State v. Harber

401 S.E.2d 57, 198 Ga. App. 170, 1990 Ga. App. LEXIS 1565

• Court: Court of Appeals of Georgia
• Decided: December 5, 1990
• Docket: A90A1077
• Status: Published

Opinions

Carley, Chief Judge.

Appellee was indicted for two counts of violating the Georgia Controlled Substances Act and he filed a pre-trial motion to suppress. The trial court, relying upon Hill v. State, 193 Ga. App. 280 (387 SE2d 582) (1989), granted appellee’s motion and the State appeals from that order.

1. The issue as presented in Hill v. State, supra at 280, was whether “campus police lacked the authority to obtain and execute a search warrant for a residence located more than 500 yards off campus.” Relying upon OCGA § 20-3-72 and Op. Atty. Gen. 70-69, it was held “that the legislature [had not] intended to give to University of Georgia campus police and security personnel carte blanche authority to obtain and execute search warrants directed to residences or businesses located outside the immediate vicinity of university property.” Hill v. State, supra at 281. It is this holding that must be followed, distinguished or overruled in the instant case.

By its terms, OCGA § 20-3-72 relates only to the territorial authority of campus police officers to make an arrest. In this regard, campus police officers are essentially no different from county and municipal police officers whose authority to make an arrest may otherwise be subject to similar territorial restrictions. See generally OCGA §§ 36-8-5; 40-13-30. However, it is not the territorial authority of campus police officers to make an arrest that is in question. The issue is the territorial authority of campus police officers to obtain and execute a search warrant. Nothing in OCGA § 20-3-72 purports to address this issue.

Former OCGA § 17-5-20 is the relevant statute with regard to the authority to obtain a search warrant. That statute provided that “[a] search warrant may be issued only upon the application of an officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws.” (Emphasis supplied.) As employed in this former Code section, an “officer of this state” refers to one who has been authorized by the State to enforce its criminal laws and who has received certification pursuant to the Georgia Peace Officer Standards & Training Act. Holstein v. State, 183 Ga. App. 610 (359 SE2d 360) (1987). It is clear that such an “officer of this state” does have the authority to obtain a search warrant even though it may be directed at locations which lie outside the boundaries of the particular political subdivision that employs him. Bruce v. State, 183 Ga. App. 653 (359 SE2d 736) (1987). In the instant case, it is undisputed that those campus officers who obtained the search warrant directed at appellee’s residence were authorized by the State to enforce its laws and that they were also duly certified pursuant to the Georgia Peace Officer Standards & Training Act. Accordingly, pretermitting any territorial limitation on the authority of these duly certified campus police officers to make an arrest of appellee pursuant to OCGA § 20-3-72, it seems clear that there is no comparable territorial limitation on their authority to obtain a search warrant directed at appellee’s residence pursuant to former OCGA § 17-5-20. It would be anomalous to hold that a certified municipal or county police “officer” is authorized to obtain an extra-territorial search warrant notwithstanding any statutory restriction on his authority to make an extra-territorial arrest, but that a certified campus police “officer” is not so authorized because of a comparable statutory restriction on his authority to make an extra-territorial arrest.

There is no statutory authority to support a contrary construction of the authority of a duly certified campus police officer to obtain an extra-territorial search warrant. The only authority to the contrary is this court’s decision in Hill v. State, supra. However, Hill relied entirely upon Op. Atty. Gen. 70-69 and that reliance was misplaced. The 1970 opinion of the Attorney General did not specifically address the authority to obtain an extra-territorial search warrant of a duly certified campus police officer. In this regard, it is important to note that the 1970 opinion of the Attorney General was issued before it had been judicially determined that a duly certified county or municipal officer, as an “officer of this state,” does have the authority to obtain an extra-territorial search warrant notwithstanding his lack of authority to make an extra-territorial arrest. Fowler v. State, 128 Ga. App. 501, 503 (c) (197 SE2d 502) (1973); Bruce v. State, supra. Likewise, the 1970 opinion of the Attorney General was issued before the legislature specifically authorized a campus policeman to obtain certification and thereby become an “officer of this state.” See OCGA § 20-8-1 et seq. Although campus policemen of the university system are exempt from any requirement of certification, there is nothing in the statute which prohibits them from seeking and obtaining such certification. See OCGA § 20-8-4.

