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198 Ga. App. 170

401 S.E.2d 57

State v. Harber

Court of Appeals of Georgia

Decided December 5, 1990

Court of Appeals of Georgia · decided 1990-12-05

Relies on 129 Ga. App. 660 - Reid v. State · 123 Ga. App. 659 - Pruitt v. State · 181 Ga. App. 324 - State v. Giangregorio

Good law ✅— No negative treatment on recordhow we know

Decided 1990-12-05

How this case has been cited

Cited by 7 later decisions — most recently July 2015

7 state decisions

30199020002010decided

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Banke, Presiding Judge,

¶1concurring in part and dissenting in part.

¶2The majority correctly distinguishes the present case from Hill v. State, 193 Ga. App. 280 (387 SE2d 582) (1989) (cert, den.), based on the trial court’s findings that the university police did not act alone in conducting the present search but were joined by three Clarke County detectives, one of whom made the initial entry into the residence with the warrant in hand. However, the court then goes on to overrule Hill, attributing to it a holding that university police are required to obtain *175local law enforcement assistance in obtaining as well as executing search warrants for premises located more than 500 yards off campus. While Hillmay have implied the existence of such a requirement, there was clearly no such holding in that case.

¶3The search at issue in Hillwas held to be unlawful not because of the mere failure of the university police to involve the local police in the process of obtaining the warrant but because of their failure to involve the local police in any aspect of the investigation. (Although a local policeman was present on the scene at the time of the commencement of the search in Hill, “he left shortly after entry was gained into the residence, and neither he nor any other local law enforcement officer was involved in obtaining the warrant or in conducting the investigation which led to its issuance.” Id. at 280.) Our holding that the search was unlawful under these circumstances was based upon a conclusion that the General Assembly had not intended through its enactment of OCGA § 20-3-72 to bestow upon university 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” (emphasis supplied) but rather had expressed “a legislative intention to limit the law enforcement jurisdiction of such personnel to offenses committed upon property under the jurisdiction of the Board of Regents or located within 500 yards of such property.” Id. at 281.

¶4Such a limitation on the powers of campus police is eminently reasonable in view of the fact that, unlike police officers employed by political subdivisions, they are not ultimately responsible to any elected official. Furthermore, contrary to the impression given by the majority opinion, the General Assembly in fact affirmed rather than disavowed the existence of such a limitation through its enactment of Ga. L. 1990, pp. 1980-82, for that legislation expressly limits, in a manner entirely consistent with Hill, the. authority of university police officers to execute search warrants for premises located off campus. Specifically, § 3 of the 1990 Act added a new subsection (d) to OCGA § 17-5-21 providing as follows: “Notwithstanding any provisions of Code section 17-5-20 or other provisions of this Code section to the contrary, with respect to the execution of a search warrant by a certified peace officer employed by a university, college, or school, which search warrant will be executed beyond the arrest jurisdiction of a campus policeman pursuant to Code Section 20-3-72, the execution of such search warrant shall be made jointly by the certified peace officer employed by a university, college, or school and a certified peace officer of a law enforcement unit of the political subdivision wherein the search will be conducted.” (Emphasis supplied.) Ga. L. 1990, p. 1982.

¶5Under the facts of the present case, I fully agree that the defend*176ant’s motion to suppress should have been denied. However, as I continue to believe that the Legislature never intended to give university police and security personnel carte blanche authority to conduct off-campus searches in cases where no university property is involved, I must dissent to the overruling of Hill.

¶6I am authorized to state that Judge Pope joins in this opinion as to the dissent.

Sognier, Judge,

¶7dissenting.

