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MUNICIPAL COURT
Judges Bulletin
Summer 2006 • The Georgia Council of Municipal Court Judges Newsletter • Vol. 7, No. 2
TABLE OF CONTENTS President’s Corner
Executive Committee. . . . . . . 2 Michael P. Cielinski represent over 300 Judges. Yet we
Recorder’s Court of have little or no say in some of the
Farewell . . . . . . . . . . . . . . . . 3
Columbus-Muscogee County decisions which affect us. For exam-
Minutes of Spring ple, the proposed Rule dealing with the
Meeting . . . . . . . . . . . . . . 4
I
have begun this letter three times Maintenance of Non-Criminal
Financial Report . . . . . . . . . . 8 since last week. The first time I had Evidence and Criminal Evidence,
just been notified of Judge David which was adopted by the Judicial
ICJE Faculty Recognition . . . . 9
Pierce's illness, the second was the day Council in June, we had very little
Proposed Uniform Rule. . . . 10 he died and the third was the day of his input. These rules will impact your
Daubert Paper . . . . . . . . . . . 12 funeral. Today is the fourth day since court and how you do business.
his funeral. Judge Pierce was not a The Executive Committee is also
Lithia Springs. . . . . . . . . . . . 14
good Judge, he was a great Judge. Any examining the possibility of hiring a
A Celebration of Life . . . . . . 15 President of this Council, who asked lobbyist. The Magistrate Court's
A Police Officer’s him to do something, did not need to (Chief Magistrates) now have a retire-
Procedural Rights . . . . . . . . 16 ask again. It was done. All of us can ment system. The Magistrate courts
take a lesson from him. Let us commit also have a seat at the Judicial Council.
How to Beat a
ourselves to doing those things we do Many of these things happened; it is
Search Warrant . . . . . . . . . 19
best, being the best judges we can be. my belief, because they had a lobbyist.
Pictures . . . . . . . . . . . . . . . . 25 We stand at a crossroads today. A lobbyist will cost money. We are
Soon, hopefully we will have a seat at examining various options to obtain a
Thank You Council of
the Judicial Council of the State of lobbyist and will keep you informed.
Municipal Court Judges
Georgia. My hopes in this area are Let us all move forward to be the
very high. We have some very strong best for the Court and community.
backing, which we have never had Always remember that for many of the
The family of David Miller Pierce before. Look in the Georgia Courts citizens of this State we are the only
is grateful to God for his life, for
Directory, or get the current members contact they ever have with a Judge.
your friendship and your kind-
of the Council and ask them to support Their impression of your court will
ness and prayers.
us being seated at the table. Chris stay with them forever - good, bad or
Patterson of the AOC is going to help indifferent. We all know we can not
Thank you so much for the prepare talking points. It is imperative make everyone happy. One person
beautiful Fiddleleaf Fig plant
that all of us meet with the Judges on thinks we did not punish enough. The
you sent in memory of David.
the Judicial Council of the State of other side thinks they were dealt with
Georgia, and members of the Superior, harshly. We are there to see justice
Your friendship, prayers and con- State and Magistrate Court Judges done and many citizens do not realize
cern are deeply appreciated dur-
Council to actively seek their support. this is our job. Let us commit this year
ing this difficult time.
I urge you to do so. I will ask Chris to to see that justice is done. It is the best
put the talking points out on listserv way to get the respect we deserve and
upon completion. We all know that our to honor the memory of Judge Pierce.
Sincerely, Susan Pierce class of courts is not at the table. We
EXECUTIVE COMMITTEE
Judge Michael P. Cielinski Judge Henry E. Williams District 7
President Lumpkin Judge Robert L. Whatley
PO Box 1882 1101 Valley Road Austell
Columbus, GA 31902-1882 PO Box 71747 3959 Janet Street
706-653-0354/F 322-1722 Albany, GA 31708-1747 Lithia Springs, GA 30122
229-888-2600/F 888-3330 770-941-5833
Judge Bill Clifton
President-Elect District 3 Judge Diane M. Busch
577 Mulberry Street, Suite 710 Judge S.E. Moody, III Marietta
Macon, GA 31201 Montezuma 800 Kennesaw Ave., NW, Suite 400
478-750-8600/F 750-8686 PO Box 220 Marietta, GA 30060
Perry, GA 31069 770-424-4343/F 424-1892
Judge John A. Roberts 478-988-3114/F 988-0063
Vice President District 8
462 E. Paces Ferry Road, NE position vacant Judge Thomas C. Bobbitt, III
Atlanta, GA 30305 Jeffersonville
404-841-0661/F 841-0775 101 N. Jefferson Street, C55
PO Box 1676
Judge Kathryn Gerhardt Dublin, GA 31040-1676
Secretary District 4 478-272-5010/F 275-0035
PO Box 4866 Judge Angela T. Butts
Macon, GA 31208-4866 Recorder's Court of DeKalb County Judge Charles W. Merritt, Jr.
478-745-9661/F 745-9824 3630 Camp Circle Madison
Decatur, GA 30032-1394 155 S. Main Street
Judge Charles A. Gravitt, Sr. 404-294-2635/F 294-2148 Madison, GA 30650
Treasurer 706-342-9668/F 342-9843
118 Main Street Judge Warren W. Hoffman
Jonesboro, GA 30236 Stone Mountain District 9
770-478-1114/F 471-1091 922 Main Street Judge Kenneth E. Wickham
Stone Mountain, GA 30083 Norcross
Judge John Kinsley Edwards, Jr. 404-377-9277/F 377-3006 65 Lawrenceville Street
Immediate Past President Norcross, GA 30071
PO Box 1661 District 5 770-714-6894
Valdosta, GA 31603-1661 Judge Elaine Lynn Carlisle
229-671-2600/F 671-3441 Atlanta Judge William F. Brogdon
150 Garnett Street, SW Lawrenceville
District 1 Atlanta, GA 30303 PO Box 390997
Judge Tammy Stokes 404-954-6794/F 658-6994 Snellville, GA 30039
Recorder's Court of Chatham County 770-978-1181/F 978-1145
Chatham County Courthouse Judge Calvin S. Graves
133 Montgomery Street, Rm. 104 Atlanta District 10
Savannah, GA 31401 150 Garnett Street, SW Judge Chip Hardin
912-652-7429/F 652-7412 Atlanta, GA 30303 Tignall
404-658-7049/F 658-6586 105 Andrew Drive
Judge Willie Titus Yancey, II Washington, GA 30673
Thunderbolt District 6 706-678-4404/F 678-4404
2821 River Drive Judge John Clayton Davis
Thunderbolt, GA 31404 Morrow Judge C. David Strickland
912-629-4669/F 629-4668 2670 Emerald Drive Porterdale
Jonesboro, GA 30236 PO Box 70
District 2 770-715-5912/F 320-8930 Covington, GA 30015-0070
Judge Willie C. Weaver, Sr. 770-786-5460/F 786-5499
Albany Judge David J. Turner, Jr.
911 Pine Avenue Manchester
PO Box 646 PO Drawer 450
Albany, GA 31702-0646 Manchester, GA 31816-0450
229-438-9455/F 438-0674 706-846-8427/F 846-5241
Municipal Court Judges Bulletin — 2— Summer 2006
Farewell from Judge Edwards
A
fter almost ten years of serv- outstanding judges like David Pierce new President, Judge Michael
ice as a municipal court and William “Bill” Coolidge who Cielinski, who I know from personal
judge, it with sadness that I served this Council and their courts experience is truly committed to this
say farewell to this Council and with distinction. These men worked Council and seeks the very best for
move to my new position as judge of daily for the betterment of municipal its judges.
the State Court of Lowndes County. court judges across our State and our I am proud to have come from
It has been an honor to meet and court system in general. I can only this judicial background. I know that
learn from so many municipal court hope to measure up to such fine it has prepared me well for the chal-
judges over the past decade. I have judges one day. lenges which lie ahead. I wish you
made many good friends who serve I have thoroughly enjoyed my all only the best.
in their courts with dignity and a service to this Council on numerous
respect not only for the law but for committees and as a district repre- Sincerely,
the people who appear before them. sentative, Vice-President, President- John K. Edwards, Jr
I have also mourned the loss of truly Elect and President. I leave you in Municipal Court for the City of Valdosta
In Memoriam
the fine and capable hands of your
Judge David M. Pierce
Summer 2006 —3— Municipal Court Judges Bulletin
Minutes of the Winter Meeting
T
he spring meeting of the $10,562.19, including $1,050.25 for Cognition Issues in the Courts, May
Executive Committee of the the 2006 Legislative breakfast. The 16-17 at the State Bar of Georgia.
Georgia Council of Municipal Council has had fewer funds deposit- An announcement was posted to the
Court Judges was held on April 21, ed since the last financial report was listserv, including registration infor-
2006, at the Administrative Office of given because very few judges pay mation for those who wish to attend.
the Courts (AOC) in Macon, dues this time of year. The Council The conference is being offered at no
Georgia, following lunch sponsored currently has a balance in private cost and the Training Council has
by the Council. Judge Edwards funds of $50,006.80. Judge Ward approved five hours training credit
called the meeting to order at 1:00 also reported he had received a letter towards judicial certification.
p.m. He welcomed all Executive from the American Bar Association
Committee members and others in requesting a donation for this year. Report from AOC
attendance. He reminded members last year a Judge Edwards introduced Ms.
donation was made in memorial of Debra Nesbit, Associate Director for
Approval of Minutes Judge William Coolidge, III. After a Legislative and Governmental
The first item of business was brief discussion, members decided Affairs, AOC, who provided a leg-
the consideration of the minutes not to donate any funds at this time. islative update for the 2006 session.
from the winter meeting held in In final, Judge Ward announced Ms. Nesbit began by thanking the
Atlanta on February 23, 2006. Upon he would not seek re-election as municipal judges for their support of
motion duly made by Judge Bobbitt Treasurer. He nominated Judge the AOC during this session. She
and seconded by Judge Ward, the Charles Gravitt of Lake City as his reported the agency received a mil-
minutes were approved as submitted. successor for the post. lion dollar cut directly to their FY07
budget. Chief Justice Leah Sears
Financial Reports Presidents Report fought hard to keep the budget in
Judge Edwards then called for Judge Edwards announced the tact, as did Glen Richardson,
the financial reports. Ms. Marla meeting schedules associated with Speaker of the House. Ms. Moore
Moore, reporting for Chris Patterson, the Survey Update Seminar in June. continued on page 5
noted as of March 31, 2006, The Executive Committee will have
$6,187.29 of the State appropriated a luncheon meeting on Wednesday,
funds for fiscal year 2006 had been June 28th at 12:00 p.m., the Business
spent, leaving a balance of meeting will be held Thursday, June
29th at 10:00 am, and the Training
Congratulations
$13,346.28. Ms. Moore noted all
FY06 year expenditures are to be Council will meet for a lunch meet- New Officers of the Council
expended by June 16, 2006. The ing Friday, June 30th at 12:00 pm. of Municipal Court Judges
PeopleSoft system is being upgraded Next, he announced participants for 2006-2007
statewide and will be shutting down the Georgia Judicial Leadership
Judge Michael P. Cielinski, President
the first 10 working days of July. Academy scheduled for November Recorder's Court of Columbus-
With this being said, she advised the 8-10, 2006 at The Windsor Hotel in Muscogee County
Council should consider encumber- Americus Georgia were still being
Judge Bill Clifton, President-Elect
ing remaining FY06 funds towards sought. The Council has six seats
Municipal Court of Forsyth
printing i.e. the newsletter. After a designated for the seminar. Judges
brief discussion, Judge Bobbitt Cielinski and Still have tentatively Judge John A. Roberts, Vice-President
moved to encumber remaining FY06 agreed to attend. Judge Calvin Municipal Court of Lithonia
funds for printing. With a second Graves volunteered to participate as Judge Kathryn Gerhardt, Secretary
from, Judge Cielinski the motion well. In final, Judge Edwards stated Municipal Court of Macon
passed with all in favor. the Georgia Commission on Access
Judge Charles A, Gravitt, Sr.,
Judge Ward provided the private and Fairness in the Courts and the Treasurer
funds report and noted expenditures State ADA Coordinator's Office is Municipal Court of Lake City
as of March 31, 2006 totaled presenting a working conference on
Municipal Court Judges Bulletin —4— Summer 2006
Minutes continued
added a survey was sent out to the sumed bottle; authorize ters; regulations
judges regarding ranking services of This bill allows a restaurant patron to This bill allows for the Board of
the AOC. She requested the Council remove a partially consumed bottle Corrections to enter into contracts
to please return them via U.S. mail or of wine that had been purchased with private probation companies.