Accordingly, Hill v. State, supra, erroneously relied upon the 1970 opinion of the Attorney General rather than subsequent judicial and statutory authority and, as the result, OCGA § 20-3-72 was misconstrued as evincing anything other than a mere expression of the legislative intent that the authority of campus police officers, whether certified or not, to make an arrest is to be subject to a territorial limitation comparable to that which is applicable to county and municipal officers. That Hill did in fact err in relying upon the 1970 opinion of the Attorney General rather than subsequent judicial and statutory authority and consequently miscontrued OCGA § 20-3-72 as also evincing the legislative intent to create a territorial limitation on the authority of certified campus police officers to obtain a search warrant is given further support by the General Assembly’s own response to that decision. In 1990, the legislature undertook “to clarify the authority of peace officers employed by universities ... to apply for search warrants” and “to make manifest the intention of the General Assembly that peace officers who have met the standards established by the Georgia Peace Officer Standards and Training Councils . . . shall be authorized to apply for and obtain search warrants. . . .” (Emphasis supplied.) Ga. L. 1990, p. 1980. The General Assembly apparently found it necessary to enact legislation to clarify and make its intent manifest because Hill had misconstrued the legislative intent of the then-existing legislation on the subject. Accordingly, Hill is hereby overruled insofar as it holds that certified campus police officers who obtained an extra-territorial search warrant directed at locations more than 500 yards from campus property were not authorized to do so under former OCGA § 17-5-20.

Insofar as the execution of the search warrant is concerned, Hill v. State, supra, is factually distinguishable. In that case, “an officer from the Athens Police Department accompanied the campus police on the raid, [but] he left shortly after entry was gained into the residence. . . .” Hill v. State, supra at 280. In the instant case, however, the trial court specifically found: “A warrant to search the residence of [appellant] was obtained ... by ... a police officer employed by the University of Georgia Police Department. The search warrant was executed by detectives of the University of Georgia Police Department and three Clarke County detectives. A Clarke County detective actually entered with the warrant in hand, but the search of the premises was completed by only the University of Georgia Police.” (Emphasis supplied.) The mere fact that the actual physical acts entailed in conducting the search of the premises may have been performed by the certified campus police officers does not demonstrate that the search warrant itself was not executed jointly with the certified Clarke County officers. See generally Bradford v. State, 184 Ga. App. 459 (361 SE2d 838) (1987). There is no authority for the proposition that officers who are on the premises pursuant to a search warrant but who do not actually conduct the physical search of the premises are not participants in the joint execution of the warrant. To the contrary, “execution” of a search warrant may encompass more than the mere conduction of the actual search of the premises, and all of those officers who are on the premises are participating in the joint execution of the warrant. See OCGA § 17-5-28. Since Hill is factually distinguishable, we need not decide whether it also erroneously held that there was a requirement for joint execution of a search warrant prior to the effective date of existing OCGA § 17-5-21 (d).

In conclusion, Hill v. State, supra, is overruled as authority for the proposition that the instant search warrant was illegally obtained and it is distinguished as authority for the proposition that the instant search warrant was illegally executed. It follows that the trial court erred in granting appellee’s motion to suppress.

2. Even if the officers were not authorized to obtain and execute an extra-territorial search warrant, this lack of authority would constitute no more than a mere “technical” defect. In State v. Giangregorio, 181 Ga. App. 324, 325 (352 SE2d 193) (1986), we reversed the grant of a motion to suppress and held that an officer’s lack of authority to make an extra-territorial arrest was a mere “ ‘technical irregularity not affecting the substantial rights of the accused.’ ” There would appear to be no reason why that rationale is not equally applicable in the instant case. No “substantial rights” of appellee under the Fourth Amendment have been affected, since the warrant was issued by a neutral and detached judicial officer who was otherwise authorized to find the existence of probable cause based upon the affidavit that the officers presented to him. Compare Reid v. State, 129 Ga. App. 660 (2a) (200 SE2d 456) (1973); Pruitt v. State, 123 Ga. App. 659 (182 SE2d 142) (1971). Likewise, no “substantial rights” of appellee under applicable state statutory provisions are affected, since the warrant was not obtained and executed by private citizens for personal reasons, but by certified officers who were otherwise authorized to obtain and execute search warrants for reasons of law enforcement. Compare Holstein v. State, supra.

The officers’ mere lack of authority to obtain and execute an extra-territorial search warrant would certainly constitute no more of an infringement upon appellee’s “substantial rights” and no less of a “technical” defect than would the lack of probable cause to support issuance of the warrant. However, the lack of probable cause is not considered to be such a “defect” as will, in all cases, necessarily justify the grant of a motion to suppress evidence that has been seized pursuant to a search warrant. See Debey v. State, 192 Ga. App. 512 (385 SE2d 694) (1989).

Even under the appellee’s analysis, the warrant in the instant case was issued on probable cause and in substantial, if not literal, compliance with all statutory requirements and, therefore, there are simply no “substantial rights” of his to be vindicated by granting the motion to suppress. The mere fact that the warrant may have been directed at a location which was beyond the territorial limits of the jurisdiction wherein the officers had law enforcement authority is a defect which should not serve as the “technical” predicate for allowing appellee to evade prosecution for the criminal act that he allegedly committed.

Judgment reversed.

Deen, P. J., McMurray, P. J., Birdsong, Beasley and Cooper, JJ., concur. Banke, P. J., concurs in part and dissents in part. Sognier and Pope, JJ., dissent.