¶8I respectfully dissent because I believe Hill v. State, 193 Ga. App. 280 (387 SE2d 582) (1989) was correctly decided. The facts in Hillparallel those in the case at bar. In Hill, the defendants, two University of Georgia students, were convicted of drug offenses arising from possession of contraband found during a search of their off-campus apartment by university police. In overruling the denial of the defendants’ motion to suppress, this court held that because OCGA § 20-3-72 authorized university system police to make arrests “for offenses committed upon any property under the jurisdiction of the board of regents and for offenses committed upon any public or private property within 500 yards of any property under the jurisdiction of the board,” search warrants likewise “ ‘must be confined to the territorial limits of the campus.’ [Cit.]” Hill, supra at 281. I recognize that the university police officers who conducted the searches at issue were certified peace officers, as were the officers in Hill, and OCGA § 17-5-24 has been construed to authorize the execution of a search warrant by a certified peace officer outside his arrest jurisdiction. Bruce v. State, 183 Ga. App. 653 (359 SE2d 736) (1987). Nonetheless, a certified peace officer’s authority arises only from express statutory authorization or by virtue of public employment or service. OCGA § 35-8-2 (8) (A). Unlike university system police, other law enforcement officers authorized under Georgia law are given a number of specified duties and powers in addition to the power to arrest. See OCGA § 35-2-33 (state patrol); OCGA § 36-8-5 (county police); OCGA § 35-3-8 (GBI agents); OCGA § 35-3-9 (GBI narcotics agents). In contrast, OCGA § 20-3-72, which was enacted in 1966 (Ga. L. 1966, p. 370), and is codified in the postsecondary education chapter of Title 20, is the only statute that specifically grants any law enforcement power to university system police. Accordingly, any authority of such officers beyond that specified in OCGA § 20-3-72 must arise from the general power of the board of regents to create and regulate universities. See Ga. Const., Art. VIII, Sec. IV, Par. I; OCGA § 20-3-20 et seq. There is no other statute in Title 20, Chapter 3, Article 2 or elsewhere in our Code which grants to the board of regents any police powers beyond the territorial limits of the university system. Since university system police have no express statutory authority beyond university system *177property, and their employer, the board of regents, does not have the authority to grant such powers, I cannot construe the peace officer certification provisions to authorize university system police to exercise law enforcement powers beyond the territorial limits established by OCGA § 20-3-72.

¶9Contrary to the majority’s assertion, the holding in Hillis consistent with the 1990 amendments to OCGA §§ 17-5-20 and 17-5-21. OCGA § 17-5-20 was rewritten to provide in paragraph (a) 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 or a currently certified peace officer engaged in the course of official duty, whether said officer is employed by a law enforcement unit of: (1) [t]he state or a political subdivision of the state; or (2) [a] university, college, or school.” The 1990 revision to OCGA § 17-5-21 included the addition of a new paragraph (d) providing that when a campus police officer executes a search warrant by campus police “beyond the arrest jurisdiction of a campus policeman pursuant to Code Section 20-3-72, the execution of such search warrant shall be made jointly by the certified peace officer employed by a university . . . and a certified peace officer of a law enforcement unit of the political subdivision wherein the search will be conducted.” These revisions, although including campus police in the search and seizure laws for the first time, indicate that the General Assembly retained an express distinction between certified peace officers employed by a college or university and other certified peace officers, and did not elect to extend to campus police authority equal to that possessed by law enforcement officers of the state or its political subdivisions.

¶10I also cannot agree that the university police officers’ lack of authority to execute the search warrant was a mere “technical irregularity.” This court has held that a search warrant obtained by an officer who is not authorized to exercise such powers is invalid and the fruits of the search must be suppressed. Holstein v. State, 183 Ga. App. 610 (359 SE2d 360) (1987). Accord Reid v. State, 129 Ga. App. 660 (2) (a) (200 SE2d 456) (1973). State v. Giangregorio, 181 Ga. App. 324 (352 SE2d 193) (1986), cited by the majority, is not applicable because it involved the validity of an arrest, and the four-judge plurality concluded the defendant’s constitutional rights were not violated because a felony arrest may be made by a private citizen. In contrast, Georgia law expressly precludes the issuance of a search warrant to a private citizen. OCGA § 17-5-20 (b).

¶11This court has long recognized that “ ‘ “[proceedings for the issuance of search warrants are to be strictly construed, and every constitutional and statutory requirement must be fully met, including all formalities required by statute, before a valid search warrant may is*178sue. Moreover, a statute prescribing the method of issuing search warrants must be read and construed in the light of, and conform in all essential respects to, the provisions of the constitution granting immunity from unreasonable searches and seizures.” [Cit.] It should be borne in mind that here we are dealing with a valuable guaranty, a part of the Bill of Rights, the subject matter of the Fourth Amendment to our national Constitution, and embodied in the Georgia Constitution. We, who have this right, must carefully guard it against infringement.’ ” Pruitt v. State, 123 Ga. App. 659, 664 (182 SE2d 142) (1971). I find the decision in Hillto be consistent with these principles, and accordingly would affirm the decision of the trial court.

Decided December 5, 1990Rehearing denied December 20, 1990Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellant.Cook, Noell, Tolley & Aldridge, Edward D. Tolley, for appellee.

¶12I am authorized to state that Judge Pope joins in this dissent.

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