Opposition Brief — Duncan v. Georgia

eme Court, US.

" Supr

%) | EILED

\2 . FEB 20 1987

Nos. 8621068 and 86-1081

10L, JR.

In The nec

Supreme Court of the United States

October Term, 1986

LAWRENCE DUNCAN AND

MARGARET DUNCAN,

Petitioners,

Ne

STATE OF GEORGIA,

Respondent.

DELVIN RICHARD VAN NICE,

PAMELA JEAN LONG AND

DAVID WAYNE VAN NICE,

Petitioners,

v.

STATE OF GEORGIA,

Respondent.

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE COURT OF APPEALS OF GEORGIA

fay

CONSOLIDATED BRIEF BY THE RESPONDENT

IN OPPOSITION TO THE PETITIONS

FOR WRITS OF CERTIORARI

a. |

Vv

MARY BETH WESTMORELAND

Assistant Attorney General

Counsel of Record

For Respondent

MICHAEL J. BOWERS

Attorney General

Please serve:

MARY BETH WESTMORELAND

132 State Judicial Bldg.

40 Capitol Square, S.W.

Atlanta, Georgia 30334

(404) 656-3349

MARION O. GORDON

First Assistant

Attorney General

WILLIAM B. HILL, JR.

Senior Assistant

Attorney General

COCKLE LAW BRIEF PRINTING CoO., (800) 225-6964

or call collect (402) 342-2831

QUESTIONS PRESENTED

1.

Whether Petitioners have failed to present the stand-

ing question in the federal statutory context under 18

U.S.C. § 2518 to the Court of Appeals of Georgia for its

review.

2.

Whether the Court of Appeals of the State of Georgia

properly concluded that Petitioners lacked standing to

challenge the validity of the wiretap warrant as the al-

leged illegality related to an entity not a party to the in-

stant proceedings.

3.

Whether there was no due process violation sufficient

to justify the exclusion of any evidence in the instant

action.

4,

Whether the Court of Appeals of Georgia properly

concluded that there was no violation of either the federal

or state wiretap laws by the making of a duplicate tape

at the time of the wiretap when the reel-to-reel original

tapes were kept and returned to the court under proper

procedures.

D.

Whether the Court of Appeals of Georgia properly

concluded that all requirements of the state and federal

wiretap statutes were complied with in relation to ob-

taining the warrant for the wiretap.

il

6.

Whether the state court properly concluded that the

searches of the two automobiles in question were support-

ed by probable cause.

: -

Whether the Court of Appeals of Georgia properly

declined to find any constitutional violation based upon

the arrest and search of Petitioner Long.

lil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED Wo i

Stee. OF THe CASE... 1

REASONS FOR NOT GRANTING THE WRIT

I.

II.

IIL.

IV.

Vi.

VIL.

CON

PETITIONERS FAILED TO TIMELY RAISE

AN ASSERTION THAT THEY HAD STAND-

ING UNDER 18 U.S.C. § 2518 TO CHALLENGE

THE ALLEGED ILLEGALITY OF THE SUB-

ESSE St eee eee ce

ALL PETITIONERS LACK STANDING TO

CHALLENGE THE VALIDITY OF THE SUB-

POENAS FOR THE TELEPHONE TOLL

iy RES RESIS RS or

PETITIONERS HAVE ESTABLISHED NO

DUE PROCESS VIOLATION BY THE UTILI-

ZATON OF THE SUBPOENAS IN QUES-

I ccs

THE COURT OF APPEALS OF GEORGIA

PROPERLY FOUND NO VIOLATION OF

EITHER THE STATE OR THE FEDERAL

WIRETAP STATUTE BY THE UTILIZA-

TLON OF DUPLICATE CASSETTE TAPES ....

