Opposition — Ledesma v. Georgia

Ree ea)

€ Supreme Court, U.S

FILED

MAR $0 1984

NO. 83-1463 ALEXANDER L. STEVAS,

——

IN THE

Supreme. Court of the United States

OCTOBER TERM, 1983

MIRIAM BILLINGS LEDESMA,

Petitioner,

7

STATE OF GEORGIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

BRIEF IN OPPOSITION FOR THE RESPONDENT

WituraM B. Hitt, Jr.

Senior Assistant

Attorney General

Counsel of Record

for the Respondent

MIcHAEL J. Bowers

Attorney General

James P. Gooas, Jr.

Executive Assistant

Please serve: Attorney General

Marion O. Gorpon

WILLIAM B. Hitt, Jr.

132 State Judicial Bldg.

40 Capitol Square, S.W.

Atlanta, Georgia 30334

(404) 656-3599

First Assistant

Attorney General

Dennis R. Dunn

Attorney

QUESTIONS PRESENTED

l.

Whether this Court should grant a

writ of certiorari to examine the

lawful seizure of evidence pursuant to

a valid state search warrant?

2.

Whether this Court should grant a

writ of certiorari to examine an

alleged violation of Georgia state

law, which the Georgia Supreme Court

decided purely on adequate and ;

independent state grounds? a

3.

Whether this Court should grant a

writ of certiorari to examine the

Petitioner's opportunity to ligitate

every ruling on every motion to

suppress in the instant case where the ae

i.

record shows such opportunity was

provided?

4.

Whether this Court should grant a

writ of certiorari to examine the

identical issues previously submitted

to this Court, and where the petition

for the writ of certiorari was denied, |

in Ledesma v. State of Georgia,

U.S. _—s—« (Case No. 83-755, decided

Jan. 16, 1984), challenging the

Petitioner's lawful arrest and the

valid search of Petitioner's person

and automobile?

ii.

TABLE OF CONTENTS

QUESTIONS PRESENTED...

STATEMENT OF THE CASE . °.

REASONS FOR NOT GRANTING

THE WRIT. . . . * . . . .

A. EVIDENCE PRESENTED

AGAINST THE

PETITIONER AT HER

TRIAL WAS LAWFULLY

SEIZED PURSUANT TO A

VALID SEARCH

WARRANT. . « « «© «© «

B. BASED ON STATE

EVIDENTIARY AND

PROCEDURAL LAW, THE

SUPREME COURT OF

GEORGIA PROPERLY

REJECTED THE

PETITIONER'S

CONTENTION THAT THE

SEARCH WARRANTS IN

THE INSTANT CASE

WERE NOT SUPPORTED

BY PROBABLE CAUSE . .

iii.

13

a

C. THE SUPREME COURT OF

GEORGIA WAS NOT

PRESENTED WITH THE

ISSUE OF WHETHER OR

NOT THE PETITIONER

HAD BEEN AFFORDED A

FULL AND FAIR

OPPORTUNITY TO

LITIGATE HER MOTIONS

TO SUPPRESS . ... - 23

D. THE SUPREME COURT OF

GEORGIA'S DECISION,

BASED ON ADEQUATE

AND INDEPENDENT

STATE GROUNDS, WAS

CORRECT REGARDING

. THE EVIDENCE SEIZED

AS A RESULT OF THE

PETITIONER'S

SEPTEMBER 14, 1982

ARREST. . « «© «© «© « « 27

CONCLUSION .. «+ «© « « 35

CERTIFICATE OF SERVICE. . 41

APPENDIX A... « «© « ¢ 36

APPENDIX B . . . . . . . ; et

iv.

TABLE OF AUTHORITIES

Andresen v. Maryland, 427 U.S.

73 (1976) >. .* _ = > > >. >. 7 >.

Beck v. Ohio, 379 U.S. 89

(1964 ) .* > a > - > . * >. . 7 >

Berea College v. Kentucky, 2ll

U.S. 45 (1908) - - . . > + >

Cardinale v. Louisiana, 394

Weis 437 (1969). . > * >. 7 i .

Chambers v. Maroney, 399 U.S.

42 (1970). . > — 7 >. > >. >

Chimel v. California, 395 U.S.

752 (1969) 7 . >. >. 7 . > > >

Coolidge v. New atest ter 403

U.S. 4 ’ 4 19 1 . . . : 7

Durden v. State, 250 Ga. 325,

297 S.E.2a 237 (1982). > > — >

Fox Film ay v. Muller, 296

i= De _ >. > * o > >.

