

Appendix B 22a

Certificate of service

“

‘Wigs "Sar

TABLE OF AUTHORITIES

Cases - Page

Almeida-Sanchez v. United

States, 413 U.S. 266 (1973) 27

Arkansas v. Sanders, 442 .

U.5. 753 (1976) 61,63

Batton v. Griffin, 240

Ga. 450 (1978) 52,53,54

Bearden v. State, 223

Ga. 380 (1967) 54

Beck v. Ohio, 379 U.S.

S91 (1964) 55

Belton v. New York, 453

U.s. 454 (1981) 59,60

Bergen v. New York, 388

U.S. 41 (1967 37

Ber v. State, 163 Ga. App.

(1982) 56

Bland v. State, 141 Ga. App.

858 (1977) 43

Brookhart v. Janis, 384

U.S. 1 (1966) 42

Camara v. Municipal Court

387 U.S. 523 tis 78} 27

Carroll v. United States,

267 U.S. 132, (1925) 28,29

vii

Chimel v. California, 395

U.S. 752 (1969) 59

Collins v. United States,

F t xr. 1963) 52,54

. Cook v. State, 134 Ga. App.

712 (1575) 34

Coolicje v. New Hampshire,

403 U.S. 462 (19 ) 28

Cox v. State, 152 Ga. App.

453 (1979) 36

Dunkam v. State, 138 Ga.

App. 321 (1976) 62

Durden v. State, 250 Ga.

50,55

Good v. State, 127 Ga. App.

775 (1972) 51

Gray v. State, 145 Ga. App.

LE (1978) 40

Gurelski v. United States,

405 F2d 253 (5th Cir. 1968) 33

Harlow v. Fitzgerald, 102 :

S.Ct. 2727 (ESBS) 57,58

Holt v. State, 2 Ga. App.

Ierardi v. Gunter, 528

st r. 1976) 54

viii

Johnson v. State, 111 Ga.

App. 298 (1965) 34

Ker v. California, 374

U.S. 23 (1963) 33,50

Kremen v. United States,

353 U.S. 346 (1957) 32

Kirkland v. Preston, 385

F2d 670 (D.c. Cir. 1967) 52

Ledesma v. State, 251 Ga.

(1983) #39691 (9/7/83) 40

Ledford v. State, 89 Ga. |

App. 683 (1964) 43

Lisky v. State, 156 Ga.

App. 45 (1980) 43

Marron v. United States,

275 U.S. 192 (1927) 25,27,34

People v. Plevy, 417 N.E.

rr 5i8 (N.Y. 1980) 41

Pointer v. Texas, 380 U.S.

400 (1964) 42

Preston v. New York, 376

Staples v. United States,

350 F2d 817 (5th Cir. 1963) 52,53

State v. Darabis, 159 Ga.

App. 121 (1981) 63

State v. Ludvicek, 147 Ga.

State v. Tooney, 134 Ga.

App. 343 T1975)

Stone v. Powell, 428 U.S.

Terie v. Ohio, 392 U.S.

Townsend v. Sain, 372 U.S.

United v. Bloomfield, 594

th Cir. 1979)

United States v. Ford, 550

F2d 732 (2nd Cir. 1977)

aff'd 436 U.S. 340 (1978

United States v. Garcia,

F t r. 1982)

United States v. Kleefield,

. Supp. -D. N.Y)

1967)

United States v. Nelson,

- Supp -D. Tex. 1980)

United States v. Ross,

. . , . t.

2157 (1582)

United States v. Staller,

t r. 1980)

United States v. Shaefer,

63?) Fed 200 (3rd Cir. 1980)

United States v. White,

United States v. Williams,

F th Cir. 1980)

Waller v. Georgia, U.S.

Case No. 83 - 321, cert.

granted 11/7/83

Warden v. Hayden, 387 U.S.

Western Business Systems v.

““Siaton, 492 F. Supp. 513

(N.D. Ga 1980)

Whiteley v. Warden, 401 U.S.

560 LoTiy

Wisconsin v. Hughes, 229

N.W. 2d 655 (iis. 1978)

Wood v. Strickland, 420 U.S.

Hong Sung v. United States,

56,57,63

26,64

48,49,56

Constitutional and

Statutory Provisions Page

FOURTH AMENDMENT 3,26,31,35,39,64

FIFTH AMENDMENT 3

SIXTH AMENDMENT 4

FOURTEENTH AMENDMENT 4

OCGA 17-13-11 et seq. 51

OCGA 17-13-34 (GCA 14-414) 47

OCGA 16-11-60 (GCA 26-3000) 38,54

OCGA 16-11-64 (GCA 26-3004) 37

OCGA 16-14-7(f) 5

OCGA 17-5-30 (GCA 27-313) 41

OCGA 24-9-64 (GCA 38-1705) 43

Mascolo, Specificity requirements

for warrants Under the Fourth

Amendment: Defining the Zone

of Privacy, 73 Dick. L. Rev.

1, 5-6 (1968) 25

18 U.S.C. 2510 et seq. 38

18 U.S.C. 2510-2520 38

;

”.

IN THE SUPREME COURT

OF THE UNITED STATES

October term, 1983

No.

MIRIAM BILLINGS LEDESMA,

Petitioner

Vv.

STATE OF GEORGIA,

Respondent

PETITION FOR A WRIT OF CERTIURARI

TO THE

SUPREME COURT OF GEORGIA

Petitioner respectfully prays that a

Writ of Certiorari issue to review the

judgment and opinion of the Supreme Court

of Georgia ‘entered on January 5, 1984,

affirmingthe Petitioner's conviction for

conspiracy to sell cocaine.

OPINIONS BELOW

The Petitioner and her co-defendant

were convicted by a jury on February ll,

1983 and sentenced to ten years in the

penitentiary for conspiracy to violate

Schedule II (cocaine) of the Georgia

Controlled Substances Act (R 151, T 42)*.

The decision of the Supreme Court of

Georgia affirming their conviction was

entered on January 5, 1984 and is set

forth in Appendix A. The decision is

reported at 252 Ga. _—_—_—sC« (1984).

Petitioner Ledesma's Motion for Rehearing

was dismissed and is set forth in

Appendix B and is unreported.

JURISDICTION

The judgment of the Supreme Court of

Georgia, affirming the conviction was

Me 2 Pte

px 4 4 ee a) wns Hae Pie ay, al

entered on January 5, 1984. Juris-

diction ‘is: invoked under 28 U.S.C.

1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The Fourth Amendment to the United

States Constitution provides:

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 issued, but upon

probable cause, supported by Oath or

affirmation, and particularly describing

the place to be searched, and the persons

or things to be seized.

The Fifth Amendment to the United

States Constitution provides:

No person shall be held to answer for

a capital, or otherwise infamous crime,

unless on a presentment or indictment of

a Grand Jury, except in crises arising in

the land or naval forces, or in the

Militia, when in actual service in time

of War or public danger; nor shall any

~ References to the record are referred

to as (R); the trial transcript as (T);

the motions hearings as (M); and the

reports Motion to Suppress hearing as (MT).

persons be subject for the same offense

to be twice put in jeopardy of life or

limb; nor shall be compelled in any

criminal case to be a witness against

himself, nor be deprived of life,

liberty, or property, without due

process of law; nor shall private

property be taken for public use, with-

out just compensation.

The Sixth Amendment to the United

States Constitution provides:

In all criminal prosecution, the

accused shall enjoy the right to

speedy and public trial, by an impartial

jury of the State and district wherein

the crime shall have been committed,

which district shall have been

previously ascertained by law, and to

be informed of the nature and vause of

the accusation; to be confronted with

the witnesses against him; to have com-

pulsory process for obtaining witnesses

against him; to have compulsory process

for obtaining witnesses in his favor,

and to have the Assistaice of Counsel

for his defense.

The Fourteenth Amendment to the

United States Constitution provides, in

relevant part:

Section 1. Ali persons born or

naturalized in the United States, and

subject to the jurisdiction thereof, are

citizens of the United States and of the

State wherein they reside. No State

shall make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any State deprive any person of life,

liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal

protection of the laws.

OCGA 16-14-7(f) provides:

Seizure may be effected by a law en-

forcement officer authorized to enforce

the penal laws of this state prior to

the filing of the complaint and without a

writ of seizure if the seizure is incident

to lawful arrest, search, or inspection

and the officer has probable cause to

believe the property is subject to for-

feiture and will be lost or destroyed if

not seized. Within ten days of the date

of seizure, the seizure shall be reported

by the officer to the district attorney

of the circuit in which the seizure

is effected; and the district attorney

shall, within 30 days of receiving

notice of seizure, file a complaint for

forfeiture. The complaint shall state,

in addition to the information required

in subsection (e) of this Code section,

the date and place of seizure.