PETITIONERS HAVE SHOWN NO VIOLA-

TION OF THE FEDERAL WIRETAP STAT-

UTE IN THE OBTAINING OF THE WAR-

RANT FOR THE WIRETAP WHICH WOULD

JUSTIFY THE SUPPRESSION OF ANY SUB-

SEQUENTLY OBTAINED EVIDENCE

THERE WAS SUFFICIENT PROBABLE

CAUSE TO JUSTIFY THE GRANTING OF

SEARCH WARRANTS FOR THE TWO AU TO-

Seeeeeeseeee oe Ce re

THE SEARCH OF PAMELA JEAN LONG

WAS JUSTIFIED AS A SEARCH INCIDENT

RE TIN eee ae eT

8) 5k, Giilislacasaelacouosuanlie nace

14

17

19

iv

TABLE OF AUTHORITIES

Page

Cases CITED:

Beck v. Washington, 369 U.S. 541 (1962) een 3

Cardinale v. Louisiana, 394 U.S. 487 (1969) _.. cai 4

Franks v. Delaware, 438 U.S. 154 (1978) ccccecececceeeee tee 12

Herndon v. Georgia, 295 U.S. 441 (1939) 4

Illinois v. Gates, 462 U.S. 213 (L985) nnn nace nneeeeenneeseeeeceeeenne 16

Radio Station WOW, Inc. v. Johnson, 326 U.S. 102

IE ies cence teneretonemscsioaincninemaesnicbianencedaeoatanie 4

United States v. Leon, — U.S. —, 104 S.Ct. 3405

(1984) 16

United States v. Miller, 425 U.S. 485 (1976) 0. 4,6,7

United States v. Payner, 447 U.S. 727 (1980) 7

United States v. Russell, 411 U.S. 423 (1974) 0... 8

Van Nice v. State, 180 Ga. App. 112, 348 S.H.2d

515 (1986) .... ot 2,5, 15

Wireman v. State, 163 Ga. App. 439, 295 S.E.2d

I oe cacpesseecinscccssicase anon Soclcoalepmonictaecen pliant 18

SraTuTes CITED:

a I orci snes capclansinis oceania 3, 8, 14

Ree: 41 ee 3

Re Ok ces 3,6

Nos. 86-1068 and 86-1081

fa’

Vv

In The

Supreme Court of the United States

October Term, 1986

LAWRENCE DUNCAN AND

MARGARET DUNCAN,

Petitioners,

¥.

STATE OF GEORGIA,

Respondent.

DELVIN RICHARD VAN NICE,

PAMELA JEAN LONG AND

DAVID WAYNE VAN NICE,

Petitioners,

v.

STATE OF GEORGIA,

Respondent.

ft).

ON PETITIONS FOR WRITS OF CERTIORARI

TO THE COURT OF APPEALS OF GEORGIA

ray

CONSOLIDATED BRIEF BY THE RESPONDENT

IN OPPOSITION TO THE PETITIONS

FOR WRITS OF CERTIORARI

ral

Vv

PART ONE

STATEMENT OF THE CASE

On March 10, 1983, an investigation warrant was is-

sued for electronic surveillance to be conducted on a tele-

phone at the residence of Lawrence Duncan in Dade Coun-

ty, Georgia. Said telephone was listed in the name of

Margaret Duncan. Based on information obtained during

1

bo

the electronic surveillance, physical surveillance began of

the various Petitioners on Friday, March 25, 1983. Said

surveillance began in Dade County, Georgia and continued

to Savannah, Georgia on a Lincoln automobile. That auto-

mobile subsequently rendezvoused with a Cadillac in Sa-

vannah. The surveillance continued until the detention of

both vehicles in a parking lot in Savannah on March 27,

1983. At that time all Petitioners in the instant action were

arrested. Search warrants were obtained for both ve-

hicles and for a house which had been frequented by some

of the occupants of the vehicles during the previous few

days.

Petitioners were subsequently indicted in the Superi-

or Court of Chatham County on various charges relating

to violations of the Georgia Controlled Substances Act.

Motions to suppress were filed on behalf of the Petition-

ers challenging both the wiretap and the seareh of the

automobiles. On September 13, 1985, the trial court de-

nied the motions to suppress.

The Petitioners then filed an appeal from the denial

of the motions to suppress in the Court of Appeals of

Georgia. In a consolidated opinion from the interlocutory

appeal, the Court of Appeals of Georgia affirmed the trial

court’s denial of the motions to suppress. Van Nice v.