complete the survey on the web at along with a meal. The restaurant This bill provides for county and city
www.georgiacourts.org will reseal the bottle in a bag, and the operated probation departments to be
Next, Ms. Nesbit passed out a patron must put the bottle in the registered and regulated by the
legislative wrap-up and noted a final glove compartment or trunk of the County and Municipal Probation
report would be disseminated after car when leaving. As long as these Advisory Council under the same
May 9th, the last day for the conditions are met, possession of this terms the private probation compa-
Governor to sign or veto Bills. She open bottle will not constitute an nies are regulated. Effective date:
briefly reported on a few of the bills open container violation. July1, 2006. Judge Ward noted, it is
included in the packet. They were as Effective date: July 1, 2006. estimated more than 110 courts will
follows: come under the umbrella of the
HB 718 - Pretrial intervention and County and Municipal Probation
Fulton County has created five new diversion programs; authorize cer- Advisory Council.
cities, Johns Creek, Leesburg, tain courts to administer SB 203 - Public Defenders; indi-
Milton, Chattahoochee Hill Country This bill allows prosecuting attor- gent defense services; attorney's
and South Fulton. At some point neys for state courts, probate courts, fees/cost recovered
judges are likely to be appointed in magistrate courts, and municipal This bill allows local court officers to
these cities. courts to create and administer collect the fees for victim's assistance
Pretrial Diversion Programs. programs, which may be distributed
HB 1209 - Dept. of Public Safety; Effective date: July 1, 2006. directly to the programs (if qualified)
motorcycle enforcement program; Ms. Nesbit noted Judge Bobbitt instead of the money going through
provisions for payment This bill testified at the committee meeting on the Superior Court Clerks
requires that all fines paid for traffic this bill and made some clarifica- Cooperative Authority. This bill also
violations written by the newly-cre- tions. clarifies the fee collection for
ated motor cycle enforcement unit of Probate Courts, gives Superior Court
the Department of Public Safety be HB 1044 - Firearms; carrying and Clerks Cooperative Authority audit-
remitted to the Department for the possession; municipal and city ing authority over judges and courts,
purpose of maintaining the motor court judges; amend provisions allows for a county or municipality
cycle enforcement program. This This bill allows permanent part-time to recover payment of indigent
requirement does not apply to any municipal court judges to carry defense that was given to a defendant
fees or costs associated with the pay- firearms. who was not indigent, and allows for
ment of a fine and only apply to vio- Effective date: July 1, 2006. work release programs to be a condi-
lations that occurred on an “urban tion of probation. Effective date:
interstate system.” For the purposes HB 1288 - Municipal court clerks; July 1, 2006. Ms. Nesbit noted
of this bill, “urban interstate system” required training; provide Section 4 gives the Clerks Authority
means any portion of I-285 and the This bill requires municipal court broad authority and the power to
portions of I-75, I-85, and I-20 that clerks to complete at least 16 hours audit.
are within the perimeter. of training in their first year of
Effective date: July 1, 2006. employment and a minimum of 8 In final Judge Bobbitt noted HB
Judge Bobbitt noted this Bill has a hours per year after that. Effective 1501 - County ordinance viola-
sunset provision. date: July 1, 2006. tions; maximum fines; change pro-
visions which is mainly for metro
HB 1436 - Wine; restaurant SB 44 - Corrections; contracts with areas. This bill increases the maxi-
patrons; resealed partially con- private detention/diversion cen- continued on page 6
Summer 2006 —5— Municipal Court Judges Bulletin
Minutes continued
mum fine for alcoholic beverage will be re-introduced at the next leg- on June 6, 2006 at the Desoto Hilton
license violations to $2500. It only islative session. in Savannah, Georgia.
applies to counties or municipalities
that issue more than 300 such licens- (3) Golf Tournament. Ms. Murphy (2) Probation Advisory Council.
es (currently Fulton County only). reported for Judge Adams on the sta- Judge Ward skipped the normal pres-
Effective date: July 1, 2006. tus of the tournament. Judge Adam entation of statistics regarding proba-
is working with Judge Lawrence tion. At the February meeting, Ms.
Report from the Training Council Dillon of Chatham County to solidi- Ashley Garner gave a report on how
Judge Bobbitt reported with the fy the arrangements. The tourna- productive the Council's meeting on
passing of HB 1288 the Training ment will be held Thursday, June 29 regulatory compliance matters were.
Council would be responsible for at 1:30 pm. The tournament course The next meeting is scheduled for
implementing training for the clerks. will be announced at a later date. May 18, 2006 at the AOC Macon
He noted, the Georgia Municipal office. He further reported SB44
Association (GMA) and Chairman (4) Legislative. Judge Edwards passed and becomes effective July 1,
Ralston worked together to get this noted in the absence of Judge 2006. This bill places municipal and
vehicle in place. The Training Barrett, Ms. Nesbit's legislative county probation under the authority
Council is appointing a five member report will serve in the stead of a of the Council. It is estimated the
Clerks Advisory Committee to assist Legislative Committee report. bill will enlarge the Council by more
with the process; they will be invited (5) Newsletter. LaShawn Murphy than 110 courts.
to attend the June meeting. reported for Judge Washburn that the (3) Georgia Municipal Association.
Next, he reported ICJE and the next edition of the newsletter has Judge Bobbitt reported eminent
Training Council are concerned with been drafted and awaiting approval domain, annexations, indigent
the declining number of judges regis- from the editor. Members should defense, and decriminalization of
tering for courses. This has a direct have copies by month's end. traffic offenses continue to be issues
impact on the training budget. An of particular interest to GMA.
accurate accounting of the municipal (6) Nominations. Judge Pierce
judges and courts currently in opera- reported the notice of election and (4) Supreme Court Commission
tion is needed. The Council is will- nominations have been sent out to on Interpreters. Judge Edwards
ing to support the AOC and GMA in the Council. A copy of the memo reporting for Judge Still expressed
this endeavor. In final, Judge Bobbitt was included in the agenda [tab the need for use of “Certified
reported the passage of HB 718 three]. Nominations are actively Interpreters” in court proceedings.
necessitates the establishment of pre- being sought. There will be a vacan- This information needs to be dissem-
trial diversion training. cy for the Vice President post. inated through out the Council.
Interested parties should contact Old Business
Committee Reports Judge Pierce.
The following committee reports GCAC Technology Strategic Plan
were then given: (7) Uniform Rules. Judge Edwards Under the heading of Old
reported he is still working towards Business, Judge Edwards called
(1) Benchbook. Judge Bobbitt finalizing the Uniform Rules. upon Mr. George Nolan, Director for
reported the benchbook will be full the Georgia Courts Automation
reprint next year instead of a supple- After committee reports, Judge Commission (GCAC) to review the
ment. Edwards called for reports on draft of the Information Technology
liaisons with other agencies. The fol- Strategic Plan for the Council of
(2) Bylaws. Judge Edwards report- lowing reports were given: Municipal Court Judges. Mr. Nolan
ed for Judge Still. Legislation to passed out copies of the drafts of the
change the bylaws of the Training (1) Judicial Council. Judge Data Definition Summary Report
Council regarding appointments did Edwards reported the next meeting and the Information Technology Plan
not pass this year. This legislation of the Judicial Council is scheduled continued on page 7
Municipal Court Judges Bulletin —6— Spring 2006
Minutes continued
for review. He explained municipal mation and service needs, (4) Municipal Court Judges does not
court representatives meet Establish a strategic map for the have someone campaigning for their
September 27-30, 2005 for the first Municipal IT organization, and (5) cause they are likely to get left
of two sessions to (1) Determine the Align and prioritize the services and behind. Judge Bobbitt called for the
functions, stakeholders, interactions programs with the strategic map. establishment of a committee to
and dependencies of the Municipal With the completion of this effort proactively shape the Council's
Courts, (2) Determine the informa- along with the data requirements and future. He further advised the lobby-
tion requirements and associated data definitions effort, a strategic vision ist could be funded through the
definitions required to support these and map for 2006 through 2008 was Council's private funds. Judge
functions performed by the developed that will enable the Edwards moved to establish a long
Municipal Courts, (3) Align the Municipal Court to begin to priori- range planning committee to
information origination points and tize and deliver the IT services that research obtaining a lobbyist. With a
the security of the identified data def- will best support the court across the second by Judge Pierce, the motion
initions to the appropriate stakehold- judicial system. This is a statewide passed with all in favor. Judge
ers, and (4) Achieve consensus on information technology initiative for Edwards appointed the following
those points with respect to a general the sharing of data. The goal is to members to the committee: Judges
overview of the operations of the have information in standards to be Michael Cielinski, Thomas Bobbitt,
Municipal Courts. He further able to share with courts, agencies and Calvin Graves. Judges Diane
explained the reports intent is to pro- and anyone who needs it. Busch and Clayton Davis agreed to
vide all levels of courts an overview In final, Mr. Nolan requested the assist with the committee as well.
of the high-level functions and members to review the document(s). Judge Edwards then announced
process of the Municipal Courts of These reports are available on that the next meeting of the
Georgia and the related information GCAC's website in 'read only' for- Executive Committee will be held in
flows and data definitions required mat. The reports are in draft form Savannah, Georgia on June 28, 2006
for the courts to conduct its business and will not be released until a final- in conjunction with the Survey
within the courts as well as interac- ized version is approved. It is his Update Seminar. There being no fur-
tions outside the court. He explained goal to have the Data Definition ther business, the meeting was
there were five high-level functions Summary in final by the end of May adjourned.
identified for the municipal court. and the Strategic Plan by the end of
They are as follows: Administration/ June. Mr. Nolan ended by stating, the Respectfully submitted by,
Ongoing Efforts, Pre-Arraignment, next step in the process is a strategic
Pre-Court, In Court, and Post Court. business plan. Judge Edwards asked LaShawn Murphy, AOC
These functions are explained in the members to take the draft reports For Kathryn Gerhardt, Secretary
detail in the report. and review them for any changes and
The second session was the or additions. Anyone with changes
strategic planning for information
technology. Mr. Nolan explained in
should notify him.