STATEMENT OF THE CASE

After conviction by a jury on

February 11, 1983 the Petitioner was

sentenced to ten years in the penitentiary

for conspiracy to violate Schedule II

of the Georgia Controlled Substances Act

(R-151,T-42).* The indictment charged

that five people, including the Petition-

er “did unlawfully conspire to violate

ScheduleII of the Georgia Controlled

Substances Act by joining among them-

selves and others to sell cocaine and

certain members of such conspiracy did

sell cocaine in violation of Schedule II

of the Georgia Controlled Substances Act”

(R-3). The indictment alleged the con-

spiracy took place between June 22, 1982

and October 22, 1982 (R-3). z

This case involves four separate

search and seizures as well as a series

*References to the record are referred

to as (R); the trial transcript as (T);

the motions hearings as (M); and the

separate Motion to Suppress transcript

as (MT)

of challenged wiretaps. As a result

of a search of Ledesma's person and

automobile on September 14, 1982 the

State obtained and introduced at trial

as S-17,18 and 19 a calculator, a

tape with figures on it and a list of

names of persons that Ledesma allegedly

sold drugs to (T-152, 153). The

Petitioners filed a pre-trial motion to

suppress (R-63) and a Motion to Adopt the

Motions of Co-defendants (R-63,125).

This search had been the subject of a

prior motion to suppress in another case

involving Defendant Ledesma(M-34). The

court refused to make the State put on any

evidence or otherwise prove the legality

of the search, instead allowing into

evidence the transcript of the previous

hearing (M-41). The Petitioners objected

on the grounds that the prior case did not

establish the law of this case and that it

denied them their rights of confrontation

and counsel of choice (M-41). Moreover

the prior case did not even mention the

calculator, tape or drug ledger.

Although the State entered the tran-

script of the earlier hearing, it did not

tender a copy of the teletype nor other

supporting documentation relied upon by

the officers in effecting the arrest.

The evidence showed and the State

conceded that there never was a warrant

in any state for Ledesma at the time of

her arrest on September 14, 1982 (MT-29).

Nor was Ledesma, at the time of her 2

arrest “charged in the courts of a state

with a crime" (MT-29). The trial Court

upheld the arrest because it found the

officers made it in good faith because it

was reasonable to believe that the

1. ee

Defendant was charged in the courts of

another state, and it was reasonable to

believe a warrant had issued (MT-143-146).

On the morning of September 14,1982,

Detective Norton* received a teletype

from St. Louis, Missouri, which he

admitted said only that the defendant was

"wanted" and not that here was an out-

standing warrant (MT-30). The teletype

said:

"Hillsdale Police Department 091482

Attn Det Norton and Det Miller Fulton

County PD Wanted subjects for Hillsdale

PD Auth Sgt Brackney 2269 Pupo

Jesus Cuban Male - Age 43 - DOB 120238

HT 510-wgt 220 Bld Hvy-Skin Drk-Eyes

Bro-Hair Blk-Soc 265218219 R Add 714

Hileah Fl 090582Wnt Fel Violation Mo

Controiled Substance Law Sal

~ *fhree officers participated in this

case: Detectives Norton and Miller of

Fulton County and Officer Hernandez of the

Atlanta Police Department. Although

Norton denied any one of the three was in

sharge of this case (MT-47), Norton was ~°

the senior officer (MT-127). Furthermore,

Miller thought Norton to be in charge

RS 195020 413040 3599 Alias Jesus

Pupo Mesa OCA 82-566 061582 Ledesma

Miriam Age 37-DOB 090643-POB Atlanta

Ga HT 502-Wgt 1400Bld Hvy-Skin Med-

Eyes Bro-Hair Blk SOC 257682131-R Add

4031 Eisteria Lane Atlanta 052980

Alias Mildred Edmonds Miriam Billings

Miriam Ann Billings Wnt Fel Violation

Mo Controlled Substance Law Sale OCA

82-566 061582 RS 195020 413040 3599

Oper Gordon EOMR"

Norton said he was expecting the

teletype »ecause "On the day before, I

received a telephone call from Sgt.

Brackney, St. Louis County, I believe,

advising that they were issuing warrants

for her. I advised him to either send 1s

a warrant or teletype confirming that.”

(MT-32). All the officers who testified

had been involved in a three and one-half

month investigation involving the

Defendant (MT-88). Although Norton said

he was expecting the teletype, Norton

did not know any details of the charges

and only that it was for some drug

violation (MT-55). Officer Hernandez

thought it had something to do with

missing persons (MT-97). After Norton

received the teletype, neither he, nor

his fellow officers, made any attempt

to call St. Louis County officials nor

did they make any attempt to ver’ fy or

check the teletype (MT-39). Although

he got the teletype at 8:30 or 9:00 a.m.

on September 14, he did not make any

attempt to pick up the Defendant until

6:30 or 7:00 p.m. (MT-52). Norton

admitted he was never told warrants

were issued for the Defendant (MT-6).

In fact, he called St. Louis County after

the arrest, and the officials there

still did not tell him there was

a warrant (MT-60).

Brackney, called by the defense,

specifically stated that he never had a

warrant and never told any law enforce-

ment agency or any of the officers here

involved that he had a warrant (MT-102).

He stated he told Norton on September 14,

1982, that he had a "wanted." (MT-103).

Norton denied having any conversations

with Brackney on September 14, 1982.

When asked "Did you tell him (Norton)

that you had a warrant on the 13th or

14th," Brackney responded, "No." (MT-116).

Brackney stated that the purpose of the

wanted was so that Ledesma could be picked

up in Atlanta and he could come down

and talk with her (MT-115). In fact he

did come to Atlanta on either the 15th

or 16th of September, but Ledesma decided

not to talk so he never obtained a warrant

(MT-106,112,113). In fact, Brackney had

driven to Atlanta previously when told by

these same officers that Ledesma would

be xe

give a statement (MT-104). But Ledesma

refused then, on August 30, 1982, to give

Brackney a statement (MT-104).

The defense also subpoenaed and called

Mark Miller, from the St. Louis County

prosecutor's office, who testified that

the police department issued a wanted

for the Defendant, explaining:

"Now, basically, we have what's known

as a Hold Twenty in St. Louis County be-

fore a warrant is issued. We really re-

quire that the defendant be arrested and

the police officers talk to them about

the particular charges that are issued.

Then in that twenty hour period, subse-

quent to their arrest, their discussions

with a particular defendant, we reach a

decision whether or not to issue warrants,

arrest warrants, complaints, whatever."

(MT-135).

Miller testified that at the time Ledesma =

was picked up by the Fulton County police

officials that Ledesma was not charged

in the Courts of Missouri (MT-137).

In fact, Miller had expressly made a

decision that a warrant would not issue

‘. eee ORES! ees OP eee Ee ek eS

against this Defendant (MT-134).

Although the teletype had been received

that morning, the officers waited until

approximately 6:30 p.m. to effect Ledesma's

arrest because they had other business

34). The officers went to her resi-

cence but she was not there (MT-34).

! tnen went to her mother's house where

they "passed her at her mother's house

[T-54 of stopping r there,

} one and one- f miles

} ld’ mn Martin Luther King Drive

‘T~ Norton said the first thing

they did was: "We advised her that we

had arrest papers for her." (MT 35).

Norton said they first searched

edesma and placed her in the police car:

"Detective Hernandez, who's a female,

searched her person. Then we placed her

in the car." (MT-40). Hernandez testified:

"We put her hands on the top to the

rear of our unmarked car. I searched her

' and placed her in the back seat of the

unmarked car." (MT-79). Norton said

Ledesma was standing beside the police car F

when she was searched (MT-40, 41).

At the time she was searched, Ledesma was

not trying to run away or get into her car,

Norton said (MT-42). After placing her in

the police car, they then searched her

car (MT-40). Hernandez said that while

she was searching Ledesma, the other

officers were searching the car (MT-80).

Norton did not say at what point he

searched the pocketbook. Norton said he

personally found the gun, but couldn't

remember where he found it. He admitted

the gun had been under the front seat or

‘oe

fe as

in the back seat area (MT~44) . "I just

can't for sure say the front seat is where

ee ee es ee a ee a ae

I'm trying to say it was." (MT-45). The

gun was in a closed black colored pouch

(MT-35). Norton admitted that he couldn't

tell if the pouch had a weapon in it ex-

cept by feeling it: "You could hold it

and feel the weapon.” (MT-45).

Although the car was searched at the

time of Ledesma's arrest, Norton made a

decision to impound the car (MT-36). He

impounded the car because: “They was sev-

eral items in the car that our rules and

regulations, our standard operating pro-

cedures requires that we put those in safe-

keeping when we impound a car." (MT~36).

