Georgia’s Private Papers Statute: a Reach Into the Past, a View of the Future
| Citation | Vol. 17 No. 7 Pg. 0020 |
| Pages | 0020 |
| Publication year | 2012 |
A Reach Into the Past, A View of the Future
by Hon. Benjamin W. Studdard III and Adam M. Masarek
O.C.G.A. § 17-5-21 exempts "private papers" from search and seizureeven if the materials constitute evidence of a crimebut not if the materials are instrumentalities of a crime.[1] Recently, there has been an abundance of academic discussion and case law attempting to clarify the constitutional issues surrounding searches and seizures of electronically stored materials.[2] However, commentators and the courts have said little about the potential for Georgia's statutory private papers exemption to limit state actors' ability to search and seize suspects' electronically stored materials, such as text messages, emails, digital images and videos.
O.C.G.A. § 17-5-21 inherently provides citizens more protection against searches and seizures than the Fourth Amendment does.[3] Historically, however, Georgia courts have largely ignored O.C.G.A. § 17-5-21 as a distinct avenue of defense for criminal defendants. From the statute's enactment in 1966 until recently,
the courts held that the statutory private papers exemption provided no additional protection than those already provided by recognized privileges and constitutional doctrines.[4] However, in 2010, the Supreme Court of Georgia modified its interpretation of the statutory private papers exemption, finally acknowledging in a majority opinion that O.C.G.A. § 17-5-21 provides a distinct protection against searches and seizures of private papers.[5]Where constitutional and privilege based challenges against searches and seizures have failed, a statutory private papers challenge could now succeed.
Interestingly, the Supreme Court based this new interpretation of the private papers statute on long-ago discarded U.S. Supreme Court Fifth Amendment case law.[6] Although no longer comprehensive constitutional authority, this case law was valid at the time the private papers statute was passed in 1966, and gives us our best view of the legislative intent behind protecting "private" papers at the time.[7] Since that view of constitutional law has since been considerably narrowed, the statute now enjoys its own significance, separate and apart from the Fifth Amendment.
This reach into the past to revitalize the statute prompts new questions and requires the re-examination of old ones. The Supreme Court of Georgia's revised analysis asks anew what is "private;" now both of our appellate courts have realized that they must also ask, "what is a paper, and how does one possess it?" Recently, in Hawkins v. State, the Court of Appeals of Georgia recognized that a "paper" may take many forms which couldn't have been envisioned when the statute was written.[8]
This article will explore what the Supreme Court of Georgia's reach into the past means for the future of private papers protection under Georgia's statute. What materials are now "private"? (i.e., are they an accused's "personal property"?) Are they in her "possession"? Are there other considerations? When do they qualify as "papers"?[9]
History of the Statutory Private Papers Exemption in Georgia
In 1966, the Georgia General Assembly enacted the statutory private papers exemption in Ga. Code. Ann. § 27-303 (now O.C.G.A. § 17-521). The state Legislature has not amended the statutory language regarding private papers. Since the original enactment, there have been two landmark decisions in which the Supreme Court of Georgia promulgated definitions for "private papers": Sears v. State in 1993, and Brogdon v. State in 2010.
From original enactment up until Sears v. State in 1993, the courts did not put forth a working definition for what materials constitute "private papers." Without much analysis, the reported decisions assumed that the statute was coextensive with the Fourth Amendment, incorporating Fifth Amendment protections against coerced self-incrimination. Hence, both the Constitution and the statute were considered to protect against seizure of "diaries, personal letters, and similar documents wherein the author's personal thoughts are recorded."[10] Having no independent significance, the statute received only occasional attention.