State, 180 Ga. App. 112, 348 S.E.2d 515 (1986). The Su-

preme Court of Georgia subsequently denied petitions for

writs of certiorari on October 9, 1986. The instant peti-

tions have been filed challenging the decision by the Court

of Appeals of Georgia.

PART TWO

REASONS FOR NOT GRANTING THE WRIT

I. PETITIONERS FAILED TO TIMELY RAISE

AN ASSERTION THAT THEY HAD STAND.

ING UNDER 18 U.S.C. §2518 TO CHAL-

LENGE THE ALLEGED ILLEGALITY OF

THE SUBPOENAS.

Petitioners’ initial argument relates to an allegation

that alleged illegal subpoenas were issued for the pro-

duction of certain telephone toll records. Petitioners also

assert that these telephone toll records served as a basis

for the subsequent affidavit and application for the wire-

tap. Thus, Petitioners assert that the wiretap was illegal.

In the original briefs filed in the Court of Appeals

of Georgia, the Petitioners raised this allegation under the

Fourth Amendment to the United States Constitution and

asserted this allegation under the Georgia wiretap statute.

See O.C.G.A. § 16-11-67. Petitioners did not mention the

federal wiretap statute in relation to this allegation. The

Court of Appeals of Georgia resolved the issues based

solely upon the Fourth Amendment to the United States

Constitution and 0.C.G.A. § 17-5-30 and O.C.G.A. § 16-11-

67. The court did not refer to the federal wiretap statute

in its decision on standing. Petitioners did not raise this

statutory concept until after the Court of Appeals of

Georgia had rendered its original opinion.

This Court has long recognized that a proper and

timely presentation of a federal question in the state court

is a jurisdictional prerequisite to review by this Court.

Beck v. Washington, 369 U.S. 541, 550-4 (1962). Raising

an issue for the first time in a petition for rehearing in

the state court is generally insufficient unless the state

court actually entertained the petition and decided the

question. Radio Station WOW, Inc. v. Johnson, 326 US.

102 (1945); Herndon v. Georgia, 295 U.S. 441 (1935). As

Petitioners failed to present the federal statutory ques-

tion to the state court in a timely fashion, certiorari

should be denied on this basis. See also Cardinale v, Lou-

isiana, 394 U.S. 437 (1969).

II. ALL PETITIONERS LACK STANDING TO

CHALLENGE THE VALIDITY OF THE SUB-

POENAS FOR THE TELEPHONE TOLL

RECORDS.

The Court of Appeals of Georgia properly concluded

that the Petitioners lacked standing to challenge the valid-

ity of the subpoenas for the telephone toll records. Peti-

tioners have asserted that the subpoenas were invalid as

there was no proceeding pending in any court at the time

of the issuance of the subpoenas. Respondent asserts that

the Court of Appeals of Georgia properly declined to con-

fer standing upon any of the Petitioners.

In United States v. Miller, 425 U.S. 435 (1976}, this

Court recognized that there was no protectable Fourth

Amendment interest in certain bank records which had

been subpoenaed. In that case, the grand jury subpoenas

were issued in blank by the clerk requiring an appearance

and a production of the records on a date eertain. The

hank records were obtained and subsequently used in the

investigation. This Court held that there was no intrusion

into any area in which the defendant had a protected

Fourth Amendment interest and concluded that there was

no legitimate expectation of privacy in the contents of

those documents. Id. at 440. The Court also noted that a

subpoena was not subject to the same strict requirements

as search warrants. Jd. at 440 n.8. Furthermore, in a foot-

note, the Court noted that the banks did not contest the

validity of the subpoenas, implying that only the banks

would have standing to challenge the subpoenas. Id. at n.9.

