196 Ga. App. 634 - Seaman v. State

How this case has been cited

Cited by 4 later decisions — most recently January 2016

2 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

Pope, Judge,

¶1dissenting.

¶2I must dissent. I would affirm the forfeiture.

¶31. “Contraband per se is subject to seizure or forfeiture. An article is deemed to be contraband per se if its possession is illegal.” W. Daniel, Ga. Crim. Trial Practice (1989), § 10-2 at 267-268. The videotapes upon which defendant’s conviction rests are contraband. OCGA §§ 16-12-80; 16-12-83. “Derivative contraband is property whose possession is legal but which has been forfeited because used in an illegal manner. A classic example is a vehicle which has been used to transport contraband liquor.” Blackmon v. B.P.O.E., 232 Ga. 671, 672 (1) (208 SE2d 483) (1974). Possession of the VCRs obviously is legal. Even using the VCRs to view obscene material in the privacy of one’s home is legal. Warshaw v. Eastman Kodak Co., 148 Ga. App. 670 (3A) (252 SE2d 182) (1979). However, use of the machines in a scheme to distribute obscene material is illegal. Thus, the machines are derivative contraband subject to forfeiture.

¶42. Defendant argues that the notice of hearing did not comply with due process because he had only one day’s notice of the hearing. However, defendant does not show how he was harmed. The record shows that he was present with counsel at the hearing and was heard. Nothing in the record shows that defendant objected to the notice or procedure followed for the hearing. Therefore, we have nothing to review. See Brown v. Thomas, 191 Ga. App. 679, 680 (1) (382 SE2d 656) (1989).

¶5I am authorized to state that Presiding Judge Deen, Presiding Judge McMurray and Presiding Judge Banke join in this dissent.