Norton said the car was impounded pursuant

to a Fulton County Police Department

Standard Operating Procedure (SOP) rule

that says “When we arrest someone on

private property that we impound the

vehicle and take their personal belong- ,

ings into safekeeping” (MT-37). 5.

Norton cited an undated SOP Rule

23.3(D) (1) (dad) stating cars will be towed

on all arrests when: "The driver or

owner of a’vehicle is arrested and has

parked the vehicle on private property:

the arresting officer has the authority

to remove said vehicle for impoundment

and safekeeping." (MT-163). But the

same SOP also states: "If the person

in charge of said vehicle prefers, he

may leave the auto at the scene of the

incident providing it can be parked next

to the curb or out of the roadway in a

manner not creating a hazard to other

traffic." (MT-162).

The trial court ruled that, this

search was a good faith search because it

was done pursuant to an “official policy”

of the police department (MT-144). The

triai court admitted the SOP was conflicting

and contradictory on this point (MT-158).

The trial court also upheld the search

based on evidence not in the record:

"As I say, I don't know where it appears

from this evidence this investigation was

much wider than this one case. I think

the record shows. I'm aware of that. I

don't know what has been said here.

I'm taking into consideration that for

what it's worth.” (MT-158).

Norton sata he ordered the car impounded

but did not ask Ledesma what she wanted

Cone with the car or ask her what wrecker

service she wanted to tow the car (MT~48).

While Norton said he did not check the

vehicle registration to ascertain the

owner (MT-48), he admitted that he knew

the car was registered to the Defendant

end her husband (MT-48, T-56). He also

knew the Defendant had just left her

Tt id See oD + ‘

el ae See De

mother's, knew where her mother lived,

only one and a half miles from the scene

of the arrest (MT-34). Norton answered

yes to the question: "It’s your testimony,

then, that you impounded the vehicle for

only that reason, for the reason you felt

like you had to secure the personal items

and valuables in the car, is that your

testimony?” (MT-49). No where was it

stated where and when the calculator, :

tape, and drug ledger was found. More-

over the ledger & tape were "personal.-papers.

Although the State never used at trial

any of the wiretap evidence, the judge who

issued three separate search warrants ,

testified he relied upon the evidence a

contained in the wiretapsto support the

search warrants (T-259). The decision of /

the Georgia Supreme Court did not even

address this issue. The wiretap

affidavits themselves showed that each

new application rested upon the previous

application (R65,125). The court over-

ruled the motions (T-237,285), specific-

ally finding that the wiretaps were legal

and thus not a basis for suppressing

physical evidence seized as a result of

these searches (T-285). ~This ruling

was limited to the last two wiretaps and

the evidence obtained therefrom (T-285),

as the State advised the court it would

not use any evidence from the first wire-

taps (T-285). The record shows clearly

the state put on no evidence to support

the legality of the first two sets of

wiretaps.

There were three searches which were

the fruits of tr« wiretaps. The first

was the October 24 search of Ledesma 's is

motel room (T-242,250). The second was )

the October 24, 1982 search of Wes Mer

Chemical Company that yielded personal

papers and traces of cocaine (T-244,

336-353). The third search was the

October 25 search of the private residence

of Merritt and his office on Gordon Street

(T-246, 280) that yielded certain docu-

mentary evidence which the State used

in its attempt to link the Petitioners

and Wes Mer Chemical Company (T-280,

S-9-23).

The Petitioners specifically challenged

the sufficiency of the affidavits to sup-

port wiretap authorization and challenged

whether the information was in fact

correct (T-238}. The wiretaps were also

alleged to be illegal in that they were

not properly sealed (T-218). Not only

were they not properly sealed but the

State made copies of the wiretap docu-

ments after they were ordered sealed

and without the permission of the court

(T-225). In fact, there never was a

court order authorizing publication of

the tapes (T-236).

There were search warrants procured

for the three other searches which were

authorized by the issuing judge, which

the state claimedwere issued, pursuant

to OCGA 16-4-17(£) which ostensibly

authorizes general searches for personal

papers (T-259). In fact, personal

papers were seized in each of the three

: searches and were entered into evidence

(T-265,269,270,277,280). The Petitioners

filed pre-trial motions attacking the

constitutionality of the statute

(R-126,127). Even though the case was

not brought under OCGA 16~-14-1 et seq.,

the court overruled the motion (M-72,73) a

and allowed the evidence in at trial

cver objection (T-285,286). These papers

were used to link the Petitioners and

Wes Mer Chemical Company, where traces of

cocaine were found (T-244). The personal

papers included another "drug ledger” an

employment contract, stock certificates |

and calendars with personal notes.

These three searches were conducted

pursuant to warrants, all of which were

challenged (R 63,125) and subsequently

upheld by the trial court (T-242,250,280,

235, 336-353). But the State did not

put into the Record copies of any of

these warrants, nor their accompanying

affidavits or other supporting docu-

mentation.

REASONS FOR ALLOWING THE WRIT

I. THE DECISION BELOW, UPHOLDING ~

GENERAL SEARCHES AND SEIZURES INVOLVING

NUMEROUS “PRIVATE PAPERS" CONFLICTS WITH

DECISIONS OF THE COURT AND THE FACIAL

ATTACK ON THE GEORGIA STATUTE IS AN

IMPORTANT QUESTION OF CONSTITUTIONAL LAW

WHICH HAS NOT BEEN BUT SHOULD BE SETTLED

BY THIS COURT.

The statute under attack delegates to

the police officers executing a search

unbridled discretion to seize any property

he "has probable cause to believe will be

subject to forfeiture and will be lost

or destroyed if not seized." Thus, the

statute not only violates the Fourth

Amendment's specificity and particularity

requirements, it constitutes on imper-

missible delegation of magisterial duty

and function of determining, in advance,

questions of probable cause and setting

out the permissible scope of the evidence

to be seized. ‘

The statute then, authorizes the

executing officer not only to determine

probable cause but to dispense with pre-

search determination of specificity and

particularity. This Court held almost

eight years ago that the warrant must

describe the property to be seized with

sufficient specificity and particularity,

so that nothing is left to the discretion

of the executing officer. Marron v.

United States 275 U.S. 192, 196,

48 S.Ct. 74 (1927). Where the warrant

invites discretion, it fails for lack

of specificity and is classified as

general. See Mascolo, Specificity

requirements for warrants Under the

Fourth Amendment: Defining the Zone

of Privacy, 73 Dick. L. Rev. 1, 5-6

(1968).

This court has already granted

> ee

Certiorari on the exact same issue as

is presented here. See Waller v. Georgia

Case NO. 83 - 321, cert. granted

11/07/83.

The Fourth Amendment was enacted in

reaction to the evils of the general

warrant and outliawed it. Warden v. Hayden, .

387 U.S. 294, 87S. 1642 (1967). The

RICO statute, which Georgia's statute

follows, has been interpreted to author-

ize the seizure of "all items of whatever

nature and no matter how inoffensive, if

it is acquired with racketeering pro-

ceeds...it might be anything from gardening

equipment to cookbcoks." Western Business

fystems v. Slaton, 492 F. Supp. 513

(N.D. Ga. 1980). The Supreme Court has

long held that statutes authorizing arrest

end search on less than a warrant or

vrobable cause are unconstitutional. See

*> {*;

ora),

ty sea

Camara v. Municipal Court, 387 U.S.

523, 528, 87 S.Ct. 1727 (1978). “It is

clear, of course, that no act of Congress

can authorize a violation of the Consti-

tution." Almeida-Sanchez v. United States,

413 U.S. 266, 272, 93 S.Ct. 2535 (1973).

Detentions and searches pursuant to sta-

tutes, but without probable cause and a

warrant, are unconstitutional, and render

the statutes unconstitutional. United

States v. Shaefer, 637 F.2d 200, 204

(3rd Cir. 1980).

Nothing is to be “left to the dis-

cretion of the officer executing the.

warrant." Marron v. United States, 275

U.S. at 196. "When the right of privacy

must reasonably yield to the right of

* search is, as a rule, to be decided by a

judicial officer, not by a policeman or

government enforcement agent." Coolidge

v. New Hampshire, 403 U.S. at 462. Thus

OCGA 16-14-7 (f) unconstitutionally dele-

gates to police officers the judicial

function of determining probable cause and

the scope of the search. "The Fourth

Amendment proscribes all unreasonable

searches and seizures, and it is a

cardinal principal that searches conducted

outside the judicial process without

prior approval (by a judge or magistrate)

are per se unreasonable under the Fourth

Amendment subject only to a few specifi-

cally established and well delineated

exceptions. Carroll v. United States,

267 U.S. 132, 45 S.Ct. 280 (1925).

This case was not prosecuted under the

rIcoO statue and since the state has

foregone prosecution under the RICO

statute it should not be allowed to reap

whatever benefits the statute may

allow had it a right to do what it did

not.

