Summary
In Holstein v. State, 183 Ga. App. 610 (359 S.E.2d 360) (1987), this court held, in effect, that as used in these statutes the term "officer" refers only to those officers who have been certified as such pursuant to the Georgia Peace Officer Standards Training Act, OCGA § 35-8-1 et seq.
Summary of this case from Hill v. StateOpinion
74007.
DECIDED JUNE 15, 1987. REHEARING DENIED JULY 10, 1987.
Drug violation. Bartow Superior Court. Before Judge White.
William T. Elsey, for appellants.
Darrell E. Wilson, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.
Appellant John Holstein was convicted of possession of marijuana with intent to distribute, and appellant Ellen Holstein was convicted of possession of marijuana and possession of methamphetamine. On appeal, they assert as error the denial of their motion to suppress and question the evidence establishing the chain of custody of the contraband.
1. Appellants' appeal from the denial of their motion to suppress centers around the trial court's conclusion that Larry Hutson, the officer who applied for the search warrant pursuant to which the Holstein home was searched, was not a certified police officer. Under Georgia law, only a law enforcement officer may successfully apply for a search warrant, for OCGA § 17-5-20 provides: "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. A search warrant shall not be issued upon the application of a private citizen...." Pursuant to OCGA § 35-8-17 (a), "[a]ny peace officer ... who does not comply with this chapter [concerning certification] shall not be authorized to exercise the powers of a law enforcement officer generally and particularly shall not be authorized to exercise the power of arrest." Noncompliance with the conditions of OCGA Ch. 35-8, by the express terms of § 35-8-17 (a), renders the exercise of any powers of a law enforcement officer unauthorized. See Mason v. State, 147 Ga. App. 179 (7) ( 248 S.E.2d 302) (1978). A peace officer who does not comply with the conditions of certification "is thereby relegated to the status of a private citizen...." Mason v. State, supra. While, as a private citizen, a non-complying officer may effect an arrest under certain circumstances (see Williams v. State, 171 Ga. App. 807 (1) ( 321 S.E.2d 386) (1984), and Mason v. State, supra), OCGA § 17-5-20 expressly forbids the issuance of a search warrant on the application of a private citizen. Due to Hutson's lack of certification, he had no authority to apply for a search warrant, and the evidence seized pursuant to the execution of the illegal warrant should have been suppressed. See Huff v. Walker, 125 Ga. App. 251 (3) ( 187 S.E.2d 343) (1972).
2. In light of the disposition of appellants' initial enumerated error, we need not address the remaining alleged error.
Judgment reversed. Banke, P. J., and Carley, J., concur.