Livingston v. The State., 155 Ga. App. 884, 273 S.E.2d 621 (1980)
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Judgments affirmed. Deen, C. J., and Sognier, J., concur.
Summary
Judgments affirmed. Deen, C. J., and Sognier, J., concur.
Text
Mark J. Kadish, Rhonda A. Brofman, for appellants.
Search and seizure. The appellants, Dunivant, Anthony and Livingston, were tried jointly and convicted of a violation of the Georgia Controlled Substances Act (possession of methamphetamine) and each sentenced to serve four years. Each appellant enumerates as error the denial of a motion to suppress the fruits of an illegal search and their subsequent conviction based upon the evidence of drugs seized from their persons and presence.
The relevant facts show that a firm representing itself as Anthony and Associates placed an order with Scientific Products, a chemical supply company, for certain chemicals and equipment such as burners and beakers used in manufacturing chemical compounds. Most of the chemical substances and equipment were delivered to Anthony and Associates at an address in Chamblee in February, 1979. However, one of the chemicals ordered was not available and was back-ordered by Scientific Products. The back-ordered chemical was received by Scientific Products in late May or early June, 1979. Because the chemicals were specific for the manufacture of methamphetamine, and apparently in accordance with instructions from the U. S. Drug Enforcement Agency, Scientific Products about June 1, 1979 telephonically notified an agent of the DEA that someone from Anthony and Associates had ordered chemicals useful in the manufacture of methamphetamine. The DEA agents also were informed that one substance essential in the compounding of methamphetamine (benzyl-chloride) had not been available and had been back-ordered. Further, though it is not clear, there appears to have been two boxes of benzyl-chloride in the back order. When the chemical was received and at the directions of the DEA, an electronic "beeper" was placed in each box of benzyl-chloride. Delivery was to be effected to the purchaser about July 1. After July 1, the beepers were activated each morning and deactivated each evening by an agent of the DEA pending the pick-up by someone from Anthony and Associates.
In early June, the Chamblee address had been placed under surveillance and it appeared to be a residence, not usable as a manufacturing site. Commencing on July 1, agents of the U. S. and state DEA and G. B. I. placed the business premises of Scientific Products under surveillance and maintained that surveillance for about two weeks. A DEA airplane and pilot were standing by at a nearby airport and five to seven vehicles were on call to assist in a "tail" of any vehicle used to pick up the benzyl-chloride.
On July 11, the appellant Anthony appeared at Scientific Products to accept delivery of the chemical. Anthony attempted to pay for the chemical by check and delivery was refused. The next day Dunivant appeared with cash and accepted delivery of the benzyl-chloride, with the beepers activated in the boxes. The chemical voluntarily was placed into a 1977 Chevrolet Blazer by Dunivant who was not aware of the presence of the beepers. Dunivant then proceeded in a westerly direction toward Carrollton. Five to seven police cars were engaged in keeping the Blazer under constant surveillance with the cars rotating as "point" vehicle so that Dunivant would not be aware that he was being followed. The plane was called into the surveillance and kept the Blazer under constant observation on the trip into Carroll County. One of the tailing vehicles had a receiving device as did the aircraft. All vehicles and the plane were in communication with each other. The Blazer was kept in constant visual surveillance until Dunivant turned off the paved highway onto a dirt road in rural Carroll County. At that time because of heavy tree foliage alongside the roadway, the plane and the other vehicles lost contact with the Blazer for approximately five minutes. The plane, however, could hear the beeper. In effect, by triangulating flights over the wooded area, the plane isolated the sound to an area of about 100 yards. Physical surveillance up the road by DEA and G. B. I. agents established that the sound had to be coming from one of two houses on the heavily wooded roadway. Closer observation disclosed the Blazer parked at one of these houses. Based upon the location of the Blazer and the fact that it apparently had arrived at its destination, the officers proceeded to Carrollton and obtained a search warrant for that particular house. Armed with the warrant, the officers returned to the house and in a small building immediately adjacent to the described house, the officers observed one of the appellants in an open doorway, one holding a beaker over a heat source and the other stirring something in the beaker. This substance was seized and subsequently proved to be methamphetamine. The warrant described and sought to seize not only the benzyl-chloride but the chemicals purchased and delivered in February.