In the instant case, Petitioners are challenging the

seizure of certain telephone toll records for the tele-

phone in the name of Margaret Duncan. These records

belong to the telephone company and are not individual

records of any of the Petitioners. In relation to Petitioners

Delvin and David Van Nice and Long, the Court of Ap-

peals of Georgia properly concluded that these Petition-

ers were not aggrieved by the wiretap itself, noting that

to be aggrieved ‘‘the violation must have occurred on the

movants’ premises or the unlawfully heard conversation

must have been of the movants themselves in order to sup-

press the evidence.’’ Van Nice v. State, supra. As noted

by the court, neither was the case as it applied to Peti-

tioners Long, Delvin and David Van Nice. Thus, clearly

none of these Petitioners have standing to challenge the

wiretap itself, much less the subpoenas from the toll ree-

ords.

The Court of Appeals of Georgia noted properly that

the Duncans would have general standing to attack the

legality of the wiretap as it was on their telephone, but

properly concluded that the Duncans lacked standing to

assert that any illegality in the wiretap was due to the

manner in which the telephone toll records were obtained.

That court properly concluded that the telephone toll ree-

ords were not owned by the individual Petitioners and

that there was no privacy right violated by the obtaining

of these records. Thus, the court properly concluded that

there was no standing under the federal constitution to

challenge the procedure by which these telephone toll rec-

ords were obtained. Respondent submits that this is a cor-

rect holding under the principles of United States v. Miller,

supra.

The court also concluded that Petitioners Duncan did

not have a basis for a claim under O.C.G.A. § 17-95-30 as

they were not ‘‘aggrieved’’ by the seizure of the toll ree-

ords and the records belonged to the telephone company.

Respondent submits that the Court of Appeals of Georgia

correetly applied the principles of law set forth by this

Court in determining’that Petitioners Duncan lacked stand-

ing in regard to the Fourth Amendment issue.

Finally, even though the issue was not timely raised,

Respondent also asserts that Petitioners lack standing to

challenge the validity of the subpoena even under the fed-

eral wiretap statute. Petitioners were not aggrieved by

the subpoenas and the records obtained did not belong

to the Petitioners but belonged to the telephone company.

The only person actually having the authority to challenge

the validity of the subpoenas would be the telephone com-

pany itself. In fact, certain similar information was also

obtained through a pen register device and the informa-

tion in question could also have been obtained through

a pen register device. Thus, Respondent asserts that this

allegation simply fails to state a constitutional q .estion

for review by this Court.

III. PETITIONERS HAVE ESTABLISHED NO

DUE PROCESS VIOLATION BY THE UTILI.

ZATION OF THE SUBPOENAS IN QUES.

TION.

Petitioners next assert that the alleged illegal sub-

poenas constituted a sufficient violation of the due pro-

cess clause to require the granting of relief. Respondent

submits that Petitioner has failed to show any govern-

ment action which would justify the finding of a due pro-

cess violation.

In United States v. Payner, 447 U.S. 727 (1980), this

Court noted that a petitioner’s Fourth Amendment rights

were violated only when the challenged conduct invaded

his own legitimate expectation of privacy rather than that

of a third party. Thus, the Court found a lack of stand-

ing under the facts of that case. The Court also cited to

United States v, Miller, noting that the depositor in Miller

had no expectation of privacy in copies of checks and de-

posit slips on record with the bank. In United States v.

Payner, the Court did not condone the conduct, but noted

that even the conduct in that case did not command ex-

clusion in every case of probative but tainted evidence.

The Court emphasized the costly toll on the ability of the

courts to ascertain the truth in criminal cases. The Court

further noted in a footnote, that the same reasoning would

apply to a due process claim and that such would arise

only when there was some violation of a protected right

of a particular defendant in question.

Respondent submits that there was no due process

violation shown in the instant case as Petitioners have

failed to show that any subpoenas violated any of their

protected constitutional rights. Further, Petitioners have

failed to sh@w that there was any action which was ‘‘so

outrageous that due process principles would absolutely

bar the government from invoking judicial processes to

obtain a conviction.’’ United States v. Russell, 411 U.S.

423, 432 (1974). Thus this allegation fails to state a con-

stitutional issue for review by this Court.

IV. THE COURT OF APPEALS OF GEORGIA

PROPERLY FOUND NO VIOLATION OF

EITHER THE STATE OF THE FEDERAL

WIRETAP STATUTE BY THE UTILIZATION

OF DUPLICATE CASSETTE TAPES.