Herb v. Pitcairn, 324 U.S.

Ledesma v. State, 251 Ga. 487,

S.E. 1983), cert.

denied, ¥.03 (Case

No. 63-755, decided

Jan. 16, 1984) a o > . > _ >. >

24, 25

Ledesma v. State, 251 Ga. 885,

S.E. 2d (1984). - . o passim

Miller Grading Contractors v.

Georgia Federal Savings and: Loan

Association, 247 Ga. 730, 279

S.E.2d 442 (1981). . . « «© «© 16

New York v. Belton, 453 U.S.

See RAPOGE & © 6 si6 2 6 0 ee 99

South Dakota v. Opperman, 428

U.S. 364 (1976). . «. «© © © © © 33

United States v. Abrams, 615

Poae wen CAGe Caf. APOE) - « «

United States v. Jacob, 657

F.2q 49 (4th Cir. .961), cert.

denied, U.S. __, 102 S.Ct.

SRT; bd seo ee ee

United States v. Wuagneux, 683

F.2d 1343 (llth Cir. 1982) .. 5, 6, 7

Waller v. State, 251 Ga. 124,

303 S.E.2d 437 (1983), cert.

granted, U.S. (Case

Nos. 63-321, 83-322 1983). . . 10, 12

Watson v. Stynchcombe, 240

Ga. 169, 240 S.E.20 56 (1977). 16

Zzacchini v. Scripps-Howard

Broadcasting vo., 433 U.S.

. +. . * . . . 19

vi.

Statutes cited:

O.C.G.A. § 16-11-64(b)(8);

Ga. Code Ann. § 26-3004... 16, 17, 20

O.C.G.A. § 16-14-7(f£);

Ga. Code Ann. § 26-3405... 9

0.C.G.A. 5 17-5-21;

Ga. Code Ann. § 27-303. . . . ef

vii.

NO. 83-1463

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

MIRIAM BILLINGS LEDESMA,

Petitioner,

Vv.

STATE OF GEORGIA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

BRIEF IN OPPOSITION

FOR THE RESPONDENT

PART ONE

STATEMENT OF THE CASE

The Petitioner, Miriam Billings

Ledesma, was convicted, along with

Wesley Merritt, of conspiracy to sell

cocaine in violation of the Georgia

Controlled Substances Act.

Petitioner's co-defendants, Wesley

Freeman and Joseph Downing, testified

against Petitioner and Merritt at

trial.

Petitioner's convictions and

sentences were affirmed by the Supreme

Court of Georgia at Ledesma v. State,

251 Ga. 885, _—s—«S.E.2d s« (1984).

Petitioner now seeks a writ of

certiorari from the affirmance of her

convictions and sentences by the

Supreme Court of Georgia. 2

- <<). eee ~ >. a ae = cea -

43 * % af Bae eee | Te >} Ss te: A oe, BS ——. A)

Petitioner had previously been

convicted of a violation of the

Georgia Controlled Substances Act and

possession of a firearm by a convicted

felon, and said convictions and

sentences affirmed at Ledesma v.

State, 251 Ga. 487, 306 S.E.2d 629

(1983), cert. denied, U.S.

(Case No. 83-755, decided Jan. 16,

1984).

Further facts may be developed

herein as necessary for a more

thorough illumination of the issues

presented to this Court for resolution.

PART TWO

REASONS FOR NOT GRANTING THE WRIT

A. EVIDENCE PRESENTED

AGAINST THE PETITIONER

AT HER TRIAL WAS

LAWFULLY SEIZED PURSUANT

TO A VALID SEARCH

WARRANT.

Petitioner alleges that evidence

presented against her at trial was

unlawfully seized because police

authorities exceeded the scope of

search warrants issued against the

Petitioner. Respondent submits that

all evidence seized and introduced

against the Petitioner was lawfully

seized pursuant to valid search

warrants and Petitioner presents no

substantial federal issue herein for

review by this Court.

In its review of the instant case,

the Supreme Court of determined that

evidence which had been seized

pursuant to the challenged search

warrants was properly seized under

0.C.G.A. § 17-5-21; Ga. Code Ann.

