Doe v. State

364 S.E.2d 78, 185 Ga. App. 347, 1987 Ga. App. LEXIS 2522

• Court: Court of Appeals of Georgia
• Decided: December 2, 1987
• Docket: 74513
• Status: Published

Opinions

McMurray, Presiding Judge.

On April 28, 1986, a search warrant was issued for the seizure of blood and urine specimens which the Rockdale County Hospital had taken from the body of John Doe on February 27, 1986. Two days later, the hospital filed a “motion to quash” the search warrant on the grounds, inter alia, that the specimens constitute confidential information which is protected by federal regulations governing the records of alcohol and drug abuse patients. John Doe joined the battle via a “motion to intervene and motion to quash.” Therein, he asserted that the warrant was constitutionally defective and that it violated his Fourth Amendment rights. He also asserted that the specimens constituted confidential information which could not be seized in the absence of compliance with federal regulations. On May 9, 1986, the trial court determined that John Doe did not have standing to quash the search warrant. The court pointed out that he could move to suppress the fruits of the search at a later time if such a motion became necessary. With regard to the hospital, the trial court stated that in order to obtain the specimens, the State should comply with the federal regulations set forth in 42 CFR Section 2.1 et seq. (confidentiality of alcohol and drug abuse patient records).

Thereafter, on May 15, 1986, the State filed an “application for court order to authorize disclosure of hospital records.” Following a hearing upon the State’s application, the trial court determined that the federal regulations do not apply after all. On November 24, 1986, the court granted the State’s application and directed the hospital to comply with the search warrant. The trial court certified its order for immediate review and John Doe made application for interlocutory appeal. The application was denied by this court on January 2, 1987. In the meantime, John Doe filed a notice of appeal and this direct appeal followed. Held:

1. We are without jurisdiction to entertain this appeal and it must, therefore, be dismissed. We find no provision in the laws of this State authorizing an attack upon a search warrant which has not been executed (i.e., where no evidence has been seized pursuant to the warrant). Moreover, appeals from orders overruling such attacks have not been authorized. See generally B.T. Productions v. Barr, 388 NYS2d 483, 486 (1976). Of course, when evidence is seized pursuant to the execution of a search warrant and it is unlawfully seized, a motion to suppress will lie. OCGA § 17-5-30 (a). But such a motion is not ripe unless evidence is obtained pursuant to the warrant. In the case sub judice, no evidence has been obtained pursuant to the search warrant. Accordingly, any attack upon the warrant must be deemed premature.

Even if we construed appellant’s attack upon the search warrant as a motion to suppress, we would still be compelled to dismiss this appeal. An order denying a motion to suppress cannot be appealed directly. Such an order is not a final judgment and must be reviewed under the interlocutory appeal procedure. Holton v. State, 173 Ga. App. 249 (326 SE2d 240); Cody v. State, 116 Ga. App. 331 (157 SE2d 496). Compare OCGA § 5-7-1.

2. The motion to assess a frivolous appeal penalty is denied.

Appeal dismissed.

Birdsong, C. J., Deen, P. J., Sognier and Pope, JJ., concur. Deen, P. J., and Pope, J., also concur specially. Banke, P. J., and Carley, J., concur specially. Benham and Beasley, JJ., dissent.