Opinion
41701.
ARGUED JANUARY 5, 1966.
DECIDED APRIL 18, 1966. REHEARING DENIED MAY 4, 1966.
Gambling, etc. Fulton Superior Court. Before Judge Pharr.
Wesley R. Asinof, for appellants.
Lewis R. Slaton, Solicitor General, J. Walter LeCraw, William E. Spence, Solicitor, Hinson McAuliffe, Frank A. Bowers, Carter Goode, for appellee.
At the time the Constitution was adopted, stolen or forfeited property, or property liable to duties, and concealed to avoid payment of them, excisable articles, and books required by law to be kept with respect to them, counterfeit coin, burglar's tools and weapons, implements of gambling, and many other things of like character might be searched for in home or office, and, if found, might be seized under search warrants lawfully applied for, issued and executed.
ARGUED JANUARY 5, 1966 — DECIDED APRIL 18, 1966 — REHEARING DENIED MAY 4, 1966 — CERT. APPLIED FOR.
Ellenburg and others were indicted for gambling by soliciting bets and wagers on the results of football games. On the trial of the case evidence was offered as to the seizure of "flash paper" with which papers on a desk were ignited by the defendants, together with sheets of paper showing odds on football games and lists of wagers accepted, cash, a pill, utility bills, 2 portable radios, a lighter, and federal wagering tax forms. Following conviction, the defendants certioraried the case to the Superior Court of Fulton County, contending that the search warrant, by means of which peace officers entered the premises, was void because executed for an unauthorized purpose. The warrant directed the peace officers to search the premises for "records, money, and other bookmaking paraphernalia described in the affidavit" in support of the criminal charge. The affidavit, signed by an assistant to the solicitor general, recited the method of soliciting bets on athletic contests, that defendants were operating a bookmaking establishment on the premises and had concealed therein certain paraphernalia including records and bets, names of betters and amounts and financial records showing the status of the bookmaking business, together with flash paper to be used in destroying records and large sums of money representing wagers. The denial of the petition for certiorari is the basis of this appeal.
"A search warrant may be issued only for the making of a search authorized at common law or by statute." Johnson v. State, 111 Ga. App. 298, 302 ( 141 S.E.2d 574). Prior to the Search and Seizure Act of 1966 (Ga. L. 1966, p. 567), there was no statute expressly authorizing the issuance of a search warrant for the implements of gambling. The common law of Georgia is "the Common Law of England, and such of the Statute Laws as were usually in force before the Revolution, with the following limitations" — the prohibitions of the Constitution of the United States, the Georgia Constitution and the statutes of this State. Flint River Steamboat Co. v. Foster, 5 Ga. 194 (5).
The defendants contend that at the time of the Revolution the law did not authorize the issuance of a search warrant for gambling implements. We disagree. A unanimous opinion of the Supreme Court of the United States declares: ". . . at the time the Constitution was adopted, stolen or forfeited property, or property liable to duties, and concealed to avoid payment of them, excisable articles, and books required by law to be kept with respect to them, counterfeit coin, burglar's tools and weapons, implements of gambling, and many other things of like character might be searched for in home or office, and, if found, might be seized under search warrants lawfully applied for, issued and executed." Gouled v. United States, 255 U.S. 298, 308 ( 41 SC 261, 65 LE 647); 79 CJS 827, § 64, n. 89. The basic reason the law allowed the issuance of these warrants was that ". . . the citizen was for some reason not entitled to possess the property." Kaplan, Search and Seizure: A No-Man's Land in the Criminal Law, 49 Calif. L. Rev. 474, 475. See also 2 Hale, Pleas of the Crown, 149 (Stokes and Ingersoll Ed. 1847). Accord Kneeland v. Connally, 70 Ga. 424; Smoot v. State, 160 Ga. 744 ( 128 S.E. 909, 41 ALR 1533); Health Sales Co. v. Bloodworth, 221 Ga. 567 ( 146 S.E.2d 275). The Supreme Court of New Jersey has held that the authority to issue this type of warrant ". . . is implicit in the judicial power." Eleuteri v. Richman, 26 N.J. 506 ( 141 A.2d 46); State v. Macri, 39 N. J. 250 ( 188 A.2d 389). This power has been exercised by our Georgia Courts for almost two hundred years.
The decision in Mapp v. Ohio, 367 U.S. 643 ( 81 SC 1684, 6 L.Ed.2d 1081), imposes no constitutional problem. In a later case, Ker v. California, 374 U.S. 23 ( 83 SC 1623, 10 L.Ed.2d 726), the Supreme Court was more explicit as to the Mapp doctrine and Federal-State relations. That court stated that there was to be no assumption by it of "supervisory authority over state courts," nor did Mapp imply "total obliteration of state laws relating to arrests and seizures in favor of federal law." Both federal and state systems can take their own approach so long as each respects the same "fundamental criteria." From the above, it would seem that the Supreme Court is not concerned with whether a search warrant is issued pursuant to statute or the common law authority of the state judiciary. The phrase "fundamental criteria" is concerned with whether the warrant was issued "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized" (Constitution of the United States, Amendment IV), and whether it was executed in a reasonable manner.
Judgment affirmed. Nichols, P. J., and Deen, J., concur.