§ 27-303. Ledesma v. State, 251 Ga.

at 890. (See Appendix A for text of

statute). As said statute is fully in

accord with the Fourth Amendment

standards for search and seizure, the

Supreme Court of Georgia properly

concluded that no Fourth Amendment

violation was presented in the instant

case.

The Fourth Amendment guarantees a

person's right against unreasonable

searches and seizures and that no

wld

a

+ we ,

Meet i

tA ee ea

search warrants shall issue except

after a showing of probable cause,

supported by an oath or affirmation,

and particularly describing the place

to be searched, and the persons or

things to be seized. U.S. Const.

amend. IV. This requirement is

designed to prevent general searches

throughout a person's belongings.

Coolidge v. New Hampshire, 403 U.S.

443, 467 (1971).

However, this Court has recognized

that effective investigation of

complex crimes may require the

assembly of a “paper puzzle" from a

large number of seemingly innocuous

pieces of individual evidence. United

States v. Wuaheneux, 683 F.2d 1343,

1349 (llth Cir. 1982), citing,

Andersen v. Maryland, 427 U.S. 463,

481 n. 10 (1976). “The complexity of

an illegal scheme may not be used as a

shield to avoid detection when the

State has demonstrated probable cause

to believe that a crime has been

committed and probable cause to

believe that evidence of this crime is

in the suspect's possession." Id.

quoting, Andresen v. Maryland,

supra. See also, United States v.

Jacob, 657 F.2d 49, 52 (4th Cir.

1981), cert. denied, U.S. , 102

S.Ct. 1435 (1982); United States v.

Abrams, 615 F.2d 541, 548 (lst Cir.

1980) (Campbell, J., concurring). “It

is universally recognized that the

particularity requirement must be

applied with a practical margin of

flexibility, depending on the type of

property to be seized, and that a

WAS

" parey™

*

gal

Lids (DAT

description of property will be

acceptable if it is as specific as the

circumstances and nature of activity

under investigation permit." Id.

In the instant case, warrants were

issued for the search of Wes-Mer

Chemical Co. in which Petitioner and

co-defendant Merritt were corporate

officers. Ledesma v. State, 251 Ga.

at 886. The search of the chemical

company disclosed substantial drug

paraphernalia and numerous plastic

bags containing cocaine residue. Id.

In Petitioner's desk,-police found a ,

drug testing apparatus and ledgers

recounting drug transactions. Id.

Additionally, two desk calendars

recounting drug transactions, the name

of a drug courier, deposit slips for

Wes-Mer Chemical Co., a business

license of Wes-Mer Chemical Co., and a

contract between a third party and

Wes-Mer Chemical Co. were also seized.

Id. at 890. Both the business license

and the contract show that Merritt was

a corporate officer in Wes-Mer. Id.

As all the materials seized were

evidence of the commission of a crime,

and therefore within the scope of the

warrants issued and a valid police

search there was no violation of

either Georgia law or the Fourth

Amendment. The Supreme Court of

Georgia was correct in its

determination regarding these

materials, and its decision does not

present any issue for review by this

Court.

Petitioner also attempts to

challenge the constitutionality of

O.C.G.A. § 16-14-7(£); Ga. Code Ann.

§ 26-3405, known as the Georgia

Racketeer Influenced and Corrupt

Organizations Act. (RICO). (See

Appendix B). However, Petitioner

concedes that the instant case was not

prosecuted under the RICO statute.

(See Petitioner's petition at p. 28).

Additionally, the Supreme Court of

Georgia noted that Petitioner conceded

that the materials challenged could

have been seized under the Georgia

RICO statute. Ledesma v. State, 251

Ga. at 891. The Supreme Court of

Georgia did not specifically address

the applicability of the Georgia RICO

statute to the instant case, but

instead dismissed the Petitioner's

Claims regarding the constitutionality

of the statute in dicta, referring to

its decision in Waller v. State, 25]

Ga. 124, 303 S.E.2d 437 (1983), cert.

granted, U.S. (Case Nos.

While Waller v. State, supra,

dealt with specific prosecutions under

the Georgia RICO statute, as well as

extensive searches and seizures, the

instant case deals solely with

violations of the Georgia Controlled

Substances Act and searches limited

solely to that issue. The instant

case does not present the exact same

issue as presented in Waller, nor did

the Supreme Court of Georgia

specifically address the

constitutionality of the challenged

statute in the instant case.