Nor does the evidence seized here fit

within any well-delineated exception to

the rule that searches conducted outrides

the judicial process without prior

approval are per se unreasonable under

the Fourth Amendment. Carroll, supra.

The search here was a general search.

The warrants here authorized a search

for "drugs and drug paraphenalia".

Armed with these warrants the executing

officers embarked on an unconstitutionai

fishing expeditton----As~the

Supreme Court of Georgia found: "These

papers consisted of a ledyer reciting

two drug transactions; two desk calendars

recounting drug transactions and the

name of a drug ccurier; deposit slips

for Wes-Mer Chemical Company found

at Petitioner Merritt's real estate

business; a business license of Wes-Mer

Chemical Company; and an employment

contract between a third party and

Wes-Mer Chemical Company " (Slip Opinion

page 7) (Appendix 16a). All the warrants

claimed the items sought to be seized

were on the person of either Merritt

or Ledesma or in their respective |

offices and Wesley Merritt's home.

‘Among the items seized from the person

of Ms. Ledesma the Oetober 24, 1982

return said "From the pocket book misc.

papers and telephone address books."

From Merritt they seized a "manila

envelope marked Mr. Merritt (misc

papers) (sic)" and "desk calendar (from

the desk of Wesley Merritt)". The

officers read Ledesma's notebook found

in her dcsk (T339).

At trial the district attorney said

"I stipulate that every item... the

officer made the decision whether or

not it was seizable, not Judge

Etheridge." (T276).

The search warrants issued here

were not general warrants on their

face. The things to be discovered

were described with particularity.

The question is whether the search that

was conducted, either under the auspices

of the statute or some other exception

to the Fourth Amendment, was not confined

to its lawful scope and became general.

Had the issuing judg@ been informed of the

true reason for the warrant request and

the scope of the search contemplated,

he might have approved it, subject to

explicit limitations on the scope of

discovery to prevent an overly

intrusive search. But the officers

whether relying on the statutes sweep

or some other exception, disclosed no

such information, arrogating to them-

selves the magisterial function of

setting out the dimensions of the search.

And because this was a general search

everything seized should be suppressed

if the exclusionary rules' deterent

principle is to have any practical

meaning. Cf. Kremen v. United States,

353 U.S. 346, 77 S.Ct. 88 (1957)

It is of course not the rule that

only evidence uncovered during a search

must invariably be described in the

warrant before it may be seized. Where

evidence is uncovered during a search

pursuant to a warrant the threshold

question aust be whether the search was

confined to the warrants’ terms. It

’

may not be a general exploratory search.

Gurelski v. United States, 405 F2d 253,

258 (5th Cir. 1968). As executed here

the warrant became an instrument for

conducting a general search. Under the

circumstances, it was not possible to

identify after the fact the distinct

items of evidence which might have

been discovered had the officers kept

their search within the bounds permitted

by the warrant; and therefore all evi-

dence seized during this search under the

auspices of this statute and warrant

should have been suppressed.

The validity of the scope of the

search depends, generally, upon the

reasonableness of the search in light

of its purpose. Ker v. California,

374 U.S. 23, 33, 83 S.Ct. 1623 (1963).

A search which is initially valid may

violate the Fourth Amendment because of

"its intolerable intensity and scope.”

Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct.

1868 (1968). Accordingly, it has been

held unreasonable to search and seize a

defendant's files. United States v.

Kleefield, 275 F. Supp. 761 (S.D. N.Y.

1967). In Marron v. United States, supra,

the Court held that a “ledger showing

inventories of liquor, receipts, expenses,

including gifts to police officers"

could not be lawfully seized pursuant

to a warrant. The mere fact that the

articles seized are later found to be

incriminating does not validate the

search. Johnson v. State, 111 Ga. App.

298 (1965). “Probable cause cannot be

measured by hindsight." Cook v. State,

134 Ga. App. 712, 716 (1975).

II. THE DECISION OF THE COURT BELOW

IN FAILING TO SUPPRESS EVIDENCE SEIZED

PROM ALL THE SEARCH WARRANTS IN THIS CASE

WHICH WERE ALL BASED ON ADMITTEDLY ILLEGAL

WIRETAPS IS IN CONFLICT WITH THE DECISIONS

OF THIS COURT AND THE FOURTH AMENDMENT

AND SO FAR DEPARTS FROM THE USUAL COURSE

OF JUDICIAL PROCEEDINGS AS TO CALL FOR

AN EXERCISE OF THIS COURTS' DISCRETION.

At trial the state abandoned any attempt

to establish the validity of the first two

of the five sets of wiretaps. (T210) The

trial judge declined to rule on the first

two sets based on the states assertion they

would not introduce these wiretaps into

evidence (T211). But the state also

admitted that the subsequent wiretaps

which were admitted and used were the

fruit of the first two wiretaps (T214).

The Judge who issued the three search

warrants in this case said he relied on

all the wiretaps (which he had in fact

issued) in authorizing the search warrants.

Two of the affidavits in support of the

Bo Es tg ie Oi de oe Oe eel

search warrants signed by the officers

specifically cited the wiretaps to

establish probable cause. Even the

Georgia Supreme Court found that: "It

is not disputed that electronic surveil-

lance was used to gather information

which, in part, established probable

cause for the warrants used to execute

these searches.” (Slip Opinion page 6,

App. 14a). Nevertheless that court

incredibly found that : "As Appellants

concede no wiretaps evidence was ad-

"mitted at trial, we find no error.”

(Slip Opinion page 7, App. l6a).

At the hearing on a motion to suppress

the wiretaps and the fruits of the wire-

taps, the burden of proof is upon the

State. Cox v. State, 152 Ga. App. 453

(1979). The Defendant contends that the

State here did not meet its burden be-

cause it never even attempted to show

the validity of the initial wiretap,

instead abandoning that evidence and

relying on the fruits of the later wire-

taps. But the evidence procured through

the wiretaps that was used at trial

was the fruit of the original wiretaps.

See Wong Sung v. United States, 371 U.S.

471, 83 S.Ct. 407 (1963).

The State violated Section 8 of OCGA

16-11-64 (Ga. Code Ann. 26-3004) in that

the State failed to properly seal the

wiretaps and published them.. The Petition-

ers also attacked all the wiretaps on

the grounds that probable cause was not

shown and the statements contained there-

in were conclusory and pretextual. See

Berger v. New York, 388 U.S. 41, 81 S.Ct.

1873 (1967). To render the wiretaps

legal all the requirements of OCGA

16-11-60 et seg. must be followed.

United States v. White, 401 U.S. 745,

91 S.Ct. 1122 (1971); State v. Tooney,

134 Ga. App. 343 (1975).

Nor did the State make a proper showing

of the necessity before the issuance

of wiretap authorization. See 18 U.S.C.A.

Section 2510 et seg. These federal

statutes must be complied with to render

the wiretaps legal. Cox v. State, 152

Ga. App. 483 (1979). 18 U.S.C. °2510-

2520.

III. THE RULINGS AND HEARINGS ON

THE VARIOUS MOTIONS TO SUPPRESS IN THIS

CASE WERE NEITHER FULL NOR FAIR, AND

STRIPPED THE DEFENDANTS OF THEIR FOURTH

AMENDMENT RIGHTS WITHOUT EVEN A SEMBLANCE

OF DUE PROCESS.

In Stone v. Powell, 428 U.S. 465,

95 S.Ct. 3037 (1977) this court held

that the state must provide state de-

fendants with "an opportunity for full and

fair consideration”... both

at trial and on direct appeal id. 95 S.Ct.

at 3083. Under the standards set forth

in Townsend v. Sain, 372 U.S. 293, 83

S.Ct. 745 (1963) the merits of the

factual dispute were not addressed or

resolved in the trial or appellate court,

the state factual determination is not

supported by the record as a whole and

the fact finding-procedure employed by

the state courts was not adequate to

afford a full and fair hearing.

In Georgia the burden of proof is upon

the state at a Motion to Suppress hearing.

Grey v. State, 145 Ga. App. 293 (1978).

In basing its previous ruling on Ledesma

v. State, #39691 (9/7/83) this Georgia

Supreme Court overlooxed that in the

previous case that it relied upon it

was never established where the calcula-

tor and ledger were found. Nor was the

alleged ledger even referred to in the

previous case. Thus the state failed to

meet its burden of proof as to the ledyver.

Therefore this case must be reversed

on this point alone. Moreover these

issues could not have been and were not

litigated in the previous case. See

Grey v. State, 145 Ga. App. 293 (1978).

The failure to grant the Petitioners

an evidentiary hearing on the Motion to

Suppress was error requiring reversal of

_—_— = aes 1

conviction. OCGA 17-5-30 (Ga. Code Ann.

