Thomason v. State

251 S.E.2d 598, 148 Ga. App. 513, 1978 Ga. App. LEXIS 3204

Opinions

Webb, Judge.

Ronnie and Linda Thomason appeal from their convictions of violating the Controlled Substances Act (Code Ann. § 79A-801 et seq.), complaining of the denial of the motion to suppress evidence and other similar rulings. We reverse.

An officer appeared before justice of the peace McKeehan for the purpose of obtaining a search warrant and, after its issuance, Judge McKeehan and eight officers, together with a dog named "Satan,” combined in several automobiles, one of which was owned by Judge McKeehan, and converged upon the Thomasons’ residence at 1 a.m. While the search was in progress Judge McKeehan moved about observing the procedure and the items being seized, conversing with the officers as well as with Linda Thomason, and remaining for 1 1/2 hours until the search was concluded, whereupon he prepared arrest warrants for the Thomasons.

Argued November 6, 1978 Decided December 5, 1978 Rehearing denied December 19, 1978 Cook & Palmour, Bobby Lee Cook, Sr., Kinney, Kemp, Pickell, Avrett & Sponcler, F. Gregory Melton, for appellants. Charles A. Pannell, Jr., District Attorney, James E. Bethel, Assistant District Attorney, for appellee.

We find this impermissible. As we recently held, "[t]he rule under the Fourth Amendment that a warrant be issued by a neutral and detached magistrate requires severance and disengagement from activities of law enforcement.” Baggett v. State, 132 Ga. App. 266 (208 SE2d 23) (1974), citing Shadwick v. City of Tampa, 407 U. S. 345 (92 SC 2119, 32 LE2d 783) (1972), and applying the per se rule of disqualification of Coolidge v. New Hampshire, 403 U. S. 443 (91 SC 2022, 29 LE2d 564) (1971).

While the state contends that the instant case is saved from the operation of the rule by evidence that Judge McKeehan went along on this raid to determine whether there was probable cause for the issuance of additional search warrants, we need consider this contention no further since it appears from the record that this was not an isolated incident but part of an ongoing practice. To our minds this so conveys the impression that Judge McKeehan had "thrown in” with officers of the law as to negate any possibility of a finding of "severance and disengagement from activities of law enforcement” (Shadwick v. City of Tampa, 407 U. S. 345, 350, supra), and the trial court erred in so ruling. Accord, State v. Guhl, 140 Ga. App. 23 (230 SE2d 22) (1976).

Judgment reversed.

Bell, C. J.,Deen, P. J., Quillian, P. J., Smith, Shulman, Banke and Birdsong, JJ., concur. McMurray, J., dissents.