Please
this session input from a broad group New Business
of municipal court's leadership met As an item of new business, Recycle
to: (1) Confirm the contents of the Judge Bobbitt led discussion on the
Data Definition Summary Report, future of the municipal courts. He
(2) Finalize the municipal courts cus- emphasized the need for strategic
tomer interactions, (3) Identify the planning and also asked the member-
services and programs currently sup- ship to consider acquiring a paid lob-
ported by the municipal courts to byist to promote or secure passage of
support IT needs, (3) Gain under- legislation affecting the municipal
standing of the municipal court's IT courts. The sentiment was also
priorities of current and future infor- expressed if the Council of
Spring 2006 —7— Municipal Court Judges Bulletin
Financial Report
JULY 1, 1999 THROUGH MARCH 31, 2006
TOTAL MUNICIPAL BANK DEPOSIT $60,778.99
Dues, Golf, Coffee Mugs Sales and Judge Association Dues
REFUNDED AMOUNT - $210.00
Seven $30.00 checks for overpayment of dues.1001,1002,1004,1005,1006
1007,1008. Check #1016 Voided.
TOTAL COUNCIL DEPOSIT
$ 60,568.99
EXPENSES
Bank Charges
checks and deposit slips -$104.50
Coffee Mugs -$557.69
Legislative Breakfast (ck.#1003 dated 02-09-01) -$1014.88
Legislative Breakfast (ck.#1009 dated 01-10-02) -$710.54
Legal Fees (ck.#1010 dated 05-13-02 - $ 65.92
Benchmark Trophy Center (ck.#1011 dated 07-10-02) -$774.44
Legislative Breakfast (ck.#1012 dated 01-31-03) -$821.25
President’s Plaque (ck.#1013 dated 10-03-03) -$ 43.00
Judge Cielinski (ck.#1014 dated 10-03-03) -$ 58.32
Legislative Reception Deposit (ck.#1015 dated 10-28-03) -$625.00
Legislative Reception Final (ck.#1017 dated 03-05-04) -$1922.00
Judicial Council Reception (ck.#1018 dated 08-19-04) -$564.57
American Heart Association (ck.#1019 dated 11-03 -04) -$100.00
Legislative Breakfast (ck.#1020 dated 01-26-05) -$637.50
Legislative Breakfast (ck.#1021 dated 02-03-05) -$468.35
State Bar Donation (ck# 1022 dated 05-16-05) -$1000.00
Legislative Breakfast (ck# 2001 dated 02-18-06) -$892.50
Legislative Breakfast (ck# 2000 dated 02-23-06) -$157.73
PETTY CASH -$50.00
PETTY CASH PAYMENT
Long Distance Calls $15.50
Office Supplies $34.50
TOTAL EXPENSES -$10,562.19
BANK BALANCE AS OF MARCH 31,2006 $50,006.80
BANK BALANCE AT LAST REPORT DECEMBER 31, 2005 $50,871.03
Municipal Court Judges Bulletin —8— Summer 2006
2006 - 2007 ICJE Faculty Recognition
Meeting Schedule The Institute of Continuing Judicial Education Faculty
Recognition Medallions are given to Instructors that
Strategic Planning Session have taught three courses and have received a score of
August 11, 2006 @ 9:00am 4.5 or above on their evaluations.
Administrative Office of the Courts Macon Office
110 Holiday North Drive, Suite B
Macon, Georgia 31210
October Meeting *
Executive Committee Meeting - October 13, 2006 @
1:00pm
Administrative Office of the Courts Macon Office
110 Holiday North Drive, Suite B
Macon, Georgia 31210
*The Municipal Judges Training Council meets prior
to this meeting @ 9:00am
February Meeting
(Executive & Winter Business)
Judge Thomas Bobbitt, III (left) and Judge
Legislative Breakfast/Winter Business Meeting
Maurice Hilliard (right) are presented by
February 1, 2007
Judge Michael Cielinski (middle) with
One Martin Luther King, Jr. Dr.
Faculty Recognition Medallions on behalf of
Sloppy Floyd Towers
The Institute of Continuing Judicial Education.
Atlanta, GA 30334
7:30 am - 9:30 am Legislative Breakfast
(All Municipal Court Judges and the General
Assembly invited to attend)
9:30 am - 12:00 Council Winter Business Meeting
1:00 pm - 3:00 pm Municipal Judges Training Council
Meeting
April Meeting
Executive Committee Meeting - April 20, 2007
Administrative Office of the Courts Macon Office
110 Holiday North Drive, Suite B
Macon, Georgia 31210
June Meeting Judge Ben Studdard (left) is presented by
in conjunction with the Traffic Seminar Judge Thomas Bobbitt with the Faculty
(Executive Committee and Summer Business) Recognition Medallion on behalf of The
June 27- 29, 2007 Institute of Continuing Judicial Education
Hyatt Regency Savannah
Savannah, Georgia
Summer 2006 —9— Municipal Court Judges Bulletin
Proposed Uniform Rule — Evidence
tively require local governing • Proposed Uniform Rule of the
T
he following proposal was
presented at the June 6th authorities to provide space specifi- Superior, State, Juvenile, Probate,
Judicial Council meeting for cally for the management of evi- Magistrate, and Municipal Courts;
recommendation and transmittal to dence in civil and criminal cases. Non-criminal and Criminal
the Supreme Court. At the meeting The recommendation was approved • A model order for the handling of
Judge Barrett W. Whittemore, Chair for adoption by the Judicial Council. evidence
of the Judicial Council Records • A model evidence log
Retention Committee provided back- These materials were provided to the
ground information and insight into Municipal Council Executive Please feel free to contact Executive
the rule development process. He Committee for review and discussion Committee members regarding feed-
then fielded questions from the at the latest quarterly meeting. back on the proposed Uniform Rule
Judicial Council. His report conclud- on Evidence Maintenance.
ed with a recommendation to legisla-
As Approved by the Judicial Council of Georgia June 6, 2006
Proposed Uniform Rule of the Superior, State, Juvenile,
Probate, Magistrate, and Municipal Courts
XX.xx _____ Maintenance of Non- case number and the exhibit number items of evidence necessary to com-
criminal Evidence and recorded in the log or inventory. plete the transcript of the case.
Within 30 days after disposition of Evidence in the possession of the
The Clerk of Court or the Court the case, the Court Reporter shall Clerk of Court or Court Reporter
Reporter in possession of docu- transfer the items of evidence along shall be maintained in accordance
ments, electronic documents, audio with the evidence log or inventory to with the law. The designated custo-
and video recordings of whatever the Clerk of Court of the originating dian shall be responsible for record-
form, exhibits, and other material court. The Clerk of Court shall ing on the evidence log the party, the
objects or any other items admitted update the log or inventory to show date, and the type action taken for the
as evidence in a civil case shall the current custodian and the loca- release of any such items of evidence
maintain a log or inventory of all tion of the evidence. Dangerous or and the party to whom it was
such items with the case number, contraband items shall be transferred released and the destruction of any
party names, description of the item, to the sheriff or other appropriate law such items of evidence. Any party,
the name and official position of the enforcement officer along with a Clerk of Court, Court Reporter,
custodian, and the location of the copy of the log or inventory. The Prosecutor, or Sheriff who is the cus-
storage of the items. Dangerous or law enforcement officer shall todian of such items of evidence in a
contraband items shall be placed in acknowledge the transfer with a case shall petition the court prior to
the custody of the clerk of court and signed receipt and the receipt shall making a substitute photograph, pho-
maintained in the courthouse or other be retained with the log or inventory tocopy, audio recording, digital
such location as allowed by law and created and maintained the Clerk of recording, video recording, electron-
be available during court proceeding Court. The Clerk of Court and the ic image, or other equivalent in lieu
and accessible to the court reporter. appropriate law enforcement officer of the original evidence. Upon
All such items presented by the par- shall each maintain a log or invento- granting of an order for substitution,
ties as evidence and admitted shall ry of such items of evidence. In all the order shall be entered into the log
be identified or tagged by the Clerk cases, the Court Reporter shall be or inventory.
of Court or Court Reporter with the granted the right of access to such
Municipal Court Judges Bulletin — 10 — Summer 2006
Proposed Uniform Rule cont.
XX.xx _____ Maintenance of appropriate law enforcement officer maintained in accordance with the
Criminal Evidence along with a copy of the log or law particularly as found in O. C. G.
inventory. The law enforcement A. §17-5-55. The designated custo-
The Clerk of Court or the Court officer shall acknowledge the trans- dian shall be responsible for record-
Reporter, during the court proceed- fer with a signed receipt and the ing on the evidence log or inventory
ings, in possession of documents, receipt shall be retained with the log the party, the date, and the type
electronic documents, audio and or inventory created and maintained action taken for the release of any
video recordings of whatever form, the Clerk of Court. The Clerk of such items of evidence and the party
exhibits, and other material objects Court and the appropriate law to whom it was released and the
or any other items classified as evi- enforcement officer shall each main- destruction of any such items of evi-
dence in a criminal case shall main- tain a log or inventory of such items dence. Any party, Clerk of Court,
tain a log or inventory of all such of evidence. In all such transfers, the Court Reporter, Prosecutor, or
items with the case number, party items transferred shall be pho- Sheriff who is the custodian of such
names, description of the item, the tographed or recorded by a visual items of evidence in a case shall peti-
name and official position of the cus- image and placed into the court file. tion the court prior to making a sub-
todian, and the location of the stor- In all cases, the Court Reporter shall stitute photograph, photocopy, audio
age of the items. All such items clas- be granted the right of access to such recording, digital recording, video
sified by the parties as evidence shallitems of evidence necessary to com- recording, electronic image, or other
be identified or tagged by the Clerk plete the transcript of the case. equivalent in lieu of the original evi-
of Court or Court Reporter with the dence. Upon granting of an order for
case number and the exhibit number Evidence in the possession of the substitution, the order shall be
and recorded in the log or inventory Clerk of Court or Court Reporter, entered into the case file and the log
and shall be in the custody of the during court proceeding, shall be or inventory.
clerk of court and shall
not be removed from the
Sample Log
courthouse or other such
location as allowed by
law and be available dur-
ing court proceeding and
accessible to the court
reporter. Within 30 days
after disposition of the
case, the Court Reporter
shall transfer the items of
evidence along with the
evidence log or inventory
to the Clerk of Court of
the originating court. The
Clerk of Court shall
update the log or invento-
ry to show the current
custodian and the location
of the evidence.