Therefore, Respondent asserts that

the Supreme Court of Georgia

af@-

oe

determined the validity of the

searches challenged herein under an

adequate and independent state ground,

by interpreting 0.C.G.A. § 17-5-21;

Ga. Code Ann. § 27-303. In accord

with this statutory provision, the

Supreme Court of Georgia also

determined that no Fourth Amendment

violations were presented by the

Petitioner's claims.

Respondent also asserts that the

instant case is an inappropriate case

for consideration of the

constitutionality of the Georgia RICO

statute since said statute was not a

part of the prosecution of the

Petitioner nor was it the basis of the

searches involved. The Georgia RICO

statute was addressed solely in answer

to one of the Petitioner's contentions

elle

on direct appeal, and dealt with by

the Supreme Court of Georgia only

indirectly. The instant case is not

Similar and does: not present the same

issues as Waller v. State, supra

wherein this Court has granted

certiorari to review two issues, one

of which is the Georgia RICO statute.

For all the above and foregoing

reasons, Respondent respectfully

submits that the Supreme Court of

Georgia was correct in its

interpretation of the Petitioner's

constitutional rights and that the

Petitioner's allegations presented

herein do not raise any issue for

review by this Court.

~i2=

B. BASED ON STATE

EVIDENTIARY AND

PROCEDURAL LAW, THE

SUPREME COURT OF GEORGIA

PROPERLY REJECTED THE

PETITIONER'S CONTENTION

THAT THE SEARCH WARRANTS

IN THE INSTANT CASE WERE

NOT SUPPORTED BY

PROBABLE CAUSE.

Petitioner contends that all

evidence seized under all search

warrants in the instant case should

have been suppressed because of the

possibility that the search warrants

were issued in partial reliance upon

unauthorized wiretaps. Respondent

submits that the Supreme Court of

Georgia properly rejected this

a} Fe

argument, basing its decision on state

procedural and evidentiary grounds.

Additionally, Respondent asserts that

there was sufficient probable cause

demonstrated to support the issuance

of the search warrants.

The trial court in the instant

case held an extensive motion to

suppress hearing regarding the

warrants issued against the

Petitioner, and her co-defendants.

(T. 166-277). At said hearing, the

officers involved in the investigation

of the Petitioner as well as the judge

who issued the search warrants,

testified regarding the events leading

up to the various searches and

wiretaps. Additionally, the state

submitted into evidence the various

affidavits, court orders, and returns

-14-

and reports regarding the wiretaps and

warrants in question. The trial court

concluded that there was probable

cause to support the various searches

conducted in the instant case, and

that evidence from three wiretaps was

also admissible. Regarding another

two wiretaps, the state agreed not to

submit any evidence regarding the

contents of these wiretaps, and

therefore, no issue was presented to

the trial court regarding the

admissibility of any evidence gathered

in those two wiretaps.

During direct review of this

issue, the Supreme Court of Georgia

held that the Petitioner had failed to

carry her burden of proof in showing

that the trial court was clearly

erroneous in its determinations

=) $<

regarding the searches and wiretaps.

Ledesma v. State, 251 Ga. at 889,

citing, Miller Grading Contractors y.

Georgia Federal Savings and Loan

Association, 247 Ga. 730, 279 S.E.2d

442 (1981); Watson v. Stynchcombe, 240

Ga. 169, 240 S.E.2d 56 (1977).

Additionally, the Supreme Court of

Georgia rejected Petitioner's argument

that 0.C.G.A. § 16-11-64(b)(8); Ga.

Code Ann. § 26-3004 had been violated

by the state in that the electronic

surveillance had not been properly

sealed. Id. The Supreme Court of

Georgia determined that, as no

evidence had been admitted from the

allegedly unsealed wiretaps, no issue

was presented for review by that Court

because, had the statute been actually

violated, the remedy which would have

“y=

been imposed was the exclusion of the

evidence. Id. Therefore, the court

found no violation of 0O.C.G.A.

§ 16-11-64; Ga. Code Ann. § 26-3004.

Respondent asserts that this

decision by the Supreme Court of

Georgia was based on an adequate and

independent non-federal or state

ground, thereby presenting no issue

for review by this Court. This Court

has consistently adhered to a

self-imposed principle that it will

not review a state court judgment

based upon an adequate and independent

non-federal or state ground, even

though a federal question may be

involved and perhaps wrongly decided.

Berea College v. Kentucky, 211 U.S.

45, 53 (1908); Fox Film Corp. v.