27-313), providing that after the motion

to suppress has been filed, "(t)he trial

judge shall receive evidence out of the

presence of the jury on any issue of

fact necessary to determine the motion"

(Emphasis supplied). "Failure to hold

this mandatory hearing was error, and the

error was preserved by the appellant's

objection to admission of the evidence

sought to be suppressed." Grey v. State,

145 Ga. App. 293 (1978). It should be

noted that neither in this case nor in the

previous case relied upon by the State

was it ever established where the cal-

culator, tapes and ledger were found.

Collateral Estoppel does not apply here,

as Defendant had a right to relitigate

the same search at a subsequent trial.

People v. Plevy, 417 N.E. 2d 518 (N.Y. a

1980).

The Sixth Amendment provides that

"the accused shall enjoy the right...

to be confronted with the witnesses

against him." Accord, Georgia Constitu-

tion of 1976, Art. I, Sec. I, Par. XI.

This right of confrontation carries with

it the right to cross examine and both are

fundamental rights of the accused binding

upon the State by the Fourteenth Amendment.

Pointer v. Texas, 380 U.S. 400, 85 S.Ct.

1065 (1964). A complete denial of cross-

examination is “constitutional error of

the first magnitude.” Brookhart v. Janis,

384 U.S. 1, 3 86 S.Ct. 1245 (1966).

"The right of cross-examination, thorough

and sifting, shall belong to every party

as to the witnesses called against him.

If several parties to the same case shall

have distinct interest, each may exercise

- 4

. eT LS, ey : / wi

a a. * * ee 7 my SE oS , 290 ant, at

this right." OCGA 24-9-64 (Ga. Code

Ann. 38-1705). Even an undue abridge-

ment, short of a complete denial as is the

case here, is grounds for reversal of

a conviction. Ledford v. State, 89 Ga.

App. 683 (1964); Holt v. State, 2 Ga.

App. 383 (1907).

Moreover the transcript itself is

not sufficient to sustain the State's

burden of proving the search and seizure

was lawful. In Lisky v. State, 156 Ga.

App. 45, 46 (1980), the court reversed

where the State's case rested solely

on oral testimony without supporting

documentation. Here the documentation

was not the warrant or affidavit but

the alleged teletype which was never

entered into evidence in this case and

is not part of the Record. Cf. Bland

v. State, 141 Ga. App. 858 (1977);

"The record before us does not contain

the search warrant or the affidavit

on which it was issued; consequently the

only information contained in the record

is the testimony presented at the hearing

on the motion to suppress. This testimony

did not contain sufficient facts to sus-

tain the State's burden of proof."

As argued infra the warrants and

théir supporting documentation were

celevant in that the Petitioners here

challenged the officers scope of the

execution of the searches and seizures

under the warrant were an unconstitutional

delegation of authority and showed on

their face they were based on illegal

wiretaps. Moreover without even exam-

ining these documents the Supreme Court

of Georgia admitted it upheld the searches

based on the trial courts consideration of

"the search warrant and supporting

affidavits in determining there was

sufficient probable cause to authorize

the searches." (Slip Opinion page 6,

App. 14a).

. Moreover the Supreme Court of Georgia

had absolutely no jurisdiction over this

case and should have transferred it

to the Georgia Court of Appeals as

jurisdiction was conferred upon the

by Article VI, Section II, Paragraph IV

of the 1976 Constitution of the State

of Georgia. The Georgia Supreme Court

did not give any excuse for its violation

of the state constitution.

IV THE SEIZURE OF PETITIONER

LEDESMA'S PERSONAL PAPERS (THE DRUG

LEDGER) DURING HER WARRANTLESS ARREST

ON AN UNRELATED CHARGE VIOLATED THE

FOURTH AMENDMENT PRESCRIPTION AGAINST

UNREASONABLE SEARCHES, WAS THE PRODUCT

OF AN ILLEGAL ARREST, AN ILLEGAL

INVENTORY SEARCH AND AN ILLEGAL WEAPONS

SEARCH.

The September 14, 1982 seizure of

the drug ledger, calculator and tapes,

that were all admitted at trial was

illegal for several reasons besides the

failure of the state to meet its burden

of proof. This evidence was the fruit

of an illegal arrest, an illegal inventory

search and an illegal pat-down search.

Moreover even if the search were legal

the state had no right, as argued in

Division I infra and incorporated herein.

by reference, to seize personal papers :

as the “drug ledger” clearly was. This i

ledger consisted solely of names with .

numbers beside them.

The trial court ruled the teletype veri-

47.

fied the existence of a warrant, the

Supreme Court of Georgia found, contra-

dictory to this, that the arrest was

based on probable cause because the

police had a right to assume a warrant

would follow the teletype. The tele-

type the arresting officers received

did not say there was a warrant, or

that it would be followed by a warrant.

In fact, there was no warrant, nor was

the defendant “charged in the courts of

a state with a crime.” Nor did a war-.

rant ever issue. See OCGA 17-13-34

(Ga. Code Ann. 44-414). The Missouri

officer, who sent the teletype, testi-

fied he was in contact on September 14

with Fulton County officers and he never

teld the Fulton officers there was a war-

rant. The Fulton officers waited over

10 hours after receipt of the teletype

to effect the arrest of the defendant.

48.

When an arrest is made on an alleged

warrant which the officer learned about

in a radio bulleting the arrest is ille-

gal unless there is not only a warrant,

but a warrant supported by probable

cause. Whiteley v. Warden, 401 U.S.

560, 91 S.Ct. 1031 (1971). In Whiteley,

the officer seized the defendant based

on a radio bulleting that there was a

warrant for the defendant. In fact,

there was a warrant, but it was not sup-

ported by vrobable cause. Nevertheless,

the arrest was invalid:

Certainly volice officers called uvon

to aid other officers in executing arrest

warrants are entitled to assume that the

officers requesting aid offered the mag-

istrate the information requisite to sup-

port an independent judicial assessment

of vrobable cause. Where, however, the

contrary turns out to be true, an other-

wise illegal arrest cannot be insulated

from challenge by the decision of the in-

stigating officer to rely on fellow offi-

cers to make the arrest. Whiteley, supra,

401 U.S. at 568.

49.

Here the facts are even more compellina,

because there was no warrant at all; there

was no communication verifying the war-

rant; and, unlike the arresting officer

in Whiteley, the arresting officer here -

did have the time and resources to veri-

fy the warrant.

"The decisions of this court concerning

Fourth Amendment vorobable cause require-

ments before a warrant for either arrest

or search can issue require that the judi-

cial officer issuing such warrant be sup-

plied with sufficient information to suv-

port én independent judgment that prob-

able cause exists for the warrant."

Whiteley, supra, 401 U.S. at 564. In

warrantless arrest, the same standards

apply for reviewing a police officer's

assessment of probable cause: "(L)ess

stringent standards for reviewing the

officer's discretion in effecting a

warrantless arrest and search would

discourage resort to procedures for

obtaining a warrant. Thus the stan-

dards applicable to the factual ba-

sis supporting the officer's prob-

able cause assessment at the time of

the challenged arrest and search are

at least as stringent as the standards

applied with resvect to the magistrate's

assessment. Id. 401 U.S. at 566. In

Ker v. California, 374 U.S. 23, 83

S.Ct. 1623 (1963), the Court held that

the same probable cause standards for

arrests were apvlicable to state ar--

rests. "An arrest and search, legal

under federal law, are legal under state

law.” Durden v. State, 250 Ga. 325,

327 (1982).

The decisions of the courts of Geor-

gia have previously adhered to the

De eee

“Z

Even a warrant which on its face

shows it is not supported by probable

cause is illegal and will not support an

arrest or search subsequent to the arrest.

Good v. State, 127 Ga. App. 775, 776 (1972).

Neither the Fulton County officers

nor the Missouri officer complied with the

Uniform Criminal Extradition Act. OCGA

17-13-1 et seg. The agreement must be

strictly complied with as the language

is "mandatory." United States v. Ford,

550 F.2d 732, 744 (2nd Cir. 1977), aff'd

436 U.S. 340, 98 S.Ct. 1834 (1978). The

officers did not have any information

that the Petitioner was "charged in the

courts of a state with a crime punishable

by death or imprisonment for a term exceed-

ing one year," (as the Supreme Court conceded

ek See 4

te OF Rae si. re...

52.

(Appendix A, ps. 8a)) and the Missouri

officer had no warrant or charge pending.

Police “bookings” for “investigation”

and "on suspicion” are illegal. Collins

v. United States, 289 F.2d 129 (5th Cir.

1963): Stapvles v. United States, 320 F.2d

817 (5th Cir. 1963). Extradition arrests

cannot be made on a lesser basis than

Fourth Amendment probable cause. Kirk-

land v. Preston, 385 F.2d 670 (D.C. Cir.