Dangerous or contraband
items shall be transferred
to the sheriff or other
Summer 2006 — 11 — Municipal Court Judges Bulletin
Daubert and Georgia’s New Expert Witness Rule
Gregory T. Presmanes, BOVIS, KYLE & BURCH, LLC
Paper continued from Spring issue of dict. However, federal trial judges have of expert testimony and directs the tim-
The Bulletin. used the Daubert rule to evaluate not ing of such disclosures. To the contrary,
only the methodology, but the conclu- however, Georgia has no similar provi-
Before the 2005 tort reform legislation, sions and opinions of the experts, as sion. Instead, discovery of experts is
Georgia had declined to adopt the well, notwithstanding Justice Blackmun’s governed by OCGA § 9-11-26(b)(4) of
Daubert rule on several occasions on the opinion that the Daubert rule was to be the Civil Practice Act. Essentially, that
ground that it was based on the Federal applied only to the methodology and not statute states that, in response to an inter-
Rules of Evidence, which had not been to the conclusions and opinions of rogatory, a party must disclose experts.
adopted by the Georgia Legislature.35 experts.41 There are no specific details or require-
The Georgia Supreme Court granted cer- The new law passed by the Georgia ments, and typically, neither side will
tiorari twice to consider whether to adopt Legislature in 2005 is OCGA § 24-9- give much information on their experts
the Daubert rule, but ruled that certiorari 67.1, which governs the admissibility of outside of depositions.
was improvidently granted.36 expert opinions in civil actions. It In determining whether the pro-
Before the 2005 legislation, Georgia attempts to adopt Rules 702 and 703 of posed expert testimony is relevant, the
law provided much broader rules for the Federal Rules of Evidence, with Rule Georgia definition of relevancy is some-
expert testimony and did not require the 702, as amended in 2000, being the cod- what different than the Federal Rules of
trial court to be a gatekeeper. The basis ification of the Daubert rule. Subsection Evidence. The Georgia rule provides,
for Georgia’s historic rule on expert tes- (a) of the new Georgia statute is exactly Evidence must relate to the questions
timony was contained in OCGA § 24-9- the same as Rule 703. Subsection (b) of being tried by the jury and bear upon
67, which provided in pertinent part, the statute is almost the same as Rule them either directly or indirectly.42 On
The opinions of experts on any question 702. Subsection (a) addresses the basis the other hand, Rule 401 of the Federal
of science, skill, trade or like questions of opinion testimony by experts. It is Rules of Evidence provides, Relevant
shall always be admissible. Further- contrary to Georgia’s historic rule, evidence means evidence having any
more, questions going to whether there which prevented an expert from relying tendency to make the existence of any
was a sufficient basis upon which to base on hearsay evidence and which required fact that is of consequence to the deter-
an expert opinion went to the weight and the basis of expert opinion to be admit- mination of the action more probable or
credibility of the testimony, not its ted in evidence independently. Federal less probable than it would be without
admissibility.37 However, the Georgia Rule 703, however, allows the expert to the evidence. It remains to be seen as to
Supreme Court adopted an exception to base his opinion on hearsay, if the facts whether or not these two differing defi-
the general rule in a criminal case, or data upon which the opinion is based, nitions of relevancy will be interpreted
Harper v. State.38 In Harper, the Court are of a type reasonably relied upon by differently.
evaluated the standard for determining experts in the particular field in forming The new statute provides for pre-
whether the results of an interview, con- opinions or inferences upon the subject, trial hearings to determine the admissi-
ducted while the defendant was under and the facts or data need not be admis- bility of proposed expert testimony.
the influence of truth serum, were sible in evidence for the opinion or infer- Subsection (d) of OCGA § 24-9-67.1
admissible. The Court rejected the Frye ence to be admitted. provides that, upon motion of a party, the
rule of counting heads, and instead held There is an internal inconsistency in Court may hold a pre-trial hearing to
that it was proper for the trial judge to the new statute between subsection (a) determine whether a witness qualifies as
decide whether the procedure or tech- and subsection (b)(1) of O.C.G.A. '24-9- an expert and whether the expert testi-
nique in question had reached a scientif- 67.1. Subsection (a) allows an expert to mony satisfies the requirements of the
ic state of verifiable certainty. This ver- rely on facts or data [that] need not be rule. There is no comparable provision
ifiable certainty test, however, did not admissible in evidence if of a type rea- in Rule 702 of the Federal Rules of
address the admissibility of the opinions sonably relied upon by experts in the Evidence. However, if a hearing is held
of expert witnesses generally; instead, it field in forming opinions, but subsection in federal court, it is typically held pur-
addressed only the admissibility of the (b), contrary to Federal Rule 702, and suant to Rule 104 of the Federal Rules of
results of novel procedures and tech- contrary to subsection (a), requires Evidence, a provision in the federal rules
niques.39 expert opinions to be based on facts and that has no parallel in Georgia. To the
The Georgia Court of Appeals ruled data which are or will be admitted into contrary, in Kumho Tire Company, the
that the Harper rule was not the same as evidence at the hearing or trial. This United States Supreme Court held that it
the Daubert rule in the case of Orkin contradictory language is likely to cause was not necessary to have a hearing on a
Exterminating Co. v. McIntosh.40 In that confusion. Daubert motion, but that the trial court
case, the Court of Appeals held that the Georgia has not adopted all of the has the discretion to decide how to con-
credibility of the conclusions drawn by Federal Rules of Civil Procedure or the sider the motion.43 However, the trial
the experts was for the jury to determine, Federal Rules of Evidence. Federal Rule court cannot simply disavow its ability
and hence, they denied Orkin’s motions 26(a)(2) of the Federal Rules of Civil to handle the Daubert issues. In the case
for summary judgment and directed ver- Procedure contains the requirement for
what must be included in the disclosure continued on page 11
Municipal Court Judges Bulletin — 12 — Summer 2006
Daubert cont.
of McClain v. Metabolife International, Even though much of the Daubert before the trial, because there is no final
Inc., the Court stated that, Although the rule and OCGA § 24-9-67.1 are geared pre-trial conference53 in workers’ com-
trial court conducted a Daubert hearing, toward jury trials, they still apply in pensation claims.
and both witnesses were subject to a workers= compensation cases. Insofar The State Board of Workers’
thorough and extensive examination, the as workers’ compensation cases are con- Compensation will use the same four
Court ultimately disavowed its ability to cerned, the provisions of OCGA § 24-9- factors recommended by the United
handle the Daubert issues. This abdica- 67.1 specifically apply to all civil States Supreme Court in determining the
tion was in itself an abuse of discretion.44 actions, which includes workers’ com- reliability of proposed scientific opinion
Thus, merely holding a hearing is not pensation cases.45 Expert witnesses are testimony as follows: (1) whether the
sufficient, and the court must apply the allowed to give their opinions based theory can and has been tested; (2)
factors recommended by the United upon facts as proved by other witness- whether it has been subjected to peer
States Supreme Court in the Daubert es.46 The expert witness may be allowed review; (3) the known or expected rate
case. to base his or her opinion on facts or data of error; and (4) whether the theory and
There is a unique provision of the made known either at the hearing or methodology employed is generally
new statute contained at OCGA § 24-9- before the hearing.47 An expert witness accepted in the relevant scientific com-
67.1(f). That provision is as follows: may be allowed to base his or her opin- munity.54 The factors will be applied by
ion on facts or data that are not admissi- the Board in accordance with the guide-
It is the intent of the legislature that, in ble in evidence if they are of a type rea- lines given by Daubert, and thus will be
all civil cases, the courts of the State of sonably relied upon by experts in the flexible and used to insure the overall
Georgia not be viewed as open to expert particular field in forming opinions or reliability of a proffered expert=s
evidence that would not be admissible in inferences upon the subject.48 methodology and conclusions, with the
other states. An expert witness can be allowed to primary focus being on the principles
testify if expert testimony will assist the and methods used, not on the conclu-
It is unclear how this will be inter- trier of fact to understand the evidence or sions generated.55
preted. Perhaps it will be necessary for determine a fact in issue.49 An expert wit-
Georgia courts to stay current with deci- ness may be qualified as an expert by CONCLUSION
sions in other states in order to determine virtue of knowledge, skill, experience, It will take years and many deci-
whether an expert can testify in Georgia. training, or education.50 An expert wit- sions from Georgia courts before we
Moreover, what interpretation will arise ness may be allowed to give opinion tes- know the full impact of the Daubert
if decisions of other states reach incon- timony if the testimony is based on suf- decision, its progeny, and OCGA § 24-9-
sistent results? Also, if expert testimony ficient facts or data which are or will be 67.1. Constitutional challenges to the
is handled differently in another state, admitted into evidence; the testimony is statute are a distinct possibility. In work-
with different statutes, should that be rel- the product of reliable principles and ers’ compensation cases, however, the
evant in Georgia? This is a very unusu- methods; and the witness has applied the main reasons for requiring the trial judge
al provision, which to this writer’s principles and methods reliably to the to be the gatekeeper of expert testimony
knowledge, does not exist in any other facts of the case.51 do not really apply, because there is no
jurisdiction. The remainder of subsec- Any party may request a pre-trial jury. Nonetheless, the State Board of
tion (f) gives Georgia courts the right to hearing to determine whether the witness Workers’ Compensation is required to
draw upon opinions of the United States qualifies as an expert and whether the make the analysis and findings in accor-
Supreme Court in the cases of Daubert, expert’s testimony satisfies the require- dance with the Daubert decision and
Kumho Tire, and General Electric v. ments of OCGA § 24-9-67.1(a) and (b).52 OCGA § 24-9-67.1, either at the trial or
Joiner, in considering expert witness tes- Upon the filing of a motion by any party beforehand, if a party makes such a
timony. However, the new statute in for a pre-trial hearing on such issues, the motion.
Georgia is not entirely consistent with hearing and ruling must be completed no
either the Daubert or Kumho Tire cases. later than the final pre-trial conference.53
Therefore, problems may arise from NOTE: This writer would like to acknowledge and
However, this provision seems more
thank Robert E. Shields and Leslie J. Bryan for
drawing upon those decisions to inter- geared toward jury trials. Therefore, in a their excellent article in the October 2005 issue of
pret the Georgia statute insofar as it is workers’ compensation case, the Board the Georgia Bar Journal entitled Georgia’s New
not entirely consistent with those cases. would probably rule on the motion Expert Witness Rule: Daubert and More.
35
See, e.g., Orkin Exterminating Co. v. McIntosh, 215 41
General Electric Co. v. Joiner, 522 U.S.136, 146 (1997). 52
OCGA § 24-9-67.1(d).
Ga.App. 587, 592-93, 452 S.E.2d 159, 165 (1994). 42
OCGA § 24-2-1 (2005). 53
OCGA § 24-9-67.1(d).
36
Orkin Exterminating Co. v. Carder, 258 Ga.App. 796, 575 43
Kumho Tire Co., 526 U.S. 137 (1999). 54
McLain v. Metabolife International, Inc., 401 F.3rd 1233
S.E.2d 664 (2002), cert. granted on whether to adopt the 44
McClain v. Metabolife International, Inc., 401 F. 3rd, (1251), 11th Circuit 2005, citing Daubert, 509 U.S. at 593.
Daubert rule (April 29, 2003), cert. vacated (September 8, 1233, 1238 (11th Circuit 2005). 55
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
2003). 45
OCGA § 24-9-67.1(a). 579, 594 (1993); see also, Liriano v. Hobart Corp., 949
37
Chandler Exterminators, Inc. v. Morris, 262 Ga. 257, 259, 46
OCGA § 24-9-67.1(a). F.Supp. 171, 177 (S.D.N.Y. 1996). (In considering rele-
416 S.E.2d 277, 278 (1992). 47
OCGA § 24-9-67.1(a). vance and reliability factors under Daubert, the focus must
38
Harper v. State, 249 Ga. 519, 292 S.E.2d 389 (1982). 48
OCGA § 24-9-67.1(a). be solely on principles and methodology, not on conclusions
39
Harper v. State, 249 Ga. 519, at 525-26 (1982). 49
OCGA § 24-9-67.1(b). they generate.)
40
Orkin Exterminating Co. v. McIntosh, 215 Ga.App. 587, 50
OCGA § 24-9-67.1(b).
593, 452 S.E.2d 159, 165 (1994). 51
OCGA § 24-9-67.1(b) (1-3).
Summer 2006 — 13 — Municipal Court Judges Bulletin
Will Your Little City and Judgeship Go the Way of Lithia Springs?
Judge Robert L. Whatley, City of Austell & formerly City of Lithia Springs
pro-city and the anti-city factions effectuated; others were attempted.
T
he little enclave of Lithia
Springs in Douglas County approached State Representative Two citizens not satisfied with the
has seen glory and turmoil Alpha Fowler, Jr in l959 to resolve substance and legality of the services
after its legal birth in 18821 the city the matter and he drafted a charter filed a suit for Declaratory Judgment
quickly became famous for hosting with a referendum provision. The alleging that the substance of the
what was then the equivalent of the referendum failed and the matter was services were not sufficient and the
Worlds Fair. Known formally as the dropped. But in the early nineties, a contracts for service were not fully
Piedmont Chautauqua and financed movement began to question the authorized by law.11 The court after
by Henry Grady and others, the town legality of the city anew and a group fully examining carefully every pur-
was touted worldwide and attracted of citizens petitioned the6 court and ported service and contract ruled
many dignitaries and even a few after determining the results of the most services inadequate and granted
presidents and would-be-presidents. 1933 referendum were unavailable, summary judgment to the plaintiffs.