Each appellant argues that the emplacement of the beepers in the benzyl-chloride constituted a search and that search required a first warrant which admittedly was not procured. They further complained that the ultimate search warrant issued in Carrollton was based upon misleading information in that no mention was made of the use of an electronic beeper and the affiant averred only that the Blazer had been under constant surveillance from the time it left Atlanta until the time it arrived at the house in Carroll County. Lastly, each appellant argues that the information in the warrant was stale because no evidence was offered to show continuously the whereabouts of the chemicals and equipment purchased in February, which were alleged in the warrant to be part of what was sought to be seized. Held:
1. Appellants contend that the insertion of the beepers into the boxes of chemicals constituted a search which falls within the ambit of the Fourth Amendment. In support of this contention, they cite United States v. Holmes, 521 F2d 859, 864-867 (5th Cir. 1975) and State v. Hendricks, 43 N. C. App. 245 (151 Ga. App. 546, 547 (1) (260 SE2d 413), though involving a right to exercise a momentary stop, is apropos. There we held that the Fourth Amendment does not require a policeman who questions the precise level of information necessary for probable cause based upon the facts available to him to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, it may be the essence of good police work to adopt an immediate response. We do not mean to imply here that probable cause did not exist, for we are satisfied that under the totality of the information presented to the issuing judge, the only reasonable conclusion was that what was originally intended (the manufacture of methamphetamine) finally was to be accomplished by the appellants. We hold that the information furnished the issuing judge was not stale. See Mitchell v. State, 239 Ga. 456, 458 (2) (238 SE2d 100).
The second basis for the contention that the search warrant was improperly issued is that certain omissions or misstatements were made that mislead the issuing judge. These omissions and misstatements are alleged to be that the affiant did not disclose to the judge that beepers had been placed in the boxes of benzyl-chloride; that the tailing vehicles had temporarily lost contact with appellants' Blazer and had to rely on the electronic sounds to relocate the Blazer; that though the agents had had ample time to obtain judicial authorization to place the beepers in the boxes, no such authorization had been obtained; that an airplane had been used and became necessary to locate the vehicle carrying the benzyl-chloride; and, that the affiant had no positive knowledge that the chemicals delivered in February were at the Carroll County location or indeed where the chemicals had been since delivery in February.
As should be apparent from the preceding discussion of the propriety of placing the beepers in the benzyl-chloride, we have already confronted all these objections. Inasmuch as the implanting of beepers in the chemicals occurred at a time when the substance was the property of the chemical manufacturer rather than appellants, no constitutional violation ensued at the time of the insertion. As to the transfer of the boxes with the beepers to the ownership of the appellants, we have held that where there is probable cause to believe that a crime is intended or is being committed, the insertion of a non-recording device which acts only as an aid to and in effect is an extension of the senses of the surveilling officer, such insertion is a permissible intrusion and does not amount to an invasion of an area of privacy protected by the Fourth Amendment. For the same reason, it was not a misstatement that the officers had maintained contact with the Blazer throughout the entire journey for whether it was visible or audible, the contact was maintained by one of the senses or a proper extension of one of the senses of the surveilling officers. Also, because we have held that the use of a beeper under the facts of this case was proper, it was not misleading to the magistrate not to reveal that an airplane was used or that part of the time the beepers were essential to maintain contact, or that no judicial prearrangement or authorization had been obtained to insert the beepers in the benzyl-chloride. These are simply technical descriptions of how continuous surveillance was maintained. Lastly, in our discussion of the staleness issue, we concluded that it was reasonable for the affiant to relate and the magistrate to assume that the chemicals sold in February were still in the possession of the appellants, without any additional effort by the affiant to attempt to account for the whereabouts of those chemicals throughout the period from February to July. In short, we do not agree with the contention that the magistrate was misled.
In the third facet of their argument, appellants contend that the face of the warrant fails to disclose probable cause. In support of this phase of their argument, appellants contend, cumulatively, (1) the fact that the information clearly was stale; (2) the fact that a computer check showed that Anthony had been a suspect in another state of an investigation into manufacture of methamphetamine; (3) that the Chamblee address was not a manufacturing situs; (4) that the purchase and possession of benzyl-chloride is a lawful act; and, (5) that there is no connection between the July delivery of benzyl-chloride with the February chemicals, fails either individually or in connection to establish probable cause.
We have considered each of these arguments in other contexts within this opinion, with the exception of Anthony's earlier connection with an illegal methamphetamine operation. As indicated hereinbefore, we find ample evidence to satisfy the issuing judge of the probability that an on-going crime was being committed. Thus, we find this argument also to be non-meritorious. For all the reasons expressed herein, we conclude that appellants' two enumerations of error have no merit.
William F. Lee, Jr., District Attorney, for appellee.
1980
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