Petitioners have asserted that 18 U.S.C. § 2518(8) (a)

was violated by law enforcement officers making duplicate

tapes from the original wiretap. Respondent submits that

the Court of Appeals of Georgia properly found no con-

stitutional violation in this regard.

The tapes in question were cassette tapes which were

made at the same time that the original reel-to-reel tapes

were made during the wiretap monitoring. The cassette

recorder was activated manually and substantive conver-

sations were taped to allow the officers to have a work

tape with which to supplement their logs without having

to utilize the original tapes. There is no question that the

original reel-to-reel tapes were protected and preserved

as required under the state and federal wiretap statutes.

The Cou:t of Appeals of Georgia correctly concluded

that the federal wiretap statute anticipates the making of

such partial or duplicate tapes and does not require judicial

approval for such duplication. In fact, 18 U.S.C. ¢ 2518

(8)(a) states in part, ‘‘duplicate records may be made for

use or disclosure pursuant to the provisions of subsections

(1) and (2) of Section 2517 of this chapter for investiga-

Similarly, Georgia law also does not prohibit the

making of duplicate records. As noted by the Court of

tions.’’

Appeals of Georgia the original tapes were kept and re-

turned to the court and they were properly preserved. The

cassette tapes were utilized in maintaining the surveillance

log and in taking notes. The tapes were secured by the

G.B.L. agent, who also had the cassette tapes in his posses-

sion at the time of the hearing on the motions to suppress.

No showing has been made of any taint to either the cas-

sette tapes or the originals nor has there been any showing

of any improper publication of any of the tapes. Thus,

Respondent submits that there has been no violation of the

federal wiretape statute.

V. PETITIONERS HAVE SHOWN NO VIOLA-

TION OF THE FEDERAL WIRETAP STAT-

UTE IN THE OBTAINING OF THE WAR-

RANT FOR THE WIRETAP WHICH WOULD

JUSTIFY THE SUPPRESSION OF ANY SUB-

SEQUENTLY OBTAINED EVIDENCE.

Petitioners assert that probable cause was not set forth

on the face of the affidavit or in the application for the

warrant for the wiretap. In the petitions before this Court,

the Petitioners assert certain alleged inaccuracies in the

original affidavit for the warrant for the wiretap as a basis

for this allegation. Petitioners have also asserted that the

application failed to contain any facts showing the in-

adequacy of alternative investigative procedures and assert

that no showing was made why the authorization should not

have terminated earlier. Petitioners also assert that there

10

were reckless or intentional assertions which were false in

the affidavit and the application. Respondent asserts that

Petitioners have failed to set forth a sufficient basis for a

finding that the Court of Appeals of Georgia misapplied

federal law.

Respondent initially submits that it is clear there was

probable cause for the judge to issue the warrant for the

wiretap. Furthermore, even though it later turned out

that certain immaterial facts were not correct in the orig-

inal affidavit, there has been no showing that there was an

intentional or reckless statement of facts.

The affidavit submitted contained information show-

ing that Lawrence Duncan and his associates had long been

involved in activities relating to the distribution of nar-

cotics. The heavy use of the telephone between Duncan

and these inviduals would lead a reasonable person to be-

lieve that the telephone was being used to facilitate the dis-

tribution of narcotics. The investigation warrant was spe-

cific in that it authorized the interception of conversations

related to these activities.

As to the alleged inaccuracies in the affidavit, the

testimony at the motion to suppress hearing clearly sub-

stantiates the fact that the affiant, G.B.I. agent Bonnell,

believed the information to be true at the time he presented

the affidavit. Furthermore, the inaccuracies were not such

as to conclude that probable cause has not been shown.

The information showed that even though the affidavit

stated that Charles Edward Fleming had been arrested in

the possession of five kilograms of cocaine, Agent Bonnell

subsequently learned that it was only three kilograms of

cocaine. The affidavit also reflected that an agent had

11

purchased one pound of cocaine from Emanuel Fleming

who was stated in the affidavit to be the oldest son of

Charles Edward Fleming, Sr. ; however, it was later learned

that Fleming had a son older than Emanuel Fleming. Fur-

ther, Agent Bonnell in his affidavit stated that the elder

Fleming had been indicted in the above incident and testi-

fied at the hearing that he believed that that was the in-

formation relayed to him. It was later learned, however,

that Mr. Fleming had not been indicted at the time of the

affidavit, although he was being considered for indictment.

