Oswell v. State

Beasley, Judge,

dissenting.

I dissent because it appears that this case should be transferred to the Supreme Court of Georgia. It raises an issue of construction of the Georgia Constitution, as I understand that function to differ from the function of judicial application of a constitutional provision. The Supreme Court has exclusive jurisdiction over construction. Ga. Const. 1983, Art. VI, Sec. VI, Par. II (1).

The sole question enumerated in this appeal is whether, under Georgia’s constitution, the search was justified without a warrant. There is not pointed out by anyone any Georgia Supreme Court case which construes the Georgia constitution in regard to automobile searches made incident to arrest when there are no exigent circumstances justifying search, nor probable cause. Appellant even argues that “Finding the search in this case a violation of state constitutional rights does not require overruling or failing to follow a single case decided by this court or the Georgia Supreme Court because the state constitutional ground has not been raised before.” Thus, the question has yet to be addressed.

The majority opinion clearly demonstrates that it is construing the Georgia constitution. As I read it, it says that the Georgia provision means the same thing as the United States Constitution and is identically construed in the context of a warrantless auto search incident to a valid arrest. The Court arrives at this conclusion not because the Georgia Supreme Court so held, but because the words of the two constitutions are the same.

That is constitutional construction, albeit by only one of the numerous methods available. But the same text does not mandate the same meaning. See Cooper v. Eugene School Dist. No. 4J, 301 Or. 358 (723 P2d 298, 307) (1986).1 If it did, then there would be no need for *38state supreme court construction of that state’s own constitution, and the United States Supreme Court rather than the Supreme Court of Georgia would be construing the state constitution. And it would be doing so unintentionally, since its construction of the federal constitution does not expressly single out or take into account those state constitutions which, because identical in words, will ipso facto be clothed with the same construction.

In this particular case, that is the result. The two search and seizure provisions are identical in wording. That being so, the majority concludes that the federal constitutional standard fashioned in New York v. Belton, 453 U. S. 454, 459 (101 SC 2860, 69 LE2d 768) (1981) constitutes the standard affixed to Georgia’s constitutional provision. If that were a correct principle of federalism, then of course the Georgia Supreme Court would not have to construe the Georgia constitution independently and we would simply apply the Beltonworded measurement, as a proper exercise of the functions in our domain.

But as we recognized in Andrews v. State, 175 Ga. App. 22, 25 fn. 1 (332 SE2d 299) (1985): “Adopting the same test for the state constitution as the United States Supreme Court fashioned for the federal constitution does not mean that the state guarantee is identical or is to be identically construed. Its meaning is always finally up to the Supreme Court of Georgia.” I know of no U. S. Supreme Court or Georgia Supreme Court authority which would confine this statement to constitutional provisions that were other than identical.

The very fact that the majority cites no authority for the construction it ascribes to the Georgia search and seizure clause in this case shows that this Court is the one which is so construing it. Apparently there is no case declaring that the United States Supreme Court’s Belton standard is adopted also as Georgia’s rule with respect to its own constitution.

In the very first year of this Court’s history, the question of jurisdiction came up and the distinction between construction and application was made. “A case that involves merely the applicability of a concededly unambiguous clause of the constitution to a given state of facts raises no question of construction. Likewise, where a clause in the constitution has been construed by the Supreme Court as having a certain meaning and intendment, and such fixed judicial construction is unchallenged, there is still no question raised as to the construction of a clause of the constitution ... if the identical question of construction has been before the Supreme Court, and that court has judicially given a construction to the clause in question, it is un*39necessary to certify2 and to continue to certify such a question to the Supreme Court every time a party may seek to raise it.” Fews v. State, 1 Ga. App. 122, 124-125 (58 SE 64) (1907). For other cases in this connection, see Gulf Paving Co. v. City of Atlanta, 149 Ga. 114 (1) (99 SE 374) (1919); Maner v. Dykes, 183 Ga. 118, 119 (1) (187 SE 699) (1936); Head v. Edgar Bros. Co., 187 Ga. 409 (200 SE 792) (1939); Rowland v. State, 199 Ga. 340 (34 SE2d 577) (1945).

Decided November 5, 1986 R. Glen Galbaugh, for appellant. Lewis R. Slaton, District Attorney, Andrew J. Weathers, Joseph J. Drolet, Raymond C. Mayer, Assistant District Attorneys, for appellee.

The case before us differs from Fews, which case the Court analyzed as raising no question as to the construction of the constitution. “[H]e merely contends that, under the well known, well recognized, and unquestioned construction ... of that provision of the constitution the ‘same-transaction test’ should be applied to his plea of former jeopardy.” Id. at 125. In our case appellant asks us to give meaning to the Georgia constitution which has not heretofore been given. This we cannot do, because the language of the Georgia search and seizure provision does not “plainly and unambiguously” incorporate the Belton rule, nor has the Georgia Supreme Court juridically incorporated it. Of course, we would not have to wait for the latter, i.e., Supreme Court construction where the former, i.e., language “too plain and unambiguous to require any interpretation or construction” obtained. Cox v. State, 19 Ga. App. 283, 290 (91 SE 422) (1916). As to this latter, the theory is that the language is “susceptible of but one construction.” Id. at 289.

Thus, the case should be transferred.

I am authorized to state that Judge Pope and Judge Benham join in this dissent.

For an overview of state constitutional law development, see Special Section, “The National Law Journal,” Sept. 29, 1986. See also Linde, “E Pluribus — Constitutional Theory and State Courts,” 18 Ga. L. Rev. 165 (1984).

In those days they certified the question; nowadays we are bound to transfer the whole case.