1967). "But when the extradition papers |

rely on a mere affidavit, even where sup-

ported by a warrant of arrest, there is

no assurance of probable cause unless it

is spelled out in the affidavit itself.”

Id., at 676.

The facts of the case here are similar

to Batton v. Griffin, 240 Ga. 450 (1978).

There the court found: "No arrest warrant

or indictment accompanied the reauisition,

only two ‘Juvenile Petitions’ and ‘Deten- 4

. te

s Pee

53.

tion Orders.' So far as we can tell, no

determination of probable cause to arrest

Petitioner was made by any magistrate in

North Carolina, and none is necessary for

the issuance of these documents under the

law of that state." Id., 450, 451. The

court found the arrest illegal, saying

"No arrest warrant was issued, and no in-

dictment was returned." Id, at 252. The

court ruled theprocedure employed by the

demanding state to be constitutionally de-

ficient because, as here, the procedure

"does not recuire any determination of

probable cause to arrest as a prerequis~-'

ite” to the arrest. Id., at 252. Miss-

ouri's "hold 20” procedure is no different

from the North Carolina juvenile hold pro-

‘cedure condemned in Batton. The Missouri

procedure also closely resembles the pro-

cedures condemned in Staples, supra, and

54.

Collins, supra. Similarly, in Ierardi

v. Gunter, 528 F.2d 929, 931 (lst Cir.

1976), that court held that a prosecu-

tor's information, certainly more relia-

ble than the teletype, unsupported by

any further evidence of probable cause,

is insufficient to support an arrest.

The arrest and search must fail also

because the State has failed to show

the second prerequisite for an arrest

under OCGA 17-13-34 (Ga. Code Ann.

44-414). That second prerequisite is.

that the defendant has fled from jus-

tice. See Bearden v. State, 223 Ga.

380, 382 (1967). Indeed the court in

Batton, supra, at 452, found that “fur-

ther flight” was a precondition of the

use of OCGA 17-3-34 to suvport an

arrest. In Wisconsin v. Hughes, 229

NW2d 655, 661 (Wis. S.Ct. 1975), that

court held that there were two ele-

- lb

55.

ments necessary to support fs arrest

under this section of the Extradition

Act.: “That the defendant is charged

with a crime under the laws of another

state and that he is a figitive from

that state." Here, neither element is

present. Whatever the requirements

of the Extradition Act, an arrest must

always meet the probable cause stan-

dard: "“(A)n arrest is constitutionally

valid if, at the moment the arrest is

made, the facts and circumstances within

the knowledge of the arresting officer ;

and of which they had reasonably trust-

worthy information were sufficient to

warrant a prudent man in believing that

the accused had committed or was commit- i

ing an offense.” Durden v. State, 250 a

Ga. 325, 326 (1982), citing Beck v. Ohio,

379 U.S. 91, 85 S.Ct. 223 (1964).

Well established case law precludes

a finding that the search subsequent to

the illegal arrest should be allowed

based on the "good faith" exception.

See Whiteley, supra, 401 U.S. at 568:

"(t)he Laramie police were entitled

to act on the strength of the radio

bulletin...but an otherwise illegal

arrest cannot be insulated from chal-

lenge by the decision of the instiga-

ting officer to rely on fellow offi-

cers to make the arrest."

In Berry v. State, 163 Ga. App. 705,

711 (1982), that court noted the Georgia

courts have never recognized the "judici-

ally legislated ‘good faith' exception

to the judicially created ‘exclusionary

rule,'" one United States v.

Williams, 622 F.24 830 (5th Cir. 1980).

Moreover, the Fifth Circuit has ex-

pressly stated that the good faith ex-

ception does not apply to the facts of

this case. See United States v. Garcia,

676 F.2d 1086, 1094 (5th Cir. 1982):

It is not this Court's role to engraft

a “good faith" exception onto Texas

jurisprudence. Thus in this case, where

an arrest was unlawful under Texas stat-

utes, the game warden's good or bad

faith can have no bearing on our deci-

sion to exclude the illegally obtained

evidence.

But if, as here, the officer's actions

violated the defendant's clearly estab-

lished constitutional rights, there is

no good faith exception. Harlow v.

Fitzgerald, 102 S.Ct. 2727 (1982): Wood v.

Strickland, 420 U.S. 308 (1975). An arrest

by warrant based on probablescause is a

clearly established right as argued infra.

Furthermore, the burden to establish the

good faith defense wag on the State.

Williams, supra, 622 F.2d at 847.

Although the State relies on the

"reasonable information" section of the

statute in question, the officers testi-

fied they relied not on the statute but

on the teletype which they believed con-

stituted notice of an outstanding war-

rant. In fact, the teletype did not say

there was a warrant, nor was there any

communication that there was a warrant.

Therefore, the good faith exception must

fail as the actions of the officers were

not based upon any specific statutory

authorization, case law, or other legal

authority as envisioned in Harlow v.

Pitzgerald, supra.

Assuming the arrest was legal the

search which yielded the gun and

possibly the evidence admitted here

was beyond the scope of a spasetigg sa 34

Jeet

453 U.S. 454,101 S.Ct. 2680 (1981).

A search incident to arrest is limited

to the immediate area where the defendant

is at the time of the arrest. : Preston Vv.

United States, 376 U.S. 364, 367, 84 S.Ct.

881 (1964). The defendant here was a

lone forty~year old woman. She was

already out of the car when she was ar-

rested. Three policemen effectuated the

arrest. At the time of the search of the

passenger compartment one officer had the

defendant up against the police car, if

not in the police car. The arrest was for

an out of state charge and the state made

no claim that the search was for evidence

related to the offense for which the arrest

was made. Cf. Chimel v. California,

395 U.S. 752, 763, 89 S.Ct. 2034 (1969).

In Belton, supra, the Court identified

several factors for determining whether a

Ss Tee

search of the passenger car is within the

scope of the arrest. Those factors are not

present here. The passenger compartment

was not within the reach of the arrestee

as the defendant was up agaiust the police

car or actually in the police car. Here

there was no suspicion that there were

drugs or contraband in the car. Here

there were three policemen and one

arrestee as compared to the one officer

and four arrestees in Belton.

Moreover the gun was found in a closed

container. "A search incident to arrest

does not authorize the police to search

closed containers which do not reveal %

their contents or dispose them to plain

view." United States v. Ross, U.S. ’

102 S.Ct. 2157, 2167 (1982). "(A)

warrant is generally required before

personal luggage can be searched, and the

extent to which the Fourth Amendment

applies to containers and other parcels

depends not at all upon whether they

are seized from an automobile."

Arkansas v. Sanders, 442 U.S. 753, 764

fn.13, 99 S.Ct. 2586 (1976).

If the impoundment search of an auto-

mobile is unreasonable, the inventory

search which follows it is invalid.

Arkansas v. Sanders, supra; State v.

Ludvicek, 147 Ga. App. 784 (1976). Be-

fore the need for a legitimate inventory

séarch can arise, the police must have the

right and authority to take control of the

vehicle. United States v. Staller, §i6

P.2d 1284, 1289 (Sth Cir. 1980), cert.

denied. U.S. , 101 S.Ct. 207 (1980). The

automobile was legally parked before the

efficer stopped it or approached it. The

ae ee ey eS hehe eee 7" oS —_ 7 a aan es,

ec c n

- r

officers knew that the car was owned by

the defendant and her husband. The

officers knew that the defendant had just

left her mother's house which was one

and a half miles away. The officers

admit they did not ask the defendant

what she wanted done with the car. An

impoundment is not necessary where “the

evidence affirmatively shows that (the)

automobile was safely parked off

the street, that it had not been used

to store or carry drugs, nor had it been

involved in the drug sale in any way.”

Dunkum v. State, 138 Ga. App. 321, 325

(1976)... Accord United States v. Nelson,

511 F. Supp. 77, 81 (W.D. Tex. 1980). od

“Where the officer knows the identity

of the owner in question, he should make

at least a reasonable effort to deter- i j

mine the owner's wishes regarding dis-

position of the vehicle and that only

after such reasonable is made should

the necessity of impoundment attach."

State v. Darabis, 159 Ga. App. 121,

123 (1981).

Furthermore, the second impoundment

search at the police station was illegal

in that it was done without a warrant.

Arkansas v. Sanders, 442 U.S. 753, 762

(1979). Certainly opening the pill

bottle was beyond the scope of the in-

ventory search. United States v. Bloom-

field, 594 F2d 200 (8th Cir. 1979).

As argued above, the rules and regu-

lations of the Fulton County Police De- a

partment are not the authority envisioned

in United States v. Williams, supra,

and Harlow v. Fitzgerald, supra, to sup~

port the good faith exception. Although

the trial court 5 the inno

search based only on the good-faith

exception the Georgia Supreme Court

simply said the impoundment search was

authorized without giving any reason

whatsoever.