The affidavit also stated that certain drugs were found in

the residence of Connie Fleming Williams, when in fact the

drugs were found outside of the dwelling but on her prop-

erty.

The further alleged inaccuracy concerns a statement

relayed by investigator Griffin to Agent Bonnell. Agent

Bonnell in his affidavit stated that he had been advised

that the information concerning the shooting of Florence

Duncan came from persons directly involved with partici-

pants in the shooting; however, investigator Griffin indi-

cated that his information came from persons directly in-

volved in the drug deal related to the shooting, but not di-

rectly involved in the shooting itself.

Agent Bonnell specifically testified that lhe made no

intentional misstatements and that he believed all the in-

formation that he stated in the affidavit was true at the

time that he gave the information to the court. Thus, Peti-

tioners have failed to show any intentional or reckless false-

hood as Agent Bonnell fully believed all the information

to be true at the time he made the affidavit and as it has

also been shown that none of the inaccuracies were such as

12

to reflect on the materiality of the facts set forth in the

affidavit. See Franks v. Delaware, 438 U.S. 154, 178 (1978).

The Petitioners further assert that two of the persons

listed in the affidavit as persons involved with the Duncans

had been dead for several years at the time of the making

of the affidavit. Again, even though this subsequently

turned out to be true, Agent Bonnell testified at the hear-

ing on the motions to suppress that he did not know that

to be a fact at the time of the making of the affidavit and,

in fact, had no basis for such knowledge. He was present-

ing the trial court with as much information as he could on

the background of the Duncans and reasonably relied on

the information provided to him. Thus, again, there has

been no showing of intentional or reckless falsehood in re-

lation to this information.

Petitioners also assert that there was no showing as

to the unavailability of alternative investigative measures.

Respondent submits that the affidavit does establish that

alternative investigative procedures would not be success-

ful. Agent Bonnell in his affidavit noted the secrecy in-

volved in the operation and the fact that the informants

had not identified everyone involved. There was also in-

formation that Duncan had been arrested for a multitude

of violations and was aware of the techniques used in covert

investigations. The police had failed to make a case even

though the operation had been in existence for a long period

of time. The informants would not testify at any court

proceeding due to fear of physical harm or death. Fur-

thermore, the agent displayed photographs of the residence

to the issuing judge showing the isolated natvre of the

locale and also showing the fence placed around the resi-

13

dence as well as the gate on the fence and bars placed on

the windows.

The testimony presented at the motion to suppress

hearing amply supported the information contained in the

affidavit. It was established that the location in question,

Sand Mountain, was a close knit community and that any

attempts to make an intrusion therein would be noticed

and reported to the Duncans. The officers reiterated the

fact that there was no way to reasonably approach the resi-

dence without being observed and also noted the fence

around the residence. Respondent submits that all of this

information was clearly sufficient to show to the issuing

court that other investigative procedures not only would

be futile, but had been futile in the past. Thus, Petition-

ers have failed to show a violation of the federal wiretap

statute.

Petitioners finally assert that a sufficient showing

was not made to authorize a 20 day wiretap. Respondent

submits that a sufficient showing was made. The affiant

and the district attorney stated that time was needed to

obtain information on as many participants involved in

the drug organization as possible, noting that it was a con-

tinuing course of illegal conduct and that the identity of

those persons providing the controlled substances and those

facilitating delivery needed to be obtained. (Supplemental

record 1, 15-16; 20,25). Based upon the nature of the

evimes in question and the information provided to the

judge that this was an ongoing criminal enterprise, it is

clear that sufficient justification was presented to allow

the court to authorize a wiretap for 20 days.

14

Based upon all of the above, Respondent submits that

Petitioners have simply failed to show any violations of 18

U.S.C. § 2518; therefore, no federal questions are presented

for review of this Court. Thus, Petitioners have shown

no basis for the granting of certiorari.

