Bonds v. State

372 S.E.2d 448, 188 Ga. App. 135, 1988 Ga. App. LEXIS 926
CourtCourt of Appeals of Georgia
DecidedJuly 15, 1988
Docket76082
StatusPublished
Cited by20 cases

This text of 372 S.E.2d 448 (Bonds v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bonds v. State, 372 S.E.2d 448, 188 Ga. App. 135, 1988 Ga. App. LEXIS 926 (Ga. Ct. App. 1988).

Opinions

Beasley, Judge.

Frances Bonds was indicted in three counts, of possession and control, with intent to distribute, of over an ounce of marijuana (OCGA § 16-13-30 (j)); trafficking in cocaine by being in actual possession of more than 28 grams thereof (OCGA § 16-13-31 (a)); and possession and control of cocaine, with intent to distribute it (OCGA § 16-13-30 (b)). She was convicted of the latter two charges and of possession of less than an ounce of marijuana (OCGA § 16-13-2 (b)), a misdemeanor.

Appellant’s first and second enumerated errors are that the trial court erred in denying appellant’s motion to suppress and in overruling appellant’s objection to the introduction into evidence of items seized from appellant’s purse.

The following general principles of law apply: (a) this court cannot consider factual allegations in the briefs of the parties which are not supported by evidence contained in the record, Konscol v. Konscol, 151 Ga. App. 696 (1) (261 SE2d 438); (b) in reviewing a suppression motion or an objection made at trial to the admission of evidence, which was the result of an alleged illegal search or seizure, this court can consider all relevant evidence introduced at a pretrial hearing, an appropriate post-trial hearing, or at trial, Sanders v. State, 235 Ga. 425, 431-432 (219 SE2d 768); (c) the burden of proving that search and seizure were lawful rests with the State, see e.g., OCGA § 17-5-30 (b).

Certain items were found in Mrs. Bonds’ purse when it was searched in execution of a search warrant. The warrant was issued, with a “no-knock” provision, when the magistrate was satisfied by the detective’s affidavit that he had reason to believe that on Lenny Bonds “and any other persons on the (residential) premises who might reasonably be involved in” violations of the controlled substances act, there was presently being concealed marijuana and hashish. Challenged is the execution of the warrant, OCGA § 17-5-28, (not its issuance or its provisions) in terms of the Fourth and Fourteenth Amendments. No state constitutional claim is advanced so such will [136]*136not be addressed. See State v. Camp, 175 Ga. App. 591, 592 (1) (333 SE2d 896) (1985).

The affidavit for the warrant spelled out that an informant gave information that he had recently observed marijuana and hashish being stored at Lenny Bonds’ residence and that Lenny receives drugs from his father Linzie Bonds. The officer affiant stated that he and the informant saw a white Cadillac at the premises, which the informant said was Linzie’s. The officer also stated that he knew Linzie, that Linzie was known to be armed at times, and that the informant told him that Linzie keeps a pistol with him.

After the warrant was issued and before it was executed, the police watched Lenny Bonds’ home for several days. An unspecified number of people was observed visiting the premises, staying for a short time and leaving. One of the cars observed was a white Cadillac. It was reported that appellant and her husband would visit their son’s home several times a week.

When the police entered the residence after announcing their identity, Mrs. Bonds was sitting on the couch alone, with the purse a few inches away directly next to her. Since it was in her immediate area, it was seized to prevent her access to what was in it. It was not immediately searched because the officers first secured the premises by accounting for all occupants. In securing the premises so as to assure control of it and the occupants and in commencement of the warrant’s execution, it was then searched while the officer was just “a few feet, five or six” from her, so that the purse could be returned to her if its contents were innocent. In it, however, were a makeup-type bag which contained three plastic bags of white powder, one of them containing twelve smaller plastic bags of white powder and another containing ten plastic bags of white powder, and a hand-rolled cigarette; scales with white powder residue; a .38 caliber revolver; a digital beeper; and Mrs. Bonds’ driver’s license. The white powder was found to be constituted of about 50 percent cocaine and to weigh over 64 grams.

At the time the police entered, two teenage girls were also in the living room occupied by Mrs. Bonds, and her husband, Linzie Bonds, was in the hallway. Although the officer did not yet know at the moment of the purse search that she was Linzie’s wife, it was reasonable to believe that she had come with him since his white Cadillac was parked outside.

The officer testified that the purse was searched because it was in the premises to be searched and because of the nature of what was being searched for (marijuana and hashish); that is, it could be holding such items, since it was believed that contraband was being repeatedly brought into the premises by a man who was right then present. It was reasonable to believe that some of the drugs were [137]*137concealed in the purse for transport to the premises. As a matter of fact, that is exactly what Linzie testified had been done, demonstrating that it was not an unreasonable belief.

The very reason for the no-knock allowance, that is, easy concealment or destruction, gave reason as well for a search of the purse, because of the nature of what was sought by the warrant. The warrant sought evidence of illegal drug activities which, based on the affidavit regarding “storage,” perforce and as a matter of logic necessitated bringing drugs into the residence. This is similar to the relationship between information about ongoing sales at the premises and the “other persons” authorization upheld in Jenkins v. State, 184 Ga. App. 844 (363 SE2d 35) (1987). Thus a container then on the premises, capable of holding the evidence sought and having been brought by a person reasonably believed to be connected with the named source, had a nexus with the targeted criminal activities. See Blount v. State, 181 Ga. App. 330, 335 (4) (352 SE2d 220) (1986). The purse’s owner was not a “mere” visitor, as in Childers v. State, 158 Ga. App. 613 (281 SE2d 349) (1981), and Hawkins v. State, 165 Ga. App. 278 (300 SE2d 224) (1983). Importantly, the warrants in Childers v. State, supra, and Hawkins v. State, supra, did not contain language authorizing the search of other persons present on the premises who might reasonably be involved in the subject criminal activity.

During surveillance before the warrant was obtained, cars were seen coming and leaving the residence after short stops, and on this occasion, a person came to the door while the police were inside; he was searched and a controlled substance found. The officer knew there had been traffic to the residence that very day, and the police were particularly watching for Linzie Bonds’ white Cadillac, which was there when they went in.

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Bonds v. State
372 S.E.2d 448 (Court of Appeals of Georgia, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
372 S.E.2d 448, 188 Ga. App. 135, 1988 Ga. App. LEXIS 926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonds-v-state-gactapp-1988.