Being blessed with mineral water the court ordered on April 2, 1993 An appeal ensued alleging compli-
later identified as Lithium, many yet another referendum to determine ance and adequacy. When the Court
came to drink and provided glowing the wishes of the citizens. A referen- of Appeals reversed the trial court
testimonies of their return to health. dum was held January 25, 1994 and (November 30, 1999)12 ruling that
The coming of a sumptuous hotel carried by a vote of 329-239. Based some of the services seemed ade-
was vastly different in splendor for on the results, an interim council was quate and remanded the trial court
its day and the fair and its attractions appointed and the first council was for jury determination.
brought people from all parts of the elected and sworn in on December Tiring of the struggle and the
nation and world. A spur line from 31, 1994. The city began operating looming expenses, the council voted
the Austell Southern Railroad made and became fully functional as an on August 17, 2000 to consent disso-
access easily attainable. But the ongoing body politic. Concurrent in lution based on a referendum. The
burning of the hotel in 1912, the out- time the Legislature became con- referendum failed by a margin of 349
break of World War I, the Depression cerned about the many cites that was on March 20, 2001. The vote was
and the financial setbacks suffered dormant, non-functioning and pro- authorized by concurrence by the
by the entrepreneurs caused the city viding no services and passed a parties and appeared to be a straw
to collapse. The legal history like- purge law7 giving the Department of vote authorized by the council. Straw
wise has a troubled past leading up to Community Affairs power pursuant votes are not favored in Georgia and
the present. The history remains as to the enabling legislation. The only true referendums authorize in
the sound of an uncertain trumpet. Legislation provided that a city must such cases as annexation,13 abolish-
Incorporated and chartered in 1882 provide at east three services out of a ing offices,14 consolidations,15 repeal
as Salt Springs, the city later changed litany8, including holding elections of ordinances,16 voting methods,17
her name to Lithia Springs2 and then periodically and conducting meet- water fluoridation18 and picture
increased its boundaries.3 When the ings at certain intervals. If the cities shows on Sunday.19 Liquor, tax refer-
financial collapse came, the city held failed to do this, they would be dis- endum, and bond authorizations are
a referendum in response to a peti- solved by operation of law on July 1, too numerous to mention. The refer-
tion of the voters and a court order.4 1995; or upon application of a citizen endum appeared an after-the-fact rat-
The town's meager assets were sold if there were a question as to whether ification of the agreement of the par-
to finance the vote. The results of the there was compliance.9 ties; not a court ordered one.
court referendum were not recorded. Meanwhile, the first official Predicated on the referendum, the
Therefore some contend that the city charter was granted by the judge dissolved the city on June 21,
was never dissolved. Indeed in a Legislature.10 With sparse resources, 2001 with the city turning over its
recent list of active municipalities the city performed Public Works and assets to the county according to law
published the town was included as Code Enforcement and contracted (June 20, 2001).20
active. Over the next few years the out many of the other required serv- It is settled that dissolution must
questions kept arising as to whether ices. Contracts with county police, have the blessing of the Legislature.21
the city was really dissolved. The fire, and building departments were continued on page 14
Municipal Court Judges Bulletin — 14— Spring 2006
Celebration of Life
David Miller Pierce May 29, 1945 - July 13, 2006
gave birth to their daughter also Chairman of the Board of
W
e will all miss Judge
David Miller Pierce, Meredith. He was in private practice Trustees and a member of the
Chief Judge of the for 27 years, first with Nunn, Geiger Christadelphian Sunday School
Magistrate Court of Houston County & Pierce, and later Geiger & Pierce. class. Also active in Rotary, with 30
and Judge of the Cities of Perry, Judge Pierce was highly regarded by years of perfect attendance, his lead-
Byron, and Roberta. Judge Pierce his legal colleagues and the commu- ership roles included serving as
departed this life on July 13, 2006. nity at large, he was appointed to the President, District Director, Assistant
He was 61. Born in Hawkinsville, City of Perry in 1980 and the Governor, Paul Harris Fellow, and
Georgia, in 1945 to Mr. and Mrs. Houston County Magistrate Court in Will Watt Fellow. Within his commu-
John Dupree Pierce, he attended 1997. Judge Pierce was an active nity, he has served as a Chairman of
Hawkinsville High School, where he participant in a variety of profession- the Perry Area Chamber of
was a scholar and all-state quarter- al and community organizations. He Commerce, the Houston County
back. From there he went on to served on the Executive Committees Development Authority, The
Florida State University where he of the Council of Magistrate Court Westfield Schools Board of Trustees,
graduated in 1966 with a Bachelor of Judges and the Council of Municipal and the Middle Georgia Military
Arts in mathematics and later attend- Court Judges. You could bet on Affairs Committee, as well as serv-
ed Emory University School of Law, Judge Pierce being present for ing on the Board of Governors for
receiving his Juris Doctor degree in Council meetings, he was a loyal The Grand Opera House; Museum of
1969. While attending law school, member. It won't be the same attend- Aviation Foundation, Robins Air
his mother reintroduced him to his ing the Council meetings and not Force Base; Board of Directors for
childhood neighbor, Susan Dean, and have him there to greet you with a the Robins Air Force Base Museum
the two were soon married on August smile that would light the room. He and The Air Force Association.
3, 1968. Following law school, he also served on the Georgia Professionally, Judge Pierce was a
joined the United States Air Force Commission on Dispute Resolution member the State Bar of Georgia,
and served as a member of the Judge and the Commissions Committee of American Bar Association, and
Advocate General Department, Rules. As a member of the Perry Houston County Bar Association. In
attaining the rank of Captain before United Methodist Church, he served final, one can truly say he was a ser-
receiving an honorable discharge in as a member of the Administrative vant of the people…
1974. Judge Pierce and his wife then Board, Finance Committee, and
moved back to Perry, where they Staff-Parrish Committee. He was
Lithia Springs cont.
However the law a1so states that it House of Representatives. Thus it In summary, after numerous law-
may be dissolved using other “meth- appears that the “other method” suits, four referendums, appellate
ods as may be provided by general approved is a court dissolution with- intervention, numerous charters, and
law”. House of Representatives Bill out the intervention of the Legislative denial, the question
571 (for repeal of charter) sought to Legislature as long as the court order which surfaced in 1933, appears as
dissolve the city but did not pass the is recorded.22 uncertain now as then.
1
Ga. Laws 1882, p. 277 ply and distribution, waste-water treatment, storm-water col- 13
O.G.C.A. 36-36-58
2
Ga. Laws 1918, p. 1885 lection and distribution, electric or gas services, planning 14
O.G.C.A. 1-3-11
3
Ga. Laws 1886, p. 230; Ga. Laws 1887, p. 497 and zoning, recreational facilities; building, housing plumb- 15
O.G.C.A. 30-60-16
4
Ga. Laws 1933, p. 1050; Referendum order issued July 29, ing, electrical code and other code enforcement 16
O.G.C.A. 36-35-3 (a)(2)(A)
1933 9
O.C.G.A 36-30-7.1 (J) 17
O.C.G.A. 21-2-321
5
Ga. Laws 1959, p. 2871; noted failed in Local Legislation 10
Ga. Laws 1996, p 4319 (April 8, 1996), Second Charters 18
O.C.G.A. 12-5-175
Index Ga. Laws 1999, p, 4842; Home Rule, Ga. Laws 2000 p. 19
O.G.C.A. 101-1-552
6
Douglas County Superior Court case 92-8068(1992) and 4704 20
O.G.C.A. 36-30-7.1(g)
case 93-9315 11
Douglas County Superior Court case CV00372 (filed 21
O.G.C.A. 36-35-2(e)
7
O.C.G.A paragraph 36-30-7.1. Ga. Law 1992, p. 2592 February 26, 1997) 22
Laws 2002, Vol. 11, p 5985
8
These services were law enforcement, fire protection, road 12
Lithia Springs v. Turley, 241 Ga. App. 472, S. E. 2d
and street construction, solid waste management water sup- 364(1999)
Spring 2006 — 15 — Municipal Court Judges Bulletin
A Police Officer’s Procedural Rights in Disciplinary Matters:
The Right to Privacy, Use Immunity, and the Scope of the Internal Affairs Investigation
By: Richard T. Alexander, Alexander & Cleveland, LLC
INTRODUCTION mandated. The Court in Guntharp v. officer of the allegations and the
This article was originally writ- Cobb County insisted the inquiry name of the complaining person. In
ten for the Watchful Eye, the official must be made as narrowly as possi- addition, the Court found that the
publication of the Georgia State ble, may not enter areas unrelated to Cobb Police Code of Conduct set the
Lodge, Fraternal Order of Police and job performance, and must be specif- internal affairs unit's procedures
published in 1999. This paper is a ically, directly, and narrowly related which mandated that all procedures
condensed version on a police offi- to the performance of official duties.4 carried out under its General Order
cer's right to privacy within the realm As well, the investigation should be shall be specifically directed and nar-
of the internal affairs investigation, limited to those areas identified as rowly related to a particular investi-
the restrictions on management relat- being within the investigation.5 gation being conducted by the
ed to the right to privacy, the scope In Guntharp v. Cobb County, a Department.6
of internal affairs investigations, and Cobb County police officer was noti- As to polygraph examinations,
the use immunity doctrine granted to fied of an internal affairs investiga- most likely, if the department has a
officers in internal affairs investiga- tion focusing on whether or not the written policy, the employee will be
tions. officer was involved, or had knowl- required to submit to the polygraph
edge of, the shooting of his neigh- or face disciplinary action.
RIGHT TO PRIVACY, USE bor's dog. Guntharp was ordered to Polygraph results alone may not sup-
IMMUNITY, AND SCOPE OF appear for a polygraph examination. port disciplinary action under certain
THE INTERNAL AFFAIRS Upon arrival he was informed there circumstances.7 The employee may
INVESTIGATION would be additional questions direct- file a declaratory judgment action to
Georgia has long recognized a ed towards shooting into a house and challenge the mandatory nature of
right to privacy.1 There are two the- the shooting of horses. the department's polygraph examina-
ories which hold prominence: 1) an Guntharp, upon being informed tion policy even before he or she
individual's interest in avoiding dis- of the additional areas of inquiry, exhausts an administrative remedy.8
closure of personal facts, and 2) the asked to call his attorney and In Hester v. City of Milledgeville,9
individual's interest in being left declined to proceed further with the city officials were concerned that
alone.2 As we all know, law enforce- polygraph until such time as he con- city fire fighters were involved in
ment agencies seldom, if ever, recog- sulted with legal counsel. After con- illegal drug activity. As a result, the
nize such rights and frequently sultation with legal counsel, he city council passed a resolution
exceed clear and well established informed his superiors that he would requiring fire department employees
constitutional boundaries. Seldom submit to the test. This was approx- to undergo polygraph testing. The
do police officers challenge an inves- imately two hours after stopping the city council resolution provided for
tigation exceeding constitutional initial inquiry. testing specifically directed and nar-
boundaries. Guntharp's superiors considered rowly related to a particular internal
The test to determine when an he had refused the test and commit- investigation.10
officer's right to privacy may be ted an act of insubordination which As a result of the city council
invaded simply balances the officer's resulted in his dismissal. The Cobb resolution, all fire fighters were
interest in privacy versus the Civil Service Board upheld his ter- required to elect and sign one of four
employer's interest in disclosure.3 If mination and the Cobb Superior forms which provided: 1) an agree-
information is pertinent to the offi- Court refused his appeal on writ of ment that the results could be used in
cer's on the job performance, then certiorari. The Court of Appeals a judicial or administrative proceed-
the officer may be required to dis- granted his discretionary appeal. ing, 2) a waiver of all state and fed-
close the information, including The Appeals Court in reversing eral constitutional rights in connec-
financial information. However, if the lower court decided that the tion with the polygraph examination,
there is no link between job perform- Cobb Police Department violated 3) a right to preserve all constitution-
ance and the information requested, General Order 74-6 which required al rights which permitted the
disclosure most likely will not be the internal affairs unit to advise the continued on page 17
Municipal Court Judges Bulletin — 16 — Summer 2006
Police Officer’s Rights cont.