CONCLUSION

As argued above the state has shown no

exception to the Fourth Amendment that

authorizes police obtteers to conduct

the massive searches through personal

papers that wére done in this case. Inas-

much as these personal papers were seized

under OCGA 17-14-7(f) this case is con-

trolled by Waller v. Georgia, Case No.

83-321, cert. granted 11/7/83. For these

and the other reasons argued above this

Court should grant the writ.

. . au ae

Attorney for Petitioner iol

1477 Snapfinger Road

Decatur, Georgia 30032

(404) 288-0289 :

APPENDIX A

In the Supreme Court of Georgia

Decided: January 5, 1984

40227. LEDESMA, et al v. STATE

40315. MERRITT v. STATE

GREGORY, Justice.

Miriam Billings Ledesma and Wesley

Merritt were convicted of conspiring to

sell cocaine in violation of the Georgia

Controlled Substances Act. The indict-

ment charged that appellants, along with

three other named individuals, “from the

22nd day of June 1982 through the 22nd

day of October 1982, did unlawfully con-

spire to violate Schedule II of the Geor-

gia Controlled Substances Act by joining

among themselves and others to sell co-

caine, and certain members of such con-

spiracy did sell cocaine in violation of

Schedule II of the Georgia Controlled

Substances Act.” The three co-defendants

entered guilty pleas; two of them, Wesley

Freeman and Joseph Downing, testified a-

gainst appellants at trial.

(1) (a) Appellants argue the trial court

erred in denying their motions for directed

verdicts of acquittal. OCGA 17-9-l.

Appellants maintain the State's evidence

failed to prove a conspiracy took place

within the time frame alleged in the in-

dictment. "In proving the time of the

commission of an offense the State is not,

as a general rule, restricted to proof

of the date alleged in the indictment but

is permitted to prove its commission on

any date within the statute of limita-

tions." Grayson v. State, 39 Ga. App. 673

(148 SE 309) (1929); Price v. State, 247

Ga. 58, 59 n. 1 (273 SE2d 854) (1981).

Where, however, the indictment specific-

ally alleges the date of the offense is

material, the accused may be convicted only

. /

<2 7 Vee ¢)

if the State's proof corresponds to the

date alleged. Bloodworth v. State, 128

Ga. App. 657 (197 SE2d 423) (1973); Price, .

supra. The indictment in this case did

not allege the dates of the offense were

material. We hold that so long as the

evidence shows the existence of a con-

spiracy as alleged, the State may offer

any evidence relevant to the conspiracy

during the statutory period of limita-

tions.

Here, the State's evidence showed that

in May, 1982 Derrick Brown committed an

armed robbery in which appellant Ledesma's

purse was taken. Following Brown's arrest

police recovered the purse. Inside it

they found a ledger cataloging drug-

related transactions and a record of monies J

owed her by persons to whom she supplied ,

drugs. At the trial of this case Brown \

-—sdtentified that he had observed Ledesma a

¥ dj

ae ee haa VO) Fe

"cutting cocaine” on a number of occa-

sions between December, 1981 and March,

1982, Brown also admitted Ledesma had

been his “source” for cocaine since De-

cember, 1981.

Co-defendant Wesley Freeman testified

"in the summer of 1982" he received drugs,

which he subsequently sold, from co-

defendant Joseph Downing. According to

Freeman, appellant Ledesma supplied these

drugs to Downing. Freeman further tes-

tified that “in September or October" of

1982 he observed appellant Ledesma supply

drugs to co-defendant Delores Snead;

Snead, in turn, gave a portion of these

drugs to Freeman to sell.

Co-defendant Joseph Downing testified

that appellant Ledesma supplied the drugs

which he sold. He also testified that in

September or early October of 1982? he

heard Wesley Freeman telephone appellant =

Merritt to arrange for the delivery of a

package of cocaine.

Both Downing and Freeman admitted sell-

ing cocaine during the alleged time of the

conspiracy. At least one sale by Freeman

was corroborated at trial by the testi-

mony of an undercover police officer.

An October 23, 1982 search of the Wes-

Mer Chemical Company, in which appellants

Ledesma and Merritt were corporate officers

disclosed substantial drug paraphenalia

and numerous plastic bags containing co-

caine residue. In Ledesma's desk police

found a drug-testing apparatus and ledgers

recounting drug transactions. The trial

court did not err in denying the motion

for directed verdict of acquittal. The

evidence showed an established organiz-

ation, headed by Merritt and Ledesma,

which conducted seminars in drug sales

techniques and supplied cocaine to middle-

ee eee

men who, in turn, provided it to others

for sale "on the street.” This evidence

meets the standard set forth in Jackson

v. Virginia, 443 U. S. 307 (99 SC 2781,

61 LE2d 560) (1979).

(b) Nor did the trial court err in

denying appellant Merritt's motion for

directed verdict on the ground that the

testimony of accomplices Downing and Free-

man was uncorroborated. Where two or more

accomplices testify at trial, the testi-

mony of one accomplice may be corrorobated

(sic) by the testimony of the other.

Eubanks v. State, 240 Ga. 544(1) (242

SE2d 41) (1978). The drug paraphenalia

recovered from Wes-Mer Chemical Company

and evidence showing Merritt's asso-

ciation with two drug couriers provided

additional corroboration, thus matene::

fying the requirement of Birt v. State

236 Ga. 815 (225 SE2d 248) (1976).

(2) Following the May, 1982 armed

robbery of her home, Ledesma reported the

incident to the police, including the

fact that her purse had been taken by the

robber. She identified Derrick Brown as

the robber and gave police a description

of him. Police subsequently apprehended

Brown who led them to a wooded location

where he had hidden Ledesma's purse.

According to police testimony, the purse

was inventoried for use in the armed rob-

bery charge against Brown; the officer

conductine the inventory testified that

it was police procedure to inventory re-

covered stolen property. During the in- c

ventory police discovered ledgers de- .

tailing drug transactions. i

Prior to the trial of this case

Ledesma filed a motion to suppress these

drug ledgers. ‘The trial court denied the _

motion and the ledgers were admitted in

evidence. We find no Fourth-Amendment

violation. The police recovered property

which Ledesma reported stolen. A routine

police inventory was conducted to deter-

mine whether the purse, in fact, belonged

to Ledesma and whether the currency Ledesma —

had reported was in the bag remained there.

The police were in lawful possession of

Ledesma's purse, and it was proper to make

a good-faith inventory of the contents.

See, Johnson v. State, 23 Ariz. App. 64

(530 P2d 910) (1975). We hold that this

search and seizure was reasonable under

the Fourth Amendment.

(3) Appellants argue the trial court

erred in denying Ledesma's motion to

suppress evidence seized in a search of i Zi

14, 1962. As a result of this arrest =

, dies es

firearm and violation of the Controlled

Substances Act. This court affirmed,

finding the motion to suppress was proper-

ly denied. Ledesma v. State, # 39691

(Decided September 7, 1983).

Prior to the trial of this case Ledesma

renewed her motion to suppress the evi-

dence seized as a result of the Septem-

ber 14 arrest. The trial court? declined

to put the State to its proof a second

time, but permitted appellants the oppor-

tunity to call witnesses or otherwise of-

fer evidence which would raise issues

different from those raised in the first

motion to suppress. Appellants declined

to do so. We find no error.

(4) Appellant Merritt argues the

trial court erred in refusing to charge

the jury that a witness may be impeached 3

by proof of his conviction of a crime of

10a

moral turpitude. The trial court in-

structed the jury that a witness may be

impeached by contradictory statements or

by disproving facts he has testified to.

Over the State's objection appellant

was permitted to elicit responses from

Joseph Downing and Wesley Freeman that

each had prior felony convictions. Appel-

lant did not offer the records of these

convictions in evidence. This court has

held, for the purposes of impeachment, the

prior conviction of an adverse witness

cannot be shown by cross-examination of the

witness. To impeach a witness by a prior #

conviction the conviction must be proved

by the record of conviction itself, not

by cross-examination. Timberlake v. State ‘

246 Ga. 488, 499 (271 SE2a 792) (1980).

.- Even though the trial court erroneously — 4

allowed appellant to question the wit-

lla

nesses about past felony convictions,

appellant is not entitled to the reques-

ted charge on impeachment because he

failed to offer the proper evidence which

would be the records of conviction.

(5) Appellants argue that their char-

acter was impermissibly placed in evidence

twice during trial. Motions for mistrial

were made in each instance and denied by

the trial court.

(a) When asked by the State “in what

capacity” he had ever seen Ledesma in the

company of a drug courier known as “NeNe",

Derrick Brown replied, “Just large quanti-

ties of marijuana." Appellants argue this

put Ledesma's character in issue by bring-

ing in evidence of an unproved crime.