VI. THERE WAS SUFFICIENT PROBABLE

CAUSE TO JUSTIFY THE GRANTING OF

SEARCH WARRANTS FOR THE TWO AU-

TOMOBILES IN QUESTION.

Petitioners have asserted that there was not suffi-

cient probable cause to justify the search warrants for the

Lineoln and Cadillac automobiles. Respondent submits

that Petitioners have shown no constitutional violation in

this regard.

Petitioners Duncan challenge the search of their Lin-

coln automobile, while Petitioners David and Delvin Van

Nice and Petitioner Long challenge the search of the Cad-

illac automobile. Respondent asserts that probable cause

was shown and the search warrants were properly issued

to search both automobiles.

In relation to the seirch of the Cadillae automobile

and the challenge of Petitioners Delvin and David Van Nice

and Long, the Court of Appeals of Georgia noted the fol-

lowing:

The affidavit in support of the warrant discussed the

phone coaversation in which Mr. Duncan was instruct-

ed to go to Savannah to pick up his order, the follow-

ing of Duncan to Savannah, investigators’ observa-

tion of various contacts and interactions between Dun-

“an and the Van Nices, and the use of the Cadillae by

Mr. Dunean and Delvin Van Nice to go to the private

residence. Included also was information that a GBI

bd

|

agent had observed a package transferred from the

private residence to the Cadillac where it was placed

in the vehicle ‘‘in such a way as to indicate that it

was being concealed.’’ Noted, too, was that suspected

marijuana was observed on the car’s front seat in plain

view as were cigarette rolling papers, ‘‘item[s] of

paraphernalia utilized in the consumption of con-

trolled substances.’’

Van Nice v. State, supra. The Court of Appeals found

that the affidavit ‘‘provided a substantial basis for con-

cluding the auto contained evidence of wrongdoing.’’ Jd.

The court went on to conclude that the fact that the affi-

davit had recited the G.B.I. agent observed a package being

transferred from the residence to the automobile, whereas

the later statement by the agent was equivocal as to wheth-

er the transfer actually was from the house to the auto-

mobile or from the automobile to the house, would not be

fatal to the warrant. The court concluded that this was

simply a minor factual inaccuracy which would not under-

mine the probable cause shown. The court did not specifi-

cally find that the Van Nices and the Longs both had stand-

ing to contest the auto search, but simply assumed that

they did. Clearly, should the search be found to be in-

valid, a further question would be presented as to the

standing of all parties involved.

As to the search of the Lincoln automobile in relation

to the Duncans, the Court of Appeals of Georgia simply

found this allegation to be without merit. The record estab-

lishes, as do the affidavits in support of the warrants, that

transfers were made between both vehicles in question and

the house on Montgomery Crossroads. Once again, Re-

spondent asserts that a simple review of the affidavit

16

shows that there was sufficient probable cause set forth

to justify the issuance of a search warrant.

As noted by this Court in J/linois v. Gates, 462 U.S.

213 (1983), a grudging attitude toward search warrants

would be inconsistent with the Fourth Amendment prin-

ciples. ‘‘So long as the magistrate had a ‘substantial basis

for... eoneluding that a search would uncover evidence of

wrongdoing, the Fourth Amendment requires no more.’ ”’

Id. Clearly, in the instant case the magistrate had a sub-

stantial basis for coneluding that a search would uncover

evidence of wrongdoing based upon the facts presented in

the affidavits. Respondent further submits that the police

officers in question clearly acted in good faith reliance on

the search warrants issued. In such circumstances, there

is a strong preference for warrants; thus, ‘‘the preference

for warrants is most appropriately effectuated by aecord-

ing ‘great deference’ to a magistrate’s determination.’’

United States v. Leon, — U.S. —, 104 S.Ct. 3405, 3417

(1984). Of course, this does not preclude inquiry into the

knowing or reckless falsity of the affidavit. It has not

been shown in the instant case, however, that there was

any knowing falsity presented in any of the affidavits or

that there was any reckless presentation of false informa-

tion. Finally, Respondent submits that as required by

lilinois v. Gates, supra, the affidavit did provide the magi-

‘rate with a substantial basis for determining the exist-

ence of probable cause.