employee to object to incriminating allegations. In conjunction with Thereafter, the police chief
questions, or 4) a refusal to submit to recanting the allegations, the officer ordered the officer to provide a truth-
the polygraph examination. The was assured the employee involved ful and detailed statement to the
Court found the process lacking in in the assault would resign. department representative investigat-
constitutional protections because Thereafter, members of the depart- ing the incident. The officer was
employees may have felt compelled ment published degrading drawings given repeated assurances that his
to sign the form most favorable to the of the officer victim and subjected statement would be for administra-
employer in order to remain her to insults. The officer victim tive purposes only and that none of
employed. In other words, the resigned and filed a civil rights his statements would be used in a
options provided were inherently action under a theory of the right to subsequent criminal proceeding,
coercive11 to laypersons. privacy. however, he refused to answer ques-
The Hester Court, compelled to The Tenth Circuit found the tions. The officer was ultimately ter-
follow the ruling in Garrity, clearly investigation to have strayed from its minated for refusing to answer.
stated that any information obtained inquiry and that it exceeded constitu- The officer brought suit against
in the administrative investigation tional boundaries. The Court indicat- the chief and claimed he was protect-
would not be available in a criminal ed the investigation had entered the ed by the Fifth Amendment privilege
case whether or not the employer personal life of the officer victim and against self-incrimination. The
made an explicit grant of immunity.12 was a standardless inquiry.17 United States District Court upheld
The Court determined the privilege Three other cases dealing with the officer's dismissal and the
against self-incrimination automati- administrative investigations deserve Eleventh Circuit Court of Appeals
cally attaches to compelled out-of- our attention as they relate to use affirmed that ruling.
court incriminating statements as a immunity granted in the internal The Appeals Court found that
matter of law.13 As well, should an affairs investigation. We must since the officer was not coerced into
police officer assert the privilege understand the holdings in Erwin v. waiving his Fifth Amendment privi-
against self-incrimination, the Price, Benjamin v. City of lege and refused to answer questions
employer may not consider the Montgomery, and United States v. specifically, directly, and narrowly
refusal to waive the privilege as a Camacho.18 relating to performance of his official
black mark upon an employee's The Erwin case involved off duty duties, the privilege would not bar
record14 and may not [threaten] to conduct by an Athens, Georgia police his dismissal.19 The court further
discipline or discharge the employee officer. The officer pulled into a held that under the ruling in Hester
if he or she refuses to waive it.15 store parking lot, at that moment a any further grant of use immunity
As to the scope of internal affairs pedestrian jerked open his car, called would be duplicative. Therefore, the
investigations, one case stands out as him an insulting name, and accused prosecution was bound by the consti-
guidance to law enforcement offi- the off duty officer of almost hitting tutional rulings beginning with
cers, Eastwood v. Department of him with the officer's automobile. Garrity and the clear statement from
Corrections.16 In the Eastwood case, The officer pulled a handgun from the department representative was
a female DOC officer was drugged, his glove compartment and it was sufficient to be binding on the prose-
rendered unconscious, and sexually seen by the pedestrian. The officer cuting attorney.
molested by a fellow employee. The told the person that if he had a com- In Benjamin, two City of
incident was reported and an internal plaint he should call the police Montgomery police officers, both
affairs investigation commenced. department and that he would wait sergeants, filed a civil rights action
The internal affairs investigator for their arrival. contesting their dismissal from the
informed the officer that she would After this exchange, the pedestri- force. The case again dealt with the
not be retaliated against for revealing an retreated across the street where officers' right to invoke their Fifth
all details about the assault. he continued to yell insulting Amendment right against self-
She was forced to reveal details remarks at the officer. The officer incrimination.
about her own personal sexual histo- then pointed his finger at the pedes- The case began with subpoenas
ry during the investigation and later trian and pretended to shoot at him. issued to both officers by a defendant
threatened with termination unless The pedestrian immediately depart- in a criminal case. The criminal trial
she signed a statement recanting her ed.
continued on page 18
Summer 2006 — 17 — Municipal Court Judges Bulletin
Police Officer’s Rights cont.
was the result of an assault on two late court overturned that ruling find- monitored by homicide personnel.
Montgomery police officers in which ing that the district court's ruling was The officers' attorney explained
one was shot. The officers were sub- contrary to established Supreme that they would be giving a statement
poenaed by defendants with the Court precedent which prohibited the under penalty of discipline or termi-
intention of showing police miscon- government from coercing a police nation and that the statements could
duct. officer's waiver of the constitutional not be used against them in a crimi-
Upon being placed on the wit- right against self-incrimination. nal prosecution.
ness stand, both officers refused to The last case for this discussion Upon questioning of the first
answer questions about their investi- is Camacho which was a federal witness, the State's Attorney attempt-
gation of the incident, citing their criminal prosecution of several offi- ed to manipulate the questioning by
right against self-incrimination. cers assigned to the street narcotics soliciting an agreement from the offi-
Following this refusal, the Mayor of unit of the Miami police. The prose- cer that he was not under subpoena
Montgomery ordered the officers to cution was initiated under the federal and would be giving the statement
report to the district attorney to civil rights statute. The facts are voluntarily. The first officer repeat-
divulge all information relevant to rather lengthy and have been con- edly stated that his statement was a
the case. The District Attorney densed for our purposes. compelled statement and that he was
refused to interview the officers rely- This case began with the arrival giving his statement under those con-
ing on the fact that the officers would of the six officers at an intersection ditions. The following three were
obtain immunity against use of the about 6:00 p.m. in Miami which ulti- told substantially the same with the
statements apparently because they mately lead to the death of a man exception that the State Attorney did
were being compelled by the Mayor named Leonardo Mercado. not continue to inform the officers
to give the statements. Immediately subsequent to the offi- their statement was voluntary.
Sometime later the officers were cer's notification that Mercado had Subsequently, all six officers
called a second time to the stand. been seriously injured, two sergeants were indicted by the federal govern-
Again, the officers refused to answer arrived at the scene. After the ser- ment and prosecuted under the feder-
any questions except those from the geants' arrival, they briefly ques- al civil rights laws. All were repre-
District Attorney. The trial judge tioned the officers to determine sented by legal counsel and each
called the Mayor to the witness which ones were witnesses and filed a motion to suppress all state-
stand, and while on the stand, the which ones had hands on contact ments made at the scene of the inci-
Mayor indicated that he would with Mercado. After determining dent as well as those statements com-
immediately fire both officers if they which two had contact, pursuant to pelled at the Homicide Division. The
did not tell everything they know standard operating procedure, all Court determined the statements
about this case. officers were ordered to return to given at the Homicide Division, as
Two days later the officers were police headquarters. well as some statements made by two
called for the third time. On the third Soon thereafter the department officers at their home later, were
occasion, the officers indicated their was notified that Mercado had died indeed compelled and suppressed
willingness to testify, but only of injuries received while in police their use at trial. As to the statements
because the Mayor had ordered them custody. Departmental policy man- at the scene, the Court found them to
to testify. The trial court refused this dated that the Homicide Division be admissible due to the absence of
offer, called the Mayor back to the conduct an investigation of all in- compulsion when given. In other
stand, and suggested that he fire the custody deaths. A shooting team was words, there was no hint of the threat
officers. According to the case, assembled consisting of homicide of discipline or termination when
apparently the trial judge was under personnel, a representative of the making the “at the scene” statements.
the impression the officers would State Attorney's Office, and a repre-
then testify. They again refused. sentative from the Internal Security CONCLUSION
The federal district court ruled Division. The foregoing was not intended
against the officers and held that the All six officers were directed to to be an exhaustive summary of all
state's right to obtain testimony from the homicide office for questioning, cases concerning the right to privacy
the officers outweighed the officers' directed to remain apart, and told not
Fifth amendment rights. The appel- to speak with each other. All were continued on page 19
Municipal Court Judges Bulletin — 18 — Summer 2006
How to Beat the Search Warrant
by: Jeffrey R. Sliz
Sliz/McKinney/Drake Law Firm, LLC
T
here is currently no issue you hear POLICE...OPEN THE OPTION D
greater in the field of criminal DOOR WE HAVE A SEARCH WAR- Do you cooly and calmly wait for the
law than search and seizure. In RANT!! LET US IN OR WE'LL door to crash in; screaming police run-
recent years, “Knock & Talk”; police KICK THE DOOR DOWN. WHAT ning in and yelling on the floor Mother
“Protective Sweeps” of homes and SHOULD YOU DO? @!#* and AMIDST the chaos you
businesses, and Waivers of Fourth say... “Excuse me officer; may I ask
Amendment Rights as a condition of HERE ARE YOUR OPTIONS: you a few questions before I am
probation for persons pleading guilty cursed, threatened and beat down”.
to drug related charges, have weak- OPTION A
ened and eroded a Defendants rights to Quick turn on the T.V. real loud - Jump IN DRUG CASES - MOST TIMES
be protected from unlawful searches or into your favorite chair and pretend to THE MOTION TO SUPPRESS
seizures. On April 6, 2006, I delivered be asleep as the door comes crashing HEARING IS “YOUR TRIAL”
a speech at the ICLE in Atlanta on in; or WHERE YOUR GUILT OR INNO-
“Launching a Successful attack on a CENCE IS DETERMINED
Search Warrant”. My talk basically OPTION B
consisted of a list of approximately 30 Have your naked girlfriend answer the QUESTIONS TO BE ASKED:
questions to be asked and answered by door, hoping to create a diversion
the defense attorney in assessing the while you hide under the bed, or bolt QUESTION 1)
validity of the affidavit and search out the back door; or PROPER EXECUTION
warrant issued in a drug case. Was the search warrant which you
OPTION C are serving upon me properly execut-
LAUNCHING A SUCCESSFUL Take all the pills and powder you got, ed by a neutral and detached magis-
ATTACK ON A SEARCH WAR- inhale and swallow all of it. Start trate as required by law?
RANT yelling “I'm Dying” “I'm Dying” and In the middle of a hearing, I real-
It's early in the morning...dark out- hope you have a close hospital and a ized that the issuing Magistrate was
side, you're dead asleep, trying to work fast ambulance; or also hearing the Motion to determine
off a good drunk and a hell of a the validity of the search warrant. No
buzz...snuggling up to your naked Can Do!
“significant other” ALL of a sudden continued on page 20
Police Officer’s Rights cont.
and the scope of internal affairs standing of the cited cases gives the ammunition against abusive internal
investigations; however, an under- legal counsel and the police officer affairs investigations.
1
Pavesich v. New England Life Ins. Co., 122 Ga. 190 (1905). 925 (1993). 13
Id. Hester 777 F.2d at 1496.
2
Whalen v. Roe, 429 U.S. 589 (1977) and Paul v. Davis, 424 6
Id. Guntharp 307 S.E.2d at 926. 14
Id. Hester 777 F.2d at 1495.