Brown's statement was, however, relevant 4

to prove Ledesma's association with a

a@rug courier whom the State linked to the

|) a

12a

conspiracy. "Evidence relevant to an issue

in the case is not rendered inadmissiable

because it may incidentally impugn the

character of an accused where character is

not otherwise in issue." Duck v. State,

250 Ga. 592, 598 (300 SE2d 121) (1983).

(b) On direct examination the State

asked the officer who arrested Ledesma

on September 14, 1982 to identify cal-

culator tapes taken from Ledesma's purse

“without going into the reason for the in-

vestigation" leading to his possession of

her purse. These calculator tapes con-

tained “names and figures" which the State

argued were linked to drug transactions

made in furtherance of the conspiracy. On

cross-examination this officer was asked i

if Ledesma consented to the search of her

purse. The officer answered, “she was

under arrest at the time, counselor."

l3a

Ledesma argues the officer's statement

improperly introduced evidence of another

crime and was unresponsive to her ques-

tion. The trial court found that the

question had been asked to suggest a lack

of authority to examine Ledesma's purse,

and that the officer's explanation of his

investigation was admissible. "Under the

facts set forth we do not think that the

trial court erred in overruling the...

motion for mistrial. The answer com-

plained of (was) responsive to questions

propounded by the defense consel... A

trial court does not commit error by

failing to strike answers which are re-

sponsive or which explain responsive

answers." Lemon v. State, 235 Ga. 74

(218 SE24 618) (1975). «;

l4a

(6) (a) Appellants argue the trial

court erred in denying their motions to

suppress evidence seized in three searches

conducted in October, 1982. It is not

disputed that electronic surveillance was

used to gather information which, in part,

established probable cause for the war-

rants used to execute these searches.

Appellants maintain the affidavits used

to support the authorization of the wire-

taps were insufficient as a matter of law.

They insist this insufficiency renders the

search warrants invalid.

The trial court conducted a hearing on

this motion to suppress, considering the

affidavits used to support the issuance

of the wiretaps and receiving testimony

from the trial judge who authorized the

electronic surveillance in this case.

Thereafter the trial court ruled that the

15a

wiretaps were lawful. Appellants have not

demonstrated to this court in what respect

the evidence before the authorizing judge

was insufficient. Absent a showing of

error to this court, the judgment of the

trial court is presumed to be correct.

Miller Grading Contractors, Inc., v.

Ga. Federal Savings & Loan, 247 Ga. 730

(279 SE2d 442) (1981); Watson v.

Stynchcombe, 240 Ga. 169 (240 SE2d 56)

(1977)

(b) Appellants argue that evidence

obtained from the electronic surveillance

was not properly sealed as required by

OCGA 16-11-64 (b) (8). Pretermitting a

resolution of the merits of this issue,

we note that the remedy for a violation

of this section is to render the wire-

tap evidence inadmissable. See Cox v.

State, 152 Ga. App. 453 (263 SE2d 238)

l6a

(1979). As appellants concede no wire-

tap evidence was admitted at trial, we find

no error.

(7) (a) Appellants next make a number

of inter-related attacks on OCGA 17-5-2l,

which sets forth the scope of a search

pursuant to a warrant, and OCGA 16-14-7(f)

which authorizes the seizure of property

subject to forfeiture under the Georgia

Racketeer Influenced and Corrupt Organ-

izations Act (RICO).

According to appellants, a number of

their “private papers” were seized in

violation of OCGA. 17-5-21 and the Fourth

Amendment to the United States Constitu-

tion during the October, 1982 searches.

These papers consisted of ledger reciting

drug transactions; two desk calendars re- .

counting drug transactions and the name of

a drug courier; deposit slips for Wee-Mer

Lie i ell, =

17a

Chemical Company found at appellant

Merritt's real estate business; a busi-

ness license of Wes-Mer Chemical Company;

and an employment contract between a

third party and Wes-Mer Chemical Company.

Both the business license and contract

denominated appellant Merritt as a

corporate officer in Wes-Mer Chemical

Company, and both were found during the

search of Merritt Realty. Appellants

maintain the scope of the search warrants

did not extend to the seizure of these

papers. These search warrants were not

offered in evidence and are not a part

of this record.

Appellants submit that these papers were

seized under the purported authority of

OCGA 16-14-7 which permits the seizure

of “all property of every kind used or

intended for use in the course of...

18a

a pattern of racketeering activity..."

Appellants insist that this statute con-

flicts irreconcilably with both OCGA

17-5-21 and the Fourth Amendment which,

appellants argue, do not permit the

seizure of private papers in absence of

a warrant authorizing their seizure. We

point out that OCGA 17-5-21 does not

preclude the seizure of private papers not

listed in the warrant where those papers

are the instrumentalities of a crime and

the search is otherwise valid. Tuzman v.

State, 145 Ga. App. 761 (244 SE2d 882)

(1978), cert. den. 439 U.S. 929 (99 SC

317, 58 LE2d 323). Nor does the Fourth

Amendment preclude the seizure of private

papers under these circumstances. U. S.

v. Couch, 648 F2d 938 (CA 4 1981), cert.

den. __U. &.__ (102 SC 491, 70 LE2d

259) (1981); Louie v. U. S., 426 F2d 1398

19a

(CA 9) (1979), cert. den. 400 U. S.

918 (91 SC 180, 27 LE2d 158); 70 ALR2d

1005.4 Furthermore, we hold that these

documents are not private papers. See,

McCormick, Evidence (2d Ed.), 179, pp.

380-381. See also, LaFave, Search and

Seizure, 2.6(e), pp. 395-8. Appellants

concede that these papers could have been

seized under the broad reach of OCGA

16-14-7(f). As we have determined that

the seizure of these papers contravened

neither OCGA 17-5-21 nor the Fourth

Amendment, we do not find the conflict

urged by appellants.

(b) This court has upheld the RICO

statute against the facial constitutional

attack made here. Waller v. State, 251

Ga. 124 (__SE24__) (1983). ‘There is no

merit to appellants’ contention that this

statute gives law enforcement officers

20a

unbridled discretion to search for evidence

of illegal activity.

(8) The record indicates that at the

hearing on the motion to suppress evidence

obtained in the October, 1982 searches, the

trial court considered the search warrants

and supporting affidavits in determining

there was sufficient probable cause to

authorize the searches. The failure to

put the search warrants in evidence is

not reversible error where appellants have

not shown harm. Merritt v. State, 121

Ga. App. 832 (175 SE2d 890) (1970).

(9) We have carefully examined appell-

ants enumerations of error regarding the

correctness of the trial court's charge

and find them to be without merit.

(10) Following their convictions in

February, 1983, appellants filed motions

for appeal bond. The trial court denied

2la

the motions finding a substantial like-

lihood existed that appellants would commit

other crimes if released. Birge v. State,

238 Ga. 88 (230 SE2d 895) (1976). In

their briefs appellants state that they

timely filed notices of appeal from this

decision, but later withdrew them. An

appeal of this issue is now untimely.

(11) In case # 40227, appellant

Merritt appeals from the denial of a

subsequent motion for appeal bond.

That case is dismissed as moot.

Judgment affirmed. All the Justices

concur, except Weltner, J. not parti-

cipating in case # 40315.

22a

APPENDIX B

In the Supreme Court of Georgia

January 31, 1984

40227 Ledesma v. State

We have considered the merits of

defendant Ledesma's motion for rehearing

and find them lacking. Ordinarily we

Simply would deny the motion. However,

we have also considered the offensive

language of the motion which is so

unnecessarily censorious of our opinion

and counterproductive of the orderly

judicial process, we elect to dismiss.

Motion dismissed.

ENDNOTES

1/ We point out that our holding here

does not alter OCGA 24-3-5, which pro-

vides “After the fact of conspiracy is

proved, the declaration by any one of the

conspirators during the pendancy of the

criminal project shall be admissible

against all."

2/ Downing testified that this con-

versation occurred “five or six months”

prior to trial. Trial commenced on

February 9, 1983.

3/ The record indicates the trial

judge who ruled on the first motion to

suppress heard Ledesma's motion to sup-

press in this case.

4/ For a discussion of Fourth Amend-

ment implications where the papers seized

are not instrumentalities of a crime, see

Lafave, Search and Seizure, 2.6(e), pp.

391-399.

CERTIFICATE OF SERVICE

I hereby certify that I have served a

copy of this petition, by mail upon:

Hon. Michael Bowers

Attorney General of Georgia

132 State Judicial Bldg.

40 Capitol Square SW

Atlanta, Georgia 30334

and

Hon. Ben Oehlert

Assistant District Attorney

300 Fulton County Courthouse

136 Pryor St. SW

Atlanta,Georgia 30303

This the day of March, 1984.

J.M. Raffraut

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.