Muller, 296 U.S. 207 (1935). In

ol Te

explanation of this policy, this Court

has said:

The reason is so obvious

that it has been rarely

thought to warrrant

statement. It is found

in the partitioning of

power between the state

and federal judicial

systems and in the

limitations of our own

jurisdiction. Our only

power over state

judgments is to correct

them to the extent that

they incorrectly adjudge

federal rights. And our

power is to correct

wrong judgments, and not

xT

revise opinions. We are

not permitted to render

an advisory opinion, and

if the same, judgment

would be rendered by the

state court after we

corrected its use of

federal laws, our review

could amount to nothing

more than an advisory

opinion.

Herb v. Pitcairn, 324 U.S. 117,

125-126 (1945); Zacchini v.

Scripps-Howard Broadcasting Co., 433

U.S. 562, 566 (1977).

Petitioner is attempting to

challenge the Supreme Court of

Georgia's ruling that the trial court

had not been shown to be clearly

-19-

erroneous in its decision.

Additionally, Petitioner seeks redress

from this Court from aileged

violations of 0.C.G.A. § 16-11-64; Ga.

Code Ann. § 26-3004, regarding a state

requirement that wiretaps be properly

sealed and published. Neither of

these issues raised by the Petitioner

present substantial federal questions

for review by this Court.

Assuming arguendo that a federal

issue is deemed raised, the Supreme

Court of Georgia properly determined

that no constitutional or federal

violation occurred in conducting the

searches in question. In the instant

case, evidence was presented to the

trial court showing that police

officers ir.volved in the investigation

of the Petitioner sought search

-$8~

' .crants and wiretaps regarding the

Petitioner and other co-defendants

based on a continuing police

investigation, reliable information

from a confidential informant and

information from other wiretaps.

Petitioner makes no challenge to the

information provided to the issuing

magistrate from all of these saurces,

except for two initial wiretaps.

However, as the Supreme Court of

Georgia recognized, information from

the two questioned wiretaps was not

presented into evidence at trial.

Respondent asserts that all of the

information presented to the issuing

magistrate, from the various sources

involved provided sufficient probable

cause under the standards of the

Pourth Amendment to permit the

=Zi-

searches challenged herein. There is

no showing that all of the searches

involved in the instant case are in

some way “tainted" by the existence of

the two wiretaps, the contents of

which were not even presented at the

Petitioner's trial. All of the

searches in the instant case did not

derive from these two challenged

wiretaps, but instead, were the

products of a wealth of information

from various sources. Therefore,

there is no showing that the

subsequent evidence acquired from

searches, such as the drugs and drug

paraphernalia acquired from the

Wes-Mer Chemical Co., where the

"fruits of a poisonious tree" which

would warrant their exclusion from

evidence at the Petitioner's trial.

=239=

Therefore, for all the above and

foregoing reasons, Respondent asserts

that Petitioner has failed to present

any substantive issue of federal law

which would warrant a review by this

Court.

Cc. THE SUPREME COURT OF

GEORGIA WAS NOT

PRESENTED WITH THE ISSUE

OF WHETHER OR NOT THE

PETITIONER HAD BEEN

AFFORDED A FULL AND FAIR

OPPORTUNITY TO LITIGATE

HER MOTIONS TO SUPPRESS.

Petitioner contends that she was

denied a full and fair opportunity to

litigate her claims regarding the

motions to suppress evidence in the

trial court. Respondent submits that

=23<

this issue was not presented to the

Supreme Court of Georgia on direct

appeal, and presents no substantial

issue of federal or constitutional law

for this Court to review.

It is a well-established principle

of law that this Court will not decide

federal constitutional issues raised

for the first time on review of state

court decisions. Cardinale v.

Louisiana, 394 U.S. 437, 438 (1969).

Such questions which were not raised

below are very likely to have an

inadequate record, since it was

certainly not compiled with those

questions in mind and in the federal

system it is very important that the

state courts be given the first

opportunity to consider the

application of state statutes in light

=24«

of any constitutional challenge. Id.

at 439.

In the instant case, Petitioner

Claims that she was denied a full and

fair opportunity to litigate the

issues of her motions to suppress. The

Supreme Court of Georgia did not

address such an issue in its review of

the Petitioner's convictions on direct

appeal, and therefore, Respondent

avers that said issue is

inappropriately presented to this

Court.

Respondent also notes that a

hearing was held on the suppression of

evidence seized in the instant case.