U.S. 693 (1976); Plante v. Gonzalez, 575 F.2d 1132 (5th Cir. 7
Hester v. Milledgeville, 777 F.2d 1492, 1496 (11th Cir. 15
Id. Hester 777 F.2d at 1495.
1978), cert denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 1985). 16
Eastwood v. Department of Corrections, 846 F.2d 627
L.Ed.2d 90 (1979). 8
Moss v. Central State Hospital, et al, 179 Ga. App. 359, (10th Cir. 1988).
3
Fraternal Order of Police v. Philadelphia, 812 F.2d 105 346 S.E.2d 580 (1986). 17
Id. Eastwood 846 F.2d at 631.
(3rd Cir. 1987). 9
Hester v. Milledgeville, 777 F.2d 1492 (11th Cir. 1985). 18
Erwin v. Price, 778 F.2d 668 (11th Cir. 1985); Benjamin v.
4
Garrity v. State of New Jersey, 385 U.S. 493, 17 L.Ed.2d 10
Id. Hester 777 F2d at 1494. City of Montgomery, 785 F.2d 959 (11th Cir. 1986); and
562, 87 S.Ct. 616 (1967); Hester v. Milledgeville, 777 F.2d 11
Id. Hester 777 F.2d at 1495. United States v. Camacho, 739 F.Supp. 1504 (S.D. Fla.
1492 (11th Cir. 1985); City of Atlanta v. Lambright, 205 Ga. 12
Hester v. Milledgeville, 777 F.2d 1492, 1496 (11th Cir. 1990).
App. 558, 423 S.E.2d 265 (1992). 1985) citing Murphy v. Waterfront Commission, 378 U.S. 19
Erwin at 778 F.2d 670.
5
Guntharp v. Cobb County, 168 Ga. App. 33, 307 S.E.2d 52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed 2d 678 (1964).
Summer 2006 — 19 — Municipal Court Judges Bulletin
How to Beat the Search Warrant cont.
As a result of the confusion, and QUESTION 4) standing in the community.
problems with the search warrant, an LACK OF CREDIBILITY OF THE It relates to question of whether or
offer of 10 years to serve went to 10 INFORMANT not oral testimony was also provided
years probation, due to this foul up in a Does the affidavit for the search to the issuing Judge in support of the
case in Madison County. warrant contain personal information issuance of the search warrant. In
For Further Information (See about the affiants lack of credibility State vs. Michael Wages, the Judge
Daniels § 4-5, 4-6) known to the police, his criminal his- said she could not remember being
tory, or terms of the deal made with the told the name of the confidential
QUESTION 2) police or prosecutors to give this infor- informant, but could not positively dis-
DESCRIPTION OR PLACE TO BE mation? The issuing Judge should be pute the affiants statement that the
SEARCHED properly advised of the negative fac- name was provided to her. The Officer
Does the affidavit for the search tors regarding the credibility of the testified he gave the information to the
warrant contain a specific and accu- informant in order to effectively weigh issuing Magistrate and the Court
rate description of the residence or the the reasonableness of the information upheld the warrant.
structure to be searched? provided and to review possible
Often times business parks, drive- motive for the confidential informant QUESTION 7)
ways, or trailer park streets, in the providing the information to the police STALENESS OF THE INFORMA-
“exclusive areas” our clients reside or which might affect its truth and verac- TION
work in have several dwellings or ity. Was the information contained in
structures on them. The structure to be the affidavit for the search warrant
searched should be adequately and QUESTION 5) timely? Always determine if all of the
specifically described so that the offi- INAPPLICABLE GENERAL information presented in the affidavit
cer executing the warrant can readily INFORMATION CONTAINED IN is “dated”- to be able to determine if
identify the actual structure to be THE AFFIDAVIT the information is “stale”- when was
searched. Did the affidavit for the search he told the information; when did he
NOTE: The lack of a proper warrant contain “general information” see the methamphetamine in the
description also helps attack the credi- about drug dealers, drug dealings, house- Timeliness of the information is
bility and reliability of the officer or paraphernalia, scales, money records a KEY ISSUE in validity of search
confidential informant providing the which are recited in the affidavit, but warrants.
information for the affidavit. do not apply to or is not evidence in
For Further Information (See this particular case regarding the per- QUESTION 8)
Daniels §4-12) Descriptions of places son or residence sought to be ORAL TESTIMONY
to be searched. searched? If so, the false or inapplica- Always question the issuing mag-
ble information should be stricken, and istrate as soon as possible, as to
QUESTION 3) the affidavit reconsidered without the whether or not there was any “oral tes-
VERACITY & CREDIBILITY OF false or misleading evidence. timony” presented in addition to that
THE INFORMANT contained in the written application for
Does the affidavit for the search war- QUESTION 6) the search warrant. Send a letter to the
rant contain sufficient information DISCLOSURE OF THE IDENTI- Judge confirming the existence or lack
regarding the confidential informant to TY OF THE INFORMANT of oral evidence presented at time of
establish his veracity and credibility in Was the name of the confidential issuance. See Attachment “B”, the
order to enable the issuing Judge to informant disclosed in the affidavit for form letter.
determine that the information provid- the search warrant or given orally to
ed should be considered accurate and the issuing Judge? The law is entirely QUESTION 9)
truthful? See Attachment “E”, a short different if the confidential informant CRIME - EVIDENCE TO BE
summary of relevant case law. is identified to the issuing Judge or not SEARCHED FOR
For Further Information (See identified. If the name is given, the Does the information or evidence
Daniels § 14-81) magistrate may use her personal sought in the search warrant
knowledge of his credibility: prior use “match up” to or relate to the type of
as a confidential informant, etc., evi-
continued on page 21
dence of his truthfulness in the past;
Municipal Court Judges Bulletin — 20 — Summer 2006
How to Beat the Search Warrant cont.
crime alleged? Does it relate to the QUESTION 12) often leads to “in plain view” discov-
information given by the applicant or INVENTORY ery of other items. For example, not
confidential informant in the affidavit Was a “return” or “inventory” only can a person be charged with pos-
for the search warrant? Often times made on the search warrant? The law session of methamphetamine, now
articles are sought to be searched for requires that a verified return be made there are lesser offenses for possession
which are not related to the crime after the search warrant is executed. A of items used in making meth where
charged (i.e.: records, packaging mate- person is entitled to a copy of the the finished product is not present at
rials, phone records, etc.) for a charge search inventory made. Unfortunately the time of the search, but it appears
of possession of marijuana. Also the law is very loose on the require- that meth is being manufactured.
objects sought must be directly related ment of the “return” - Not a very good Try to exclude as many items as
to affidavit information given to the basis for attack.... Examine it very possible which are not arguably within
issuing Judge. carefully - what was found, where, and the description of the items to be
what was actually tested by the crime seized. The exclusion of evidence
QUESTION 10) lab. A District Attorney will not be often times makes for testimony that
ITEMS IN AFFIDAVIT ITEMS IN able to establish who had what or what appears incomplete from the witness
SEARCH WARRANT was tested, if each item submitted to on the stand and difficult for the jury to
Does the actual Search Warrant itself the Crime Lab is not specifically follow, which may lead to an acquittal.
allow investigators to search described, and information put down
for evidence other than that sought in as to where, or on whom, it was found. QUESTION 15)
the affidavit used in the SCOPE OF SEARCH AREA TO BE
vs. application for the search warrant? QUESTION 13) SEARCHED vs. AREAS IN
EXAMPLE: The affiant is seeking AREA SEARCHED WHICH ITEMS ARE FOUND
to search for marijuana, baggies, Was the area actually searched Did the search itself exceed the
scales, records of drug transactions, with the description of the area to be scope of the area authorized to be
phone records, packaging devices, searched? Was the description specif- searched by the terms of the search
books on manufacturing marijuana, ic enough for a reasonable person to be warrant? Check the inventory sheets
photos of growing marijuana for a sim- able to locate the specific area to determine exactly what items were
ple Possession of Marijuana case. described in the search warrant. In a found where vs. what areas were
How do most of these items apply to a Gwinnett County case (State vs. Jason authorized to be searched. Items found
possession case? A charge of posses- Sidney Green), the description was in areas which were not authorized to
sion is clearly not the same as manu- “the exclusive area of Jason Sidney be searched, should be excluded, and
facturing or sales of drugs and if not Green”, that means absolutely nothing. any other evidence derived therefrom.
challenged, a mere “possession” case This search was set aside because an
may become a sale case or a posses- ordinary person would not be able to QUESTION 16)
sion with intent to distribute case with determine what area was to be PROTECTIVE SWEEP
a greater sentence possible. searched pursuant to the description in Was the area of the search expand-
the search warrant. ed under the guise or pretense of con-
QUESTION 11) ducting a “protective sweep for offi-
EXECUTION OF THE SEARCH QUESTION 14) cers safety”? In a recent case I han-
WARRANT ITEMS SEIZED dled, the Court ruled that searching the
Was the search warrant executed Were items seized which were not house for “officer's safety” was not
within 10 days of the issuance of the within the items described in the valid, 3 hours after police arrived, ini-
search warrant, or as provided in the search warrant and authorized to be tially searched the residence, saw no
search warrant? If not the search is seized? Obviously the fewer items one and heard nothing during the peri-
invalid. presented in Court as physical evi- od before the protective sweep. (State
For further information (See dence of a crime the better- Four pages vs. Jason Sidney Greene).
Daniels §4-16 - §4-23). of items seized which are necessary to
constitute a meth lab will not help your
client convince the jury that he was
simply making dinner...
continued on page 22
Exceeding the Area to be searched
Summer 2006 — 21 — Municipal Court Judges Bulletin
How to Beat the Search Warrant cont.
QUESTION 17) described in the warrant if not men- own sentence. He hid them in the
AREAS SEARCHED vs. ITEMS tioned in the search warrant. bathroom - told police the transaction
SEARCHED FOR For further information (See took place in the bathroom - police
Were areas searched, which could Daniels §4-21) search bathroom, drugs found -
not contain the items authorized to be VOILA! One cooked goose medium
searched for in the warrant? What are QUESTION 20) rare!
they searching for? Where were they CONTROLLED BUY
looking for it? (Re: an elephant is not Was the search warrant based on a QUESTION 22)
to be found in the refrigerator). purported “controlled buy”? If so; “NO KNOCK” PROVISION
For further information (See 1) On what basis was the controlled Was there a NO KNOCK PROVI-
Daniels §4-52, Page 267) buy set up? SION in the search warrant based
2) When was the controlled buy? on persons being armed and danger-
QUESTION 18) 3) Who observed the controlled buy? ous? Door kicked in - but no guns or
CURTILEGE AND RESIDENCE 4) Was the confidential informant weapons found. This can be used to
Were curtilege, out buildings or adequately searched before and after revert back to your attack on the credi-
vehicles authorized to be searched the controlled buy? bility and reliability of the confidential
according to the “black and white” 5) Who allegedly made the sale to the informant and other information which
terms of the search warrant? confidential informant? was provided to the issuing Judge to
Read closely - Does it say house or 6) Was there marked money use in bolster the validity of the information
what else is included? What is defined the controlled buy? in the affidavit, and now used to attack
as the “residence” in the description 7) Exactly what was seen by the offi- it.
contained in cers during the controlled buy?
