Opinion
46207.
ARGUED MAY 4, 1971.
DECIDED JUNE 4, 1971.
Possessing drugs. Dougherty Superior Court. Before Judge Kelley.
Hobart M. Hind, for appellant.
Robert W. Reynolds, District Attorney, for appellee.
A search warrant directed to a room in either one or another of two motels at different addresses in the same city and identified only by the statement that they will be registered in the name of a specified person will not authorize a search of two motel rooms in one of the motels registered in the name of another person not identified in the warrant.
ARGUED MAY 4, 1971 — DECIDED JUNE 4, 1971.
Two motel rooms in the Howard Johnson Motel of Albany, Georgia, contiguous but not interconnecting, were searched on the night of October 23, 1970, by virtue of a search warrant which issued on October 22, and after the rooms had been kept under surveillance for about 25 hours. Heroin was recovered. The affidavit in support of the warrant sets out that affiant has reason to believe various narcotics are concealed ". . . on the person of Adell Williams, [giving a physical description] and . . . on the premises known as a rented room in the Howard Johnson Motel located at 303 East Oglethorpe Ave., Dougherty County, Georgia (room number unavailable at present) or a rented room in the Downtowner Motor Inn located at 732 West Oglethorpe Ave., Dougherty County, Georgia (room number unavailable at present). Either of the above-listed rented rooms will be in the name of the above-listed subject . . . on October 21, 1970, this affiant received a telephone call from a confidential and reliable informant who has proven his reliability in the past by furnishing information to the undersigned affiant that has resulted in four narcotic arrests in the past ten months, the seizure of narcotic drugs and also two burglary arrests that resulted in the recovery of approx. $1,000 worth of property (stolen). The above listed informant advised that he was to purchase a quantity of heroin from a suspected pusher. The informant was given marked money and kept under continued observation by the affiant and investigator H. S. Murphy. At 10:10 p. m., October 21, 1970, the undersigned affiant arrested two colored males at a South Jackson St. address in Dougherty County, Georgia, and found them in possession of a quantity of suspected heroin and suspected marijuana. During an interview of the arrested subjects it was learned that their connection (the herein listed Adell Williams) was to arrive in Dougherty County, Georgia, on October 22, 1970, and was to bring to these subjects a large quantity of heroin and marijuana. This quantity was to be in excess of $3,000. One of the arrested subjects stated to this affiant that he has purchased narcotics from Adell Williams and that the arrested subject was to rent the motel room where the narcotics would be kept. The exact room number will be furnished to this affiant before the search warrant will be served."
The warrant states that, the judge is "satisfied that there is probable cause to believe that the property so described is being concealed on the person and premises above described," referring to the person of Adell Williams and the premises of either one or the other of the motels: "either of the above listed rented rooms will be in the name of the above listed subject," again referring to Williams. (Emphasis supplied).
Two rooms in the Howard Johnson Motel were in fact searched and Adell Williams, the defendant, and others were arrested. The rooms were rented not in the name of Williams but in that of Willie Roy Thomas, which evidence on the motion to suppress shows to have been an unidentified "arrested subject" referred to in the affidavit.
We agree with the defendant that the "place to be searched" is an unidentified room in one of two motels, and that there are a total of 111 rooms to which this description might possibly refer.
A premises description is sufficient if on its face it enables a prudent officer executing the warrant to locate the person and place definitely and with reasonable certainty. Adams v. State, 123 Ga. App. 206 ( 180 S.E.2d 262) and cit. In Adams, even though the street number was incorrectly shown, the apartment complex, building, apartment and tenant were given in such manner that the total description could refer to only one apartment and did that with specificity. In Fomby v. State, 120 Ga. App. 387 ( 170 S.E.2d 585), the person to be searched and his automobiles were specifically described and the "vicinity" where the cars might be. An automobile, of course, has somewhat greater mobility than a motel room. In Steele v. State, 118 Ga. App. 433 ( 164 S.E.2d 255) the search was limited to the defendant's home. Fomby does contain an alternative, in that either of two automobiles is described in connection with the defendant and its inference is that either might be apprehended and searched provided it was in the defendant's possession. This might appear to give Georgia a slightly broader rule than Texas, where in Wood v. State, 243 S.W.2d 31 (Tex Cr.) it was held that certain premises properly described but characterized as under the control of the defendant "and/or" another person was void, but on analysis both cases agree in demanding that the person in control of the place to be searched must be specifically identified. (We are not dealing here with questions that arise in John Doe warrants.) "The writ should not leave the place to be searched to the discretion of the officer." 47 AmJur 522, 523, Searches and Seizures, § 35; People v. Two Roulette Wheels and Tables, 326 Ill. App. 143 ( 61 N.E.2d 277). Where the name of the owner or occupant is not given, the description of the premises must be exact. Story v. State, 74 Okla. Cr. 337 ( 126 P.2d 103). The rule in such a case is generally accepted to be that the identification of a subunit or multi-unit premises may be made by name of the occupant. See 11 ALR3d 1340, Anno. § 5. In the annotated case (People v. Estrada, 234 Cal.App.2d 136 (44 Cal Rptr. 165, 11 ALR3d 1307) it is pointed out that Shore v. United States, 49 F.2d 519, and Kenney v. United States, 157 F.2d 442, both "upheld search warrants which, while giving the address of the entire premises involved, contained qualifying language limiting the search to that portion occupied by a particular person." This is also true of United States v. Wihinier, 284 F. 528.
Which of the possible 111 rooms involved here is meant to be searched is indicated only by the statement that it is to be registered in the name of Adell Williams. Neither room was in fact registered in the name of Williams, but in that of Thomas, whose name appears in neither affidavit nor warrant. That ground of the written motion to suppress complaining that the warrant lacked the requisite particularity as to the premises to be searched was well taken, and the warrant was void.
It cannot be stated too often that a void search warrant cannot be validated and property illegally seized introduced in evidence merely because the officers were in fact reliably informed and did in fact recover contraband. "Nor can the deficiency be supplied by facts discovered in making the search, for the sufficiency of the affidavit must be determined as of the time the warrant issued." Burns v. State, 119 Ga. App. 678, 684 ( 168 S.E.2d 786); Wood v. State, 118 Ga. App. 477, 478 ( 164 S.E.2d 233). Evidence obtained under a void warrant is evidence illegally obtained and it has been settled once and for all that the taint of illegal procurement forbids its use as evidence.
In the present case the evidence sought to be admitted was found in the defendant's suitcase (whether open or closed, locked or unlocked, does not appear) in a room in which neither Williams nor the defendant was present at the time. The defendant was in no manner referred to in the affidavit or warrant. He had a constitutional right to the privacy of his belongings in the motel room until and unless the officers entered and searched that room in a legally justifiable manner. The motion to suppress should have been granted.
Judgment reversed. Bell, C. J., and Pannell, J., concur.