O.C.G.A. § 16-11-67 (2019)

Annotations

Law reviews. - For annual survey on criminal law, see 65 Mercer L. Rev. 79

(2013). For article on domestic relations, see 66 Mercer L. Rev. 65 (2014).

JUDICIAL DECISIONS O.C.G.A. § 16-11-67 applies to violations of the administrative requirements of O.C.G.A. § 16-11-64; to protect against tampering, alteration, or destruction of evidence, and against allegations thereof, ‘‘obtained’’ necessarily includes both the gathering and safeguarding of evidence. Williams v. State, 265 Ga. 471, 457 S.E.2d 665 (1995). Noncompliance with the administrative requirements of O.C.G.A. § 16-11-64 did not call for suppression of evidence developed from information gathered with a pen register where there was no showing of any prejudice to defendant’s privacy interest resulting from such noncompliance. Williams v. State, 265 Ga. 471, 457 S.E.2d 665 (1995). Construction with O.C.G.A. § 16-11-64. - O.C.G.A. § 16-11-64(c) merely provides authority to Georgia superior court judges to issue wiretap warrants upon proper application by the prosecuting attorney, and the statute contains

no prohibition against evidence gathered as part of a federal investigation in compliance with the federal warrant process. Furthermore, the fact that the warrant was not initially issued by a Georgia superior court judge does not violate the requirements for obtaining a warrant codified in O.C.G.A. § 16-11-64(c), and that fact does not require suppression of evidence gathered pursuant to the warrant. State v. Harrell, 323 Ga. App. 56, 744 S.E.2d 867 (2013). Violation of 18 U.S.C. § 2518 not included in allowable grounds of motion to suppress under former Code 1933, § 26-3007 (see now O.C.G.A. § 16-11-67). Ansley v. State, 124 Ga. App. 670, 185 S.E.2d 562 (1971), cert. denied, 408 U.S. 929, 92 S. Ct. 2503, 33 L. Ed. 2d 341 (1972). Jurisdiction of warrant issuing court. - Supreme Court of Georgia concludes that Georgia superior courts do not currently possess the authority to issue

wiretap warrants for interceptions conducted outside the boundaries of their respective judicial circuits. Luangkhot v. State, 292 Ga. 423, 736 S.E.2d 397 (2013). Appellate court erred in affirming a trial court’s denial of the appellants’ motion to suppress because the warrants were invalid since the Gwinnett County Superior Court lacked the authority to issue the wiretap warrants for the interceptions in the case which took place exclusively in Fulton County. Luangkhot v. State, 292 Ga. 423, 736 S.E.2d 397 (2013). Issuance of a warrant by superior court judge. - Trial court erred by granting the defendant’s motion to suppress because the fact that the warrant was not initially issued by a Georgia superior court judge did not violate the requirements for obtaining a warrant codified in O.C.G.A. § 16-11-64(c) and that fact did not require suppression of evidence gathered pursuant to the warrant. State v. Harrell, 323 Ga. App. 56, 744 S.E.2d 867 (2013). Section does not include telephone company records. - O.C.G.A. § 16-11-67, while applicable to the content of telephone conversations, does not extend to include telephone company records. Van Nice v. State, 180 Ga. App. 112, 348 S.E.2d 515 (1986), cert. denied, 480 U.S. 931, 107 S. Ct. 1568, 94 L. Ed. 2d 760 (1987). Evidence obtained surreptitiously by tape recording spouse’s private telephone conversation is evidence obtained in violation of O.C.G.A. § 16-11-67 and is inadmissible for impeachment purposes. Ransom v. Ransom, 253 Ga. 656, 324 S.E.2d 437 (1985).

Exception to ‘‘fruit of poisonous tree’’ doctrine. - In a prosecution of defendant wife for solicitation of murder, where there was no state participation in an illegal tapping of initial phone conversation by her husband, the ‘‘fruit of the poisonous tree’’ doctrine did not require suppression of an undercover agent’s subsequent surreptitiously taped conversations with defendant. Jordan v. State, 211 Ga. App. 86, 438 S.E.2d 371 (1993). Evidence properly excluded. - Because none of the types of communication encompassed by O.C.G.A. § 16-11-66(a) were at issue, because the parties stipulated that the video recordings the victim made between the victim and defendant without defendant’s consent were in a private place, and because the participant’s exception in § 16-11-66(a) applied to O.C.G.A. § 16-11-62 in its entirety, pursuant to O.C.G.A. § 16-11-67, the trial court properly excluded the recordings. State v. Madison, 311 Ga. App. 31, 714 S.E.2d 714 (2011). Cited in Bilbo v. State, 142 Ga. App. 716, 236 S.E.2d 847 (1977); Carter v. State, 239 Ga. 509, 238 S.E.2d 57 (1977); State v. Birge, 240 Ga. 501, 241 S.E.2d 213 (1978); State v. Bilbo, 240 Ga. 601, 242 S.E.2d 21 (1978); Dunham v. Belinky, 248 Ga. 479, 284 S.E.2d 397 (1981); Quillan v. State, 160 Ga. App. 167, 286 S.E.2d 503 (1981); Kesler v. State, 249 Ga. 462, 291 S.E.2d 497 (1982); Evans v. State, 252 Ga. 312, 314 S.E.2d 421 (1984); Reeves v. State, 192 Ga. App. 12, 383 S.E.2d 613 (1989); Quintrell v. State, 231 Ga. App. 268, 499 S.E.2d 117 (1998); Bishop v. State, 241 Ga. App. 517, 526 S.E.2d 917 (1999); North v. State, 250 Ga. App. 622, 552 S.E.2d 554 (2001); Moss v. State, 298 Ga. 613, 783 S.E.2d 652 (2016).

RESEARCH REFERENCES ALR. - Admissibility of telephone conversations in evidence, 71 A.L.R. 5; 105 A.L.R. 326. Admissibility of evidence obtained by government or other public officer by intercepting letter or telegraph or telephone message, 134 A.L.R. 614. What constitutes an ‘‘interception’’ of a telephone or similar communication forbidden by the Federal Communications

Act (47 U.S.C. § 605) or similar state statutes, 9 A.L.R.3d 423. Censorship and evidentiary use of unconvicted prisoners’ mail, 52 A.L.R.3d 548. Admissibility, in criminal prosecution, of evidence obtained by electronic surveillance of prisoner, 57 A.L.R.3d 172. Permissible surveillance, under state communications interception statute, by

person other than state or local law enforcement officer or one acting in concert with officer, 24 A.L.R.4th 1208.

State constitutional requirements as to exclusion of evidence unlawfully seized - post-Leon cases, 19 A.L.R.5th 470.