the affidavit? Was the area to be 8) How long was the confidential QUESTION 23)
searched expanded in the search war- informant in the residence to make the GOOD FAITH EXCEPTION
rant? Example: the affidavit refers buy? Are the police contending that a
exclusively to inside of the house - not 9) Was the amount allegedly spent to portion of the evidence seized,
adjacent barn, separate garage or vehi- purchase the quantity of illicit drugs although not described in, or author-
cles and anything found in other areas approximately equal to street value of ized by the affidavit for the search war-
should be suppressed. the contraband? rant or warrant should be allowed as a
10) Find out as much as possible about product of the GOOD FAITH effort of
QUESTION 19) time of buy. Can you find witnesses to the officer? Georgia does not follow
SEARCH OF INDIVIDUALS testify to the contrary that the the Federal Rule, set forth in United
Were any persons or vehicles Defendant was not there or witnesses States vs Leon 468 US 897 (1994).
searched, that appeared or came onto that state no sale was made? There is no Good Faith exception in
the property during the course of the Georgia, see (Gary vs. State 262 GA
execution of the search warrant, and QUESTION 21) 573 (1992). But ALTHOUGH the
were not described in the warrant? CONFIDENTIAL INFORMANT “GOOD FAITH” EXCLUSION does
The issue is were the Persons pres- PLANTING EVIDENCE not apply, searches of vehicles are not
ent during the search, named in the Has the confidential informant and excluded if the wrong transmission (re:
Search Warrant or were they Persons the alleged seller ever “done existence of bench warrants, suspend-
that arrived during the search. Police business” before? How often has the ed license, etc. established the neces-
must have independent probable cause confidential informant been sary probable cause to search the vehi-
to search persons who arrive during the in the house or residence of the alleged cle.
course of the execution of a search seller? For further information (See
warrant; not so for persons who are In a case involving the search of a Daniels §2-26).
located at the residence when a search meth lab in Lawrenceville, Georgia,
warrant is executed. But persons can the Defendant acted as a confidential
be patted down for officers safety or to informant and actually took drugs in
prevent attack, or to prevent conceal- with him and planted the drugs to cre-
ment or disposal of contraband ate a bust on a competitor to reduce his continued on page 23
Municipal Court Judges Bulletin — 22 — Summer 2006
How to Beat the Search Warrant cont.
QUESTION 24) (Daniels §14-82). evidence room. Later the Detective
SEARCH WARRANT INFORMA- reads the report, goes to the briefcase
TION vs. TESTIMONY AT TRIAL QUESTION 26) and opens it, finds drugs and a gun -
Does the confidential informants STANDING held to be improper search without
trial testimony match the informants Does the accused have standing to search warrant.
statements given to the police and contest the search of his person or For further information (See
incorporated into affidavit for search property? Be careful what you ask for. Daniels §4-57)
warrant? Whose purse is it? Do you want it to
In State vs. Michael Wages, Co- be yours? QUESTION 29)
Defendant, Phillip Boss' testimony at Condemnation, Its your car, you PROBABLE CAUSE
the time of trial, significantly differed want it back vs. Criminal Charges, pre- Does the affidavit in support of he
from the events and information he sumption of possession and control as search warrant contain sufficient
related to the police as a confidential owner of the car regarding drugs found information to establish probable
informant at the time of his arrest and in the car. cause for the issuance of the warrant?
which was used in the affidavit for the See State vs. Jason Sidney Green, The cases of Spinelli vs. U.S. 393
search warrant. where the Defendant said he wasn't U.S. 410 (1969) and Aguilar vs. Texas
Argument - The informant was living there, and the State argued that 378 U.S. 108 (1964) are still part of the
sworn at the time of trial, not sworn he had no standing but, that he had decision making process regarding
when giving information to the police control over the “exclusive area” reliability of the informer. But now the
to support the issuance of the search where the drugs were found. “TOTALITY OF THE CIRCUM-
warrant. Presumption is that he told STANCES” is the test under Illinois
the truth under oath and gave false QUESTION 27) vs. Gates 462 U.S. 213 (1983).
information in the affidavit. You EXPECTATION OF PRIVACY
should move to have the Court recon- Does the person seeking to sup- QUESTION 31)
sider the finding of probable cause for press the search have an expectation of SENTENCING
the issuance of the search warrant, privacy in the area to be searched? When all else fails and the drugs
based on the inconsistent testimony What about abandoned property? In a are not suppressed, what do I say at the
and possible perjury. pending case I have a Defendant that time of sentencing.
was riding a motorcycle and he
QUESTION 25) allegedly threw dope into a ditch. The FACTORS TO BE RAISED IN SEN-
FALSE INFORMATION IN THE Court held that he had no standing to TENCING:
AFFIDAVIT contest the stop and search of his per- 1) Character Witnesses on behalf of
Does the affidavit for the search son and motorcycle. What about Trash the Defendant
warrant contain false information upon Pulls? Check the dates on documents 2) Lack of a Prior Record
which the Judge relied in authorizing in the trash can to determine “stale- 3) Personal history; Work history;
the search warrant? If ness”. What evidence is shown as to Contributions to the community
false information is contained in the ownership? The law is simple, you 4) Make a reasonable and plausible
affidavit for search warrant, the reme- heave it-your rights leave with it! request, not something stupid!
dy is for the information to be exclud- QUESTION 28)
ed and the validity of the remaining SECOND SEARCHES IN CONCLUSION - REMEMBER
information examined to determine if Do police have a right to make a As to the Search Warrant:
probable cause still exists. For exam- second search of a vehicle or 1) Take it apart piece by piece;
ple, the confidential informant says he premises, based on the initial search 2) Assume Nothing;
witnessed the Defendant have dope, warrant, after the original search has 3) Object to Everything;
make sales over the last 3 months. been concluded? NOT GENERALLY. 4) Defendants will send new clients
Evidence is that the Defendant was in EXAMPLE: In State vs Liggett, a if you Fight like Hell- whether or not
jail during the last 3 months and there- “hit and run” case, the driver fled from you win or lose; remember that the
fore the information is obviously false. the car; items recovered from the car bigger the case the more pressure on
For further information See and stored at the Police Department
continued on page 24
Summer 2006 — 23 — Municipal Court Judges Bulletin
Caselaw Update How to Beat the
Search Warrant
The past couple of months have been BE IT ENACTED BY THE GENER-
slow for appellate decisions involving AL ASSEMBLY OF GEORGIA: cont.
traffic; 3 important decisions are:
SECTION 1. the Judge to uphold the search
ARTICULABLE Code Section 15-6-3 of the Official 5) Think outside of the box;
SUSPICION/ARREST Code of Georgia Annotated, relating to 6) In bad cases remind them they will
St. v. Dixson A06A0592 7/5/06 Officer terms of court for the superior courts, is win, but can they stand the “PAIN OF
cannot stop a car solely because a check amended by striking paragraph (20) and WINNING” several days at trial, end-
of the driver's tag revealed an inserting in its place a new paragraph less objections and the appeal which
“unknown status” of insurance. (20) to read as follows:
will follow.
"(20) GWINNETT CIRCUIT:
CHEMICAL TESTING Gwinnett County - First Monday in
7) You can't plead a case, if you can't
Stewart v. St. A06A0782 7/10/06 January, March, May, July, June, and try a case;
Stewart argued that, among other November December and second 8) Always file a Motion To Suppress
things, the Intox 5000 results in his case Monday in September." in a drug case, sometimes “S**T HAP-
should have been suppressed because: PENS” for an example: drugs are lost;
1. It is not admissible as scientific evi- SECTION 2. witnesses unavailable; police officers
dence under Harper, because the This Act shall become effective August move and/or leave the department -
machine can be manipulated by the 1, 2006 when no motions are filed “S**T
officer, and the DFS does not follow DON'T HAPPEN.
their own rules for inspection of the One more case where my good friend,
machine. The court summarily dis- Howard Cook was reversed while sit- THANK YOU
missed all arguments and affirmed ting in Cherokee County: Lyttle v. St.
Stewart's conviction. A06A1015 5/12/06 Lyttle was driving
out of a dead end road at 1:30 am, a
Use this information to your best
road known for all sorts of illegal activ- knowledge in assessing the validity of
IMPLIED CONSENT ity, when an officer stopped her, asked a search warrant. For all of the attach-
Hannah v. St. A06A0759 6/30/06 permission to search, and as a result ments, warrants, affidavits used in the
Hannah was involved in an accident found some marijuana; Judge Cook actual presentation and for the other
involving serious injuries; he asked trial ruled the stop valid; The Court of materials on warrantless searches; car
court to suppress blood test, arguing Appeals ruled the officer did not have searches; recent case law changes, con-
that the portion of 40-5-55 involving articulable suspicion to stop. tact ICLE to get a copy of the program
requests for chemical tests in cases materials - Criminal Law - Hot Topics
involving serious injuries has been Editorial Comment: When did the gov- in Search and Seizure, given on April 6,
ruled unconstitutional. The Court of ernment assume responsibility to obtain 2006 066302. If you need help or
Appeals, agrees, HOWEVER, under “justice” for “victims” of crime?? The
someone to exchange ideas....call me.
Hough, if the officer has probable cause law used to be that the District
to believe the driver was DUI, then a Atty/Solicitor represented the people of
Special Thanks to my Paralegal,
request for a chemical test is valid. the State for crimes against the State; if Janie Deal for helping me complete this
an individual was a victim of a crime, information package.
ATTENTION GWINNETT that person could exercise his remedies Sincerely yours and good hunting,
LAWYERS!!: Effective August 1, against the villainous criminal by seek-
2006, terms of Gwinnett Judicial ing a “civil” action for damages; Alas, Jeffrey R. Sliz
Circuit have changed; terms now begin now the prosecutor not only represents Sliz/McKinney/Drake Law Firm, LLC
the first Monday in March, June, the people, but also the individual vic- 280 Constitution Blvd.
December, and the 2nd Monday in tim; based on this years political cam- Lawrenceville, Georgia 30045
September; see HB 1423 below: paigns, one would think that the solici- 770-963-8607
tor is paid by the taxpayer to collect
damages for individuals. Wow, what a
country!
Mickey
Municipal Court Judges Bulletin — 24 — Summer 2006
Summer Conference and Traffic Seminar
June 2006 • Savannah, GA
Summer 2006 — 25 — Municipal Court Judges Bulletin
The Listserv … Is Ready to Serve You!
I
f you have not joined, do so now. notices that may other wise require the Traffic Court Listserv, please
For those of you who are not sending postcards, making long dis- contact LaShawn Murphy, AOC, at
aware here are a few reasons to tance calls (faxes) and playing phone (404) 651-6325 or via email at mur-
join listserv. tag (remember the cost buildup). phyla@gaaoc.us
Listserv's purpose is to automat- The Council encourages you to Welcome aboard to all new sub-
ically send information out as well as subscribe to this list. It is convenient, scribers!
provide interaction between all informative, and not to mention, it
Traffic Court and Municipal Judge can be used as a great reference in
Subscribers. referring to past events. Subscribing
takes one call or e-mail. Once you
1) Its an inexpensive way to interact have subscribed, you will receive a
with fellow City Judges and discuss welcome message, providing a pass
issues concerning your class of code and instructions on using the
court, service. If you have any questions
2) Great way to seek out advice on about this service, please contact
unusual cases or cases you may have AOC Webmaster Brian Collins at
not experienced before and, (404) 463-3804 or
3) It's a quick way to send urgent collinsb@gaaoc.us To subscribe to
Council of Municipal Court Judges
Administrative Office of the Courts
244 Washington Street, SW • Suite 300
Atlanta, Georgia 30334
MARGARET GETTLE WASHBURN
Chief Judge, Sugar Hill & Buford
Editor
DAVID L. RATLEY
Director
MARLA MOORE
Associate Director for
Court Services
ASHLEY G. STOLLAR
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