Criminal Law - Laura D. Hogue and Franklin J. Hogue

• Publication year: 2007

Criminal Lawby Franklin J. Hogue^* and Laura D. Hogue^**

I. Introduction

As in previous years, we cannot comment on every development in criminal law in Georgia that occurred this past year through appellate opinions and statutory changes. We cannot even footnote all of them. Instead, we have chosen cases that are the most important or the most interesting or those that may have the widest application to the future course of criminal practice and procedure. We hope this Article is useful to our colleagues who practice criminal law.

II. Pretrial Issues

A. Demurrers: Constitutionality of the Charging Documents

In Briggs v. State,¹ Briggs was caught trying to sell fifty-two individually wrapped compact discs containing reproductions of recorded material. He raised two challenges to the statute under which he was charged, Official Code of Georgia Annotated ("O.C.G.A.") section 16-8- 60(b).² That statute prohibits the possession and distribution of sounds or images without a label bearing the name and address of the transferor of the sounds or images.³ Briggs asserted that (1) the statute was unconstitutionally vague or overbroad and (2) it was preempted by federal copyright law.⁴ He lost on both arguments.⁵

With respect to vagueness, Briggs argued that the statute failed to make it clear to whom the phrase "'transferor of the sounds or visual images'" referred.⁶ Though the opinion does not say it, we can infer that Briggs's vagueness argument focused on the meaning of transferor—specifically, whether the original conveyor of the sounds or images was the transferor, such as the artist who recorded the songs, or whether Briggs himself was the transferor because he copied those songs to another disc. Vagueness of that sort would render a criminal statute unconstitutional because it would leave uncertain what act was prohibited and who was prohibited from doing it, which would violate the guarantee of due process.⁷ The Georgia Supreme Court, applying the "reasonable definiteness" standard and reading the statute in its context, concluded that the article containing the sounds or images—the compact disc—must contain the name and address of the original conveyor of the sounds or images to the disc.⁸ But what if Briggs had put his own name and address on the discs in his possession and argued that he was the one who conveyed the sounds or images to the disc in question, even while conceding that he copied the sounds or images from another disc that bore the name and address of the original conveyor of those sounds or images to that disc? It is safe to conclude that he would still have lost on his vagueness argument.

Briggs's argument that the statute was overbroad focused on the statute's chilling effect on protected speech.⁹ Briggs's argument, as we can infer from the opinion, was that the statute prohibited one from remaining anonymous by omitting one's name and address from the label of a disc.¹⁰ The supreme court held that the statute did not regulate pure speech, but instead it regulated speech plus commercial conduct.¹¹ Thus, the statute was narrowly tailored to achieve the legitimate state interest in protecting the entertainment industry from piracy and bootlegging.¹²

Briggs's federal preemption argument—that the state law was equivalent to the federal copyright law, and thus, preempted by the copyright law—also failed.¹³ The court applied "Nimmer's 'extra-element' test": If the state law requires any element beyond those elements required under federal copyright law—17 U.S.C. Sec. 106¹⁴ — then the federal law does not preempt state law.¹⁵ The supreme court compared the state law and the federal law and concluded that the federal law did not preempt state law because the Georgia statute contains the element that the article being sold contain a label that includes the name and address of the transferor of the sounds or images, an element that federal copyright law does not require.¹⁶

The decision drew a dissent from Justice Melton, in which Chief Justice Sears joined.¹⁷ Both justices concluded that the statute was indeed overbroad because it "prohibits a substantial amount of constitu-tionally-protected speech, including anonymous political speech."¹⁸ Justices Hunstein¹⁹ and Carley²⁰ wrote two separate special concurring opinions because they both thought that the majority failed to acknowledge the overbreadth of the statute; however, they each thought the majority appropriately narrowed the statute by limiting "its application to media that has been stolen or 'pirated.'"²¹ Thus, it remains a crime in Georgia to copy music, for example, from its original labeled disc to an unlabeled disc, then attempt to offer it for sale, sell it, or otherwise distribute it.²²

B. Search and Seizure

1. Police-Citizen Encounters. Each year we review search-and-seizure law by picking a few of the many cases in the reporting period that highlight search-and-seizure issues and the state of the law in this area. This year is no exception. We start with a "tier-one" case.

"According to Terry v. Ohio,"²³ Judge Blackburn wrote for the majority in Black v. State,²⁴ "police-citizen encounters are generally categorized into three tiers: consensual encounters; brief investigatory stops, which require reasonable suspicion; and arrests that must be supported by probable cause."²⁵ In this case, a drug agent received an anonymous tip, as well as information from an informant, that drugs could be found at Eddie and Pamela Black's house. After watching the house for a few hours, the agent saw a truck leave with three males in it. The agent followed the truck and called for backup. The truck pulled into a gas station, as did a couple of the backup patrol cars. Rodney Black, Eddie and Pamela's grown son, got out of the truck and walked into the gas station's store. Less than a minute later, Rodney walked out the opposite door of the store and headed for the nearby woods.²⁶

The agent then requested that one of the patrol officers ask Rodney what he was doing. The officer repeatedly attempted to do so, but Rodney told the officer that the officer had no right to speak to him and refused to answer the officer's questions. Thinking Rodney was about to flee, the officer grabbed Rodney's arm, and Rodney became belligerent. The officer arrested him for obstruction. In the ensuing search incident to arrest, the officer found methamphetamine in Rodney's pocket.²⁷

Rodney then talked about having drug paraphernalia back at the house, which led the officers to search the house. At the house, Rodney's parents talked to the officers, which led to a "consensual" search of the whole house, the discovery of more methamphetamine, more arrests, the convictions of Rodney's parents, and this appeal.²⁸ The court of appeals agreed with Eddie and Pamela that the search of their home, because it was based on Rodney's illegal arrest and the search of his pockets, was tainted by "several illegalities, beginning with the unlawful detention of their son and culminating in the agents' unlawful entry into their home."²⁹ Because Rodney's arrest and search was illegal, everything that flowed from it was illegal. The interesting issue here is how close a first-tier encounter is to a second-tier encounter and how the former led to the result in this case, but the latter would not have. Consider:

In a first-tier encounter, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.³⁰

The citizen may respond to such an approach by an officer at this level by ignoring the officer and walking away.³¹ This would not constitute obstruction of the officer, and any arrest and search subsequent to this cold reception to the officer would be illegal.³²

But note how close a second-tier encounter is to a first-tier:

During a second-tier encounter, the police officer conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity. To stop a citizen, the officer must possess more than a subjective, unparticulari-zed suspicion or hunch. The officer's action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion, and the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing.³³

The question for the citizen, and ultimately for the courts, perhaps, is this: Doesn't the mere approach of a law enforcement officer to a citizen, the officer's request for identification, and whatever questions the officer may ask—"What are you doing here?", "Where are you going?", "Where did you just come from?", and many other similar ones—by its nature create the impression in the citizen's mind that he or she may not leave and that he or she must produce identification and explain his or her comings and goings? If the first tier is determined by the citizen's belief that he or she is free to leave and if the second tier is determined by the officer's possession of articulable suspicions about the citizen—suspicions of which the citizen may not be aware—then a citizen with an honest belief that he or she is free to leave will be arrested for obstruction and be searched incident to that arrest if he or she unwittingly begins to walk away, not knowing that the officer is able to articulate some suspicion that the citizen is up to no good.

This is what makes Black an interesting case. The officer, according to Judge Blackburn, had no articulable suspicion even though the officer saw Rodney leave a house under...