In Tuzman v. State, the Court of Appeals held that the statute cannot exempt private papers from search or seizure if the papers constitute "instrumentalities" of a crime.[11]Soon after Tuzman, the Georgia courts began a trend of holding that the statutory private papers exemption provided defendants no additional protection to those provided by the Fourth Amendment.[12] In two of these decisions, dissenting judges bemoaned the courts' obfuscation of the statutory private papers exemption with constitutional doctrines.[13]
In Sears v. State, the Supreme Court of Georgia defined "private papers" as privileged material: "the most reasonable interpretation of O.C.G.A. § 17-5-21 . . . is to restrict its reach to papers covered by privilege."[14] From 1993 until recently, the appellate courts continued to adhere to the simplistic Sears definition for private papers.[15] In Brogdon v. State, the Supreme Court of Georgia overruled the Sears definition of private papers.[16]
Brogdon: Extending Privacy Beyond Privilege
The Supreme Court of Georgia's opinion in Brogdon v. State fundamentally altered the definition of "private papers" for purposes of O.C.G.A. § 17-5-21 analysis. In Brogdon's DUI prosecution, the state obtained a search warrant for defendant's hospital records, for purposes of showing his blood alcohol content.[17] The hospital had possession of the records when police seized them.[18] Over defendant's private papers objection, the trial court considered the contents of the records, and found the defendant guilty.[19] The defendant challenged the seizure as violating the private papers exemption of O.C.G.A. § 17-5-21(a)(5).[20] The defendant did not challenge the seizure on any constitutional basis.[21]
Brogdon did not involve whether evidence should be considered "mere tangible evidence" or an "instrumentality" of a crime.[22]Rather, the decision involved whether given materials can qualify as "private papers," period.[23]
Brogdon explicitly overruled Sears.[24] The Brogdon Court reasoned that the Sears definition for private papers was not well-grounded. Brogdon criticized the Sears privilege approach for failing to ascertain the legislative intent behind the statute. Rather than looking to "the intent of the General Assembly in enacting the statute, 'keeping in view at all times the old law, the evil, and the remedy[,]'"[25] Sears was based on a case that was not decided until 13 years after the enactment of O.C.G.A. § 17-5-21.[26] This privilege-based approach was especially confusing, said Brogdon, given its reference to privileges such as the "privilege for doctor-patient communications," as "that relationship is not one recognized by the legislature as privileged."[27]
After deciding that the Sears definition for private papers could not have been the enacting Legislature's intent for O.C.G.A. § 17-5-21, the Brogdon Court decided that the state Legislature intended to codify the prevailing constitutional law of the dayspecifically, the Fifth Amendment's guarantee against compulsory self-incrimination as defined in United States v. White:
[T]he General Assembly exempted from a search warrant's coverage 'private papers' that constituted tangible evidence of the crime for which probable cause had been shown. In 1966, the use of a person's private papers to convict the person of a crime was seen as the equivalent of 'forcible and compulsory extortion of a person's own testimony' and was forbidden by the Fifth Amendment's right against compulsory self-incrimination.[28]
The Brogdon Court further explained:
The constitutional privilege against self-incrimination was 'designed to prevent the use of legal process to force the accused individual to produce and authenticate any personal documents or effects that might incriminate him' . . . It protected 'papers and effects that were the personal property of the person claiming the privilege, or at least in his possession in a purely personal capacity'.[29]
Thus, Brogdon returns us to protection of the types of documents described pre-Sears"diaries, personal letters, and similar documents wherein the author's personal thoughts are recorded"but announces for the first time a basis for its finding of legislative intent.
It is interesting to note that, in the realm of constitutional jurisprudence, White's definition of the allowable scope of searches and seizures of personal papers and effects under the Fourth Amendment has been considerably narrowed by more recent U.S. Supreme Court decisions.[30] However, the Georgia General Assembly has not amended O.C.G.A. § 17-5-21(a)(5) to reflect changes in the case law. In effect, said the Brogdon Court, the Georgia Legislature chose to crystallize the Fifth Amendment self-incrimination jurisprudence of 1966 by enacting the private papers statute. The Brogdon Court accordingly adopted the holding in United States v. White as the definition for "private papers" for purposes of deciding O.C.G.A. § 17-5-21 issues:
Thus, the 'private papers' that were subject to O.C.G.A. § 17-5-21(a)(5)'s exemption from a search warrant's coverage were those papers that belonged to the accused or were, at the least, in his possession .... Since the medical records that were the subject of the search warrant in the case at bar were neither the personal property of appellant nor were they seized from his possession, they did not constitute the 'private papers' that are exempt from coverage of a search warrant in Georgia under O.C.G.A. § 17-5-21(a)(5).[31]
Defense counsel's clever argument didn't end up doing much...
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