(T. 166-277). Testimony of the

investigating police officers was

presented, as well as the testimony of

the judge issuing the search warrants.

=25-

Id. All witnesses were subject to

cross-examination by Petitioner's

counsel, outside of the hearing of the

jury. Additionally, the Supreme Court

of Georgia noted that at this hearing

on the motion to suppress the

affidavits used to support the

issuance of the wiretaps were

presented along with said testimony.

Ledesma v. State, 251 Ga. at 889.

Respondent asserts that this evidence

shows the Petitioner was not denied a

full and fair opportunity to litigate

the motion to suppress issue, and the

Petitioner has not been denied any due

process rights.

Therefore, for all the above and

foregoing reasons, Respondent asserts

that Petitioner has failed to present

any substantive issue of federal law

o26<

which would warrant review by this

Court.

D. THE SUPREME COURT OF

GEORGIA'S DECISION,

BASED ON ADEQUATE AND

INDEPENDENT STATE

GROUNDS, WAS CORRECT

REGARDING THE EVIDENCE

SEIZED AS A RESULT OF

THE PETITIONER'S

SEPTEMBER 14, 1982

ARREST.

Petitioner contends her

constitutional rights were violated

when she was arrested on September 14,

1962 and her person and automobile

searched, leading to discovery of

incriminating evidence. Respondent

asserts that the constitutionality of

=Z?-

Petitioner's arrest has been

previously litigated in a separate

appeal both to the Supreme Court of

Georgia and to this Court, and that

the Supreme Court of Georgia in the

instant case found no error in the

trial court's procedural handling of

the admission of this evidence.

Petitioner had been arrested on

September 14, 1982, based on a

teletype from the State of Missouri

Stating that she was wanted for

violations of the Missouri Controlled

Substances Act. At the time of this

arrest, the Petitioner and her car

were both searched, and incriminating

evidence against the Petitioner was

discovered. ir a prosecution separate

from the instant case, Petitioner was

convicted of violations of the Georgia

-26-

Controlled Substances Act and of

possession of a firearm by a convicted

felon. See Ledesma v. State, 251 Ga.

487, 306 S.E.2d 629 (1983). ° Raising

the identical issue as raised herein,

Petitioner applied to this Court for a

writ of certiorari, which was denied

on January 16, 1984.

The evidence produced by the

September 14, 1982 arrest was also

introduced at trial in the instant

case. As Petitioner had already had a

previous opportunity to fully and

fairly litigate this issue, the trial

court did not require the state to

relitigate this issue, but instead

gave the Petitioner the opportunity to

produce any further evidence which had

not been produced at her first trial.

The Supreme Court of Georgia found no

-29-

error in either this procedural action

or the trial court's refusal to

suppress the evidence which resulted

from the September 14, 1982 arrest.

Ledesma v. State, 251 Ga. at 887-888.

Respondent asserts that this

decision by the Supreme Court of

Georgia is based on adequate and

independent state grounds, i.e., this

procedure for the production of

evidence was acceptable, and

therefore, no federal issue is

presented for review by this Court.

Assuming arguendo that this issue

is reviewed by this Court on its

merits, the Petitioner's

constitutional rights were not

violated in any way regarding this

search. The official teletype from

the Missouri police authorities, sent

-30-

at the request of Georgia police

authorties, provided sufficient

probable cause for the Petitioner's

arrest because the arresting officers

at the time of the Petitioner's arrest

had facts and circumstances within

their knowledge which they believed

were reasonably trustworthy and which

were sufficient to warrant a prudent

man to believe the Petitioner had

committed an offense in the State of

Missouri. See Beck v. Ohio, 379 U.S.

89, 91 (1964). See also, Durden v.

State, 250 Ga. 325, 326, 297 S.E.2d

237 (1982). At the time of the

Petitioner's arrest, Georgia

authorities searched the immediate

area around the Petitioner, including

the passenger compartment of her car,

where a weapon was discovered. Such a

e3}-

search is constitutionally acceptable

under the guidelines established by

this Court. New York v. Belton, 453

U.S. 454, 560 (1981); Chimel v.

California, 395 U.S. 752 (1969).