This Court has recently noted in United States v. Leon,

supra, that there is no basis ‘‘for believing that exclusion

of evidence seized pursuant to a warrant will have a sig-

nificant deterrent effect on the issuing judge or magi-

17

strate.’’ Jd. at 3418. Therefore, ‘‘imposition of the ex-

clusionary sanction is not necessarily meaningful to inform

judicial officers of their errors, and we cannot conclude

admitting evidence obtained pursuant to a warrant while

at the same time declaring that the warrant was somehow

defective will in any way reduce judicial officers’ profes-

sional incentives to comply with the Fourth Amendment,

encourage them to repeat their mistakes, or lead to the

granting of all colorable warrant requests.’’ Jd. Thus,

this Court specifically concluded that suppression of evi-

dence obtained pursuant to a warrant ‘‘should be ordered

only on a case-by-case basis and only in those unusual cases

in which exclusion will further the purposes of the ex-

clusionary rule.’’ Jd. at 3419.

In the instant case, as the officers presented informa-

tion in the affidavits which they believed to be true at the

time it was given and as any inaccuracies have been shown

to be immaterial and as the magistrate had sufficient prob-

able cause presented to him to issue the warrants, any ex-

clusion of evidence in the instant case would simply not

further the purposes of the exclusionary rule. Thus, no

basis has been shown for the granting of certiorari in re

gard to this allegation.

VII. THE SEARCH OF PAMELA JEAN LONG

WAS JUSTIFIED AS A SEARCH INCIDENT

TO ARREST.

Petitioner Long has finally challenged the search of

her person and her purse at the time of her arrest. Re

spondent submits that this was a valid search incident to

arrest.

18

The information known to the law enforcement officers

at the time of the arrest was that all persons arrested ap-

peared to be involved in a conspiracy relating to drug

trafficking. Agents had monitored phone ealls relating

to drugs. On March 24, 1983, Lawrence Dunean received

a phone call from a person named Raoul stating that he

had various items for Duncan which appeared to be codes

for drugs. Raoul’s vehicle was supposed to arrive in

Savannah on Friday morning and he would be at the usual

place on Saturday morning. On Friday the Duncans drove

to Savannah where they met another vehicle from Dade

County on early Saturday morning, this being the vehicle

belonging to the Van Nices. On Saturday and Sunday both

vehicles engaged in furtive maneuvers. Numerous tele-

phone calls were made and packages were observed mov-

ing between the vehicles and a residence on Montgomery

Crossroads. The vehicles arrived at the K-Mart parking

lot and the occupants appeared to look for surveillance.

The arrest was made with the ears together in the lot.

Under Georgia law, conspiracy may be shown by in-

ference and deduction from conduct which shows common

design on the part of the persons to act together for the

accomplishment of the unlawful purpose. See Wireman

v. State, 163 Ga. App. 489, 440, 295 S.E.2d 530 (1982).

Under the circumstances of the instant case, the officers

were justified in concluding that a conspiracy was ongo-

ing and that Petitioner Long was a participant in this

conspiracy. Thus, there was probable cause to arrest Pe-

titioner Long and due to the exigent cireumstances, there

was probable cause to search her person. Therefore, Pe-

titioner Long has shown no Fourth Amendment violation

by this allegation.

19

CONCLUSION

For all of the above and foregoing reasons, Respon-

dent respectfully prays that the petitions for writs of cer-

tiorari filed on behalf of the various Petitioners be denied.

Respectfully submitted,

Micuae. J. Bowers 071650

Attorney General

Marion O. Gorpon 302300

First Assistant Attorney General '

WituaM B. Hin, Jr. 354725

Senior Assistant Attorney General

Mary Bera WestMorELAND 750150

Assistant Attorney General

Mary Beru WestMorELAND

132 State Judicial Building

40 Capitol Square, S.W. 5

Atlanta, Georgia, 3033 b

(404) 656-3349 4

3

t

i

.

|

t

;