DeFreeze v. State

Stolz, Judge.

In this appeal from the judgment of conviction of three counts of violations of the Georgia Controlled Substances Act, the sole issue, apparently of first impression in this state, is whether the search was illegal, hence the evidence seized pursuant thereto subject to the defendant’s motion to suppress, because the police officer making the search exhibited to the defendant merely a photocopy of the valid, existing search warrant, which original warrant was in the officer’s desk drawer some 10 miles away.

Code Ann. § 27-305 (Ga. L. 1966, pp. 567, 569) provides that "[t]he warrant shall be issued in duplicate” (emphasis supplied), and Code Ann. § 27-306 (Ga. L. 1966, pp. 567, 569) provides that "[i]f the warrant is executed the duplicate copy shall be left with any person from whom any instruments, articles or things are seized, . . .” (Emphasis supplied.)

The Code does not further define the meaning of "duplicate” in the context quoted above. This presents no *11particular problem, as the word is one of common usage and can be given its ordinary meaning. Code § 102-102 (1). The obvious purpose of the statutes is to give the persons affected by the warrant the basis for notice of its issuance. The original can be duplicated in any number of ways. What is essential is that the duplication be the alter ego of the original — that there be a sameness, an indivisibility in the content of the original and the duplicate. Thus the photocopy, when utilized by executing, serving, and returning it as provided in Code Ann. §§ 27-305,-306, supra, becomes a "duplicate copy” within the purview of § 27-306, and is not analogous to secondary evidence, which is admissible in evidence only upon a showing of the inaccessibility of the primary evidence. Code § 38-212.

The cases of Adams v. State, 121 Ga. 163 (3) (48 SE 910) and Shafer v. State, 193 Ga. 748 (20 SE2d 34), cited by the appellant, are not authority to the contrary. In those cases the police officer had in his possession neither the original nor any sort of copy of the warrant (an arrest warrant in Adams; a search warrant in Shafer) whereas it is required that "[i]f the warrant is executed the duplicate copy shall be left with any person from whom any instruments, articles or things are seized...” Code Ann. § 27-306, supra.

In Lyons v. State, 503 SW2d 254 (Texas, 1973), the Court of Criminal Appeals of Texas approved the use of Xerox copies of the search warrant and the affidavit, signed by the magistrate. While it might be argued that the magistrate’s signature on the already prepared photocopy might be a higher or more valid form of duplicate copy in that it constitutes his approval of the photocopy as an authentic copy, nevertheless, inasmuch as the photocopy is an actual photograph of the document signed by the magistrate, we hold that it is entitled to an equal status of validity, constituting the "duplicate copy” required by the statute.

Accordingly, the trial judge did not err in overruling the motion to suppress and entering the judgment on the verdict.

Judgment affirmed.

Bell, C. J., Deen, P. J., Quillian, Clark, Webb and Marshall, JJ., concur. Pannell, P. J., and, Evans, J., dissent. *12Argued June 30, 1975 Decided September 5, 1975 Rehearing denied October 3, 1975 Byrd, Groover & Buford, Denmark Groover, Jr., Alfred D. Fears, for appellant. Edward E. McGarity, District Attorney, Kenneth Waldrep, Assistant District Attorney, for appellee.