After Petitoner's arrest,

Petitioner's automobile was impounded

pursuant to Fulton County, Georgia

Standard Operating Procedure

No. 23.3(D)(1)(d), taken to the police

impound yard, and an inventory search

conducted. During this search, a

plastic bottle of pills was found in

the ashtray of the Petitioner's car,

and these pills were later determined

to be phentermine, a controlled

substances under Georgia law. This

inventory search, pursuant to a

standard police inventory procedure,

is also acceptable under the

guidelines of this Court. South

Dakota v. Opperman, 428 U.S. 364

(1976); Chambers v. Maroney, 399 U.S.

42 (1970).

In addition to this evidence,

Georgia authorities also discovered a

drug ledger and a calculator and

tapes, all of which indicated the

Petitioner's involvement in violations

of the Georgia Controlled Substances

Act. As this evidence had been

discovered during the lawful search of

the Petitioner's automobile, the

evidence was properly admitted at

trial.

Therefore, for all the above and

foregoing reasons, Respondent

respectfully submits that the Supreme

Court of Georgia was correct in its

interpretation of Georgia procedural

and evidentiary rules, and that none

of the Petitioner's constitutional

rights have been violated, thereby

presenting no issue for review by this

Court.

CONCLUSION

This Court should refuse to grant

a writ of certiorari to the Supreme

Court of Georgia, as it is manifest

that there exists no federal question

for review by this Court as to the

Petitioner's claims and, further,

there is no substantial federal

question not previously decided by

this Court. Additionally, the

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decision sought to be reviewed is

demonstrably in accord with the

applicable decisions of this Court.

Respectfully submitted,

J

Senifor Assista Eat gorney General

Counsel of Recor

for Respondent

MICHAEL J. BOWERS

Attorney General

JAMES P. GOOGE, JR.

Executive Assistant

Attorney General

Pat Cork _

MARION O. GORDON

First Assistant Attorney General

DENNIS R. DUNN

Attorney

=35<

APPENDIX A

0O.C.G.A. § 17-5-21. Grounds for

issuance of search warrant; scope of

search pursuant to search warrant.

(a) Upon the written complaint of any

officer of this state or its political

subdivisions charged with the duty of

enforcing the criminal laws under oath

or affirmation, which states facts

sufficient to show probable cause that

a crime is being committed or has been

committed and which particularly

describes the place or person, or

both, to be searched and things to be

seized, any judicial officer

authorized to hold a court of inquiry

to examine into an arrest of an

offender against the penal laws,

herein referred to as "judicial

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officer," may issue a search warrant

for the seizure of the following:

(1) Any instrument, articles, or

things, including the private

papers of any person, which are

designed, intended for use, or

which have been used in the

commission of the offense in

connection with which the warrant

is issued;

(2) Any person who has been kidnapped

in violation of the laws of this

State, who has been kidnapped in

another jurisdiction and is now

concealed within this state, or

any human fetus or human corpse;

(3) Stolen or embezzled property;

(4) Any item substance, object, thing,

Or matter, the possesion of which

is unlawful; or

aS?a

(5) Any item, substance, object,

thing, or matter, other than the

private papers of any person,

which is tangible evidence of the

commission of the crime for which

probable cause is shown.

(b) When the peace officer is in the

process of effecting a lawful search,

nothing in this Code section shall be

construed to preclude him from

discovering or seizing any stolen or

embezzled property, any item,

substance, object, thing, or matter,

the possession of which is unlawful,

Or any item, substance, object, thing,

Or matter, other than the private

papers of any person, which is

tangible evidence of the commission of

a crime against the laws of this state.

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APPENDIX B

O.C.G.A. 16-4-7. Civil

Remedies-Forfeiture.

(f£) Seizure may be effected by a law

enforcement officer authorized to

enfore [sic] the penal laws of this

tate prior to the filing of the

complaint and without a writ of sezure

if the seizure is incident to a lawful

arrest, search, or inspection and the

officer has probable cause to believe

the property is subject to forfeiture

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 a

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reasonable time after 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.

CERTIFICATE OF SERVICE

I, William B. Hill, Jr., Attorney

of Record for the Respondent and a

member of the Bar of the Supreme Court

of the United States certify that in

accordance with the rules of the

Supreme Court of the United States I

have this day served a true and

correct copy of this Brief for the

Respondent in opposition upon the

Petitioner's attorney by depositing a

copy of this brief in the United

States mail with proper address and

adequate postage to:

J. M. Raffauf

Attorney at Law

1477 Snapfinger Road

Decatur, ,Georgia Me

This ay of 1984.

WILLIAM B. HILL, JR.

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