Hunt v. State

348 S.E.2d 467, 180 Ga. App. 103, 1986 Ga. App. LEXIS 2675
CourtCourt of Appeals of Georgia
DecidedJuly 3, 1986
Docket72142
StatusPublished
Cited by12 cases

This text of 348 S.E.2d 467 (Hunt 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
Hunt v. State, 348 S.E.2d 467, 180 Ga. App. 103, 1986 Ga. App. LEXIS 2675 (Ga. Ct. App. 1986).

Opinions

Beasley, Judge.

Defendants Larry David Kirkman, Linda Kierce, Robert Hunt, and his wife Mary were convicted by a jury of child molestation (OCGA § 16-6-4) in that they made “sexual contact of a provoking nature one with another while undressed and exposing their sexual organs in the presence of (the Hunts’ then 4-year-old daughter) . . . with the intent to satisfy (their) sexual desires. . . .” Robert Hunt was also convicted of a second count of child molestation. The charges stem from a Wicca religious ceremony involving witchcraft and nudity. The motion for new trial was denied and defendants appeal.

1. The first claimed error is the court’s overruling of defendants’ [104]*104motion to suppress the evidence seized pursuant to a search warrant executed at the home following their arrest. They contend that their Fourth Amendment rights were violated because the search exceeded the scope of what was called for in the warrant and that even what was called for in the warrant was not described with sufficient particularity.

The search warrant authorized a search of the house for the following items as evidence of the crime of child molestation: “Articles of clothing worn during a ceremony involving child molestation, namely: gown with an upside down star embroidered on it; material used as an alter (sic) for the ceremony; incense and candles used during the ceremony; books or manuals used or referred to for said ceremony which are evidence of the ceremony of child molestation occurring once a month during the new moon.”

The court granted the motion in part, limiting admissible items to those described in the warrant. At trial the state introduced into evidence a robe with an embroidered pentagram, or upside down star, a witchcraft prayer book allegedly used during religious ceremonies, and a painting which had hung over a large chest of drawers described as the altar. The painting depicted a blond woman and a pentagram.

The items not suppressed should have fallen, appellants argue, because they were not particularly described in the search warrant, as required by Marron v. United States, 275 U. S. 192, 196 (48 SC 74, 72 LE 231) (1927), insofar as the Fourth Amendment goes, and as required by OCGA § 17-5-23. The state statute contains the same “particular description” language as in the Fourth Amendment, and appellants do not contend that a different degree of particularity is mandated by the state statute. Nor do we address that point, as it was not raised.

We note, however, that somewhat of a distinction has been made between the federal constitution’s requirement of particularity and that mandated by the state constitution, now Ga. Const. 1983, Art. I, Sec. I, Par. XIII. In Lockhart v. State, 166 Ga. App. 555, 557 (305 SE2d 22) (1983), the state and federal constitutional provisions were being applied conjointly for the proposition that “the constitutional requirement that warrants must particularly describe the ‘things to be seized’ is to be accorded the most scrupulous exactitude . . .,” quoting from Stanford v. Texas, 379 U. S. 476, 485 (85 SC 506, 13 LE2d 431) (1965). A complete quote from Stanford, in context, would show that the Supreme Court there was referring to books when the basis for their seizure is the ideas they contain, and thus First Amendment considerations also moderated. Our court in Lockhart did not give this narrower coverage but adopted the “scrupulous exactitude” language for all warrants, thus presumably so construing [105]*105the state constitution. Appellants are not claiming a violation of state constitutional law rights. Of course the state could not afford less protection. Michigan v. Long, 463 U. S. 1032 (103 SC 3469, 77 LE2d 1201) (1983); State v. Camp, 175 Ga. App. 591, 593 (1) (333 SE2d 896) (1985).

Comparing what was specified in the warrant with what was not suppressed but admitted in evidence at trial, the warrant manifests a sufficient degree of particularity so that the officers would know what they were searching for. Analogizing what is to be seized with what is to be searched, “ ‘[t]he test for the sufficiency of . . . description is whether “. . . on its face it enables a prudent officer executing the warrant to locate [it] definitely and with reasonable certainty.” ’ ” State v. Hardin, 174 Ga. App. 83 (329 SE2d 172) (1985). “The warrant must describe the items to be seized with such particularity as to enable a prudent officer executing the warrant to seize the things with ‘reasonable certainty.’ ” Tyler v. State, 176 Ga. App. 96, 97 (1) (335 SE2d 691) (1985).

Appellants have not argued separately that the painting did not fall within the language of the search warrant, apparently conceding that it is covered by the “material used as an altar for the ceremony” category. “(W)hen circumstances make an exact description of instrumentalities a virtual impossibility, the searching officer can only be expected to describe the generic class of items he is seeking. [Cits.]” Evans v. State, 161 Ga. App. 468, 470 (1) (288 SE2d 726) (1982); Butler v. State, 130 Ga. App. 469, 473 (203 SE2d 558) (1973); Tyler, supra at 97. These state cases apply federal constitutional law.

Appellants especially complain about the book, asserting that Stanford v. Texas, 379 U. S. 476, 485, supra, requires “the most scrupulous exactitude when the ‘things’ are books, and the basis for their seizure is the ideas which they contain.” But as pointed out in Stanford, this is because the First Amendment is involved when what is to be prosecuted is the ideas in the books. Such is not the case here, where the book was merely being used as evidence that such ceremonies had occurred. The ideas set forth in the book were not the subject of the prosecution. The Court in Stanford recognized the distinction: “A ‘book’ which is no more than a ledger of an unlawful enterprise thus might stand on a quite different constitutional footing from the books involved in the present case. . . .” Id. at 485, note 16. Nevertheless, the books to be seized were described with circumspection so as to relate to a narrow type of material that would be relevant proof and contribute to a showing that child molestation had been committed. And that is all that survived the motion to suppress insofar as writings were concerned.

Apparently appellants also contend that all of the evidence seized should have been suppressed since some was found to have [106]*106been beyond the scope of the warrant. However, no authority is cited for this suggestion of total eclipse, and we know of none. Where some of the evidence is seized unlawfully and some in compliance with a non-“general” warrant’s commands, that which was lawfully seized need not be suppressed. Andresen v. Maryland, 427 U. S. 463, 478-484 (3) (96 SC 2737, 49 LE2d 627) (1976).

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Hunt v. State
348 S.E.2d 467 (Court of Appeals of Georgia, 1986)

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Bluebook (online)
348 S.E.2d 467, 180 Ga. App. 103, 1986 Ga. App. LEXIS 2675, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunt-v-state-gactapp-1986.