State v. Harber

Sognier, Judge,

dissenting.

I respectfully dissent because I believe Hill v. State, 193 Ga. App. 280 (387 SE2d 582) (1989) was correctly decided. The facts in Hill parallel those in the case at bar. In Hill, the defendants, two University of Georgia students, were convicted of drug offenses arising from possession of contraband found during a search of their off-campus apartment by university police. In overruling the denial of the defendants’ motion to suppress, this court held that because OCGA § 20-3-72 authorized university system police to make arrests “for offenses committed upon any property under the jurisdiction of the board of regents and for offenses committed upon any public or private property within 500 yards of any property under the jurisdiction of the board,” search warrants likewise “ ‘must be confined to the territorial limits of the campus.’ [Cit.]” Hill, supra at 281. I recognize that the university police officers who conducted the searches at issue were certified peace officers, as were the officers in Hill, and OCGA § 17-5-24 has been construed to authorize the execution of a search warrant by a certified peace officer outside his arrest jurisdiction. Bruce v. State, 183 Ga. App. 653 (359 SE2d 736) (1987). Nonetheless, a certified peace officer’s authority arises only from express statutory authorization or by virtue of public employment or service. OCGA § 35-8-2 (8) (A). Unlike university system police, other law enforcement officers authorized under Georgia law are given a number of specified duties and powers in addition to the power to arrest. See OCGA § 35-2-33 (state patrol); OCGA § 36-8-5 (county police); OCGA § 35-3-8 (GBI agents); OCGA § 35-3-9 (GBI narcotics agents). In contrast, OCGA § 20-3-72, which was enacted in 1966 (Ga. L. 1966, p. 370), and is codified in the postsecondary education chapter of Title 20, is the only statute that specifically grants any law enforcement power to university system police. Accordingly, any authority of such officers beyond that specified in OCGA § 20-3-72 must arise from the general power of the board of regents to create and regulate universities. See Ga. Const., Art. VIII, Sec. IV, Par. I; OCGA § 20-3-20 et seq. There is no other statute in Title 20, Chapter 3, Article 2 or elsewhere in our Code which grants to the board of regents any police powers beyond the territorial limits of the university system. Since university system police have no express statutory authority beyond university system *177property, and their employer, the board of regents, does not have the authority to grant such powers, I cannot construe the peace officer certification provisions to authorize university system police to exercise law enforcement powers beyond the territorial limits established by OCGA § 20-3-72.

Contrary to the majority’s assertion, the holding in Hill is consistent with the 1990 amendments to OCGA §§ 17-5-20 and 17-5-21. OCGA § 17-5-20 was rewritten to provide in paragraph (a) that “[a] search warrant may be issued only upon the application of an officer of this state or its political subdivisions charged with the duty of enforcing the criminal laws or a currently certified peace officer engaged in the course of official duty, whether said officer is employed by a law enforcement unit of: (1) [t]he state or a political subdivision of the state; or (2) [a] university, college, or school.” The 1990 revision to OCGA § 17-5-21 included the addition of a new paragraph (d) providing that when a campus police officer executes a search warrant by campus police “beyond the arrest jurisdiction of a campus policeman pursuant to Code Section 20-3-72, the execution of such search warrant shall be made jointly by the certified peace officer employed by a university . . . and a certified peace officer of a law enforcement unit of the political subdivision wherein the search will be conducted.” These revisions, although including campus police in the search and seizure laws for the first time, indicate that the General Assembly retained an express distinction between certified peace officers employed by a college or university and other certified peace officers, and did not elect to extend to campus police authority equal to that possessed by law enforcement officers of the state or its political subdivisions.

I also cannot agree that the university police officers’ lack of authority to execute the search warrant was a mere “technical irregularity.” This court has held that a search warrant obtained by an officer who is not authorized to exercise such powers is invalid and the fruits of the search must be suppressed. Holstein v. State, 183 Ga. App. 610 (359 SE2d 360) (1987). Accord Reid v. State, 129 Ga. App. 660 (2) (a) (200 SE2d 456) (1973). State v. Giangregorio, 181 Ga. App. 324 (352 SE2d 193) (1986), cited by the majority, is not applicable because it involved the validity of an arrest, and the four-judge plurality concluded the defendant’s constitutional rights were not violated because a felony arrest may be made by a private citizen. In contrast, Georgia law expressly precludes the issuance of a search warrant to a private citizen. OCGA § 17-5-20 (b).

This court has long recognized that “ ‘ “[proceedings for the issuance of search warrants are to be strictly construed, and every constitutional and statutory requirement must be fully met, including all formalities required by statute, before a valid search warrant may is*178sue. Moreover, a statute prescribing the method of issuing search warrants must be read and construed in the light of, and conform in all essential respects to, the provisions of the constitution granting immunity from unreasonable searches and seizures.” [Cit.] It should be borne in mind that here we are dealing with a valuable guaranty, a part of the Bill of Rights, the subject matter of the Fourth Amendment to our national Constitution, and embodied in the Georgia Constitution. We, who have this right, must carefully guard it against infringement.’ ” Pruitt v. State, 123 Ga. App. 659, 664 (182 SE2d 142) (1971). I find the decision in Hill to be consistent with these principles, and accordingly would affirm the decision of the trial court.

Decided December 5, 1990 Rehearing denied December 20, 1990 Harry N. Gordon, District Attorney, Gerald W. Brown, Assistant District Attorney, for appellant. Cook, Noell, Tolley & Aldridge, Edward D. Tolley, for appellee.

I am authorized to state that Judge Pope joins in this dissent.