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Judgment affirmed. Senior Appellate Judge Harold R. Banke concurs. McMurray, P. J., concurs specially.
MCMURRAY, Presiding Judge, concurring specially.
Hunting over bait. Towns Superior Court. Before Judge Langford, Senior Judge.
Quintrell was arrested and charged with three hunting misdemeanors: hunting over bait, "unlawful enticement of game" (OCGA 27-3-9); hunting bears out of season (OCGA 27-3-26); and unlawful use of bear bait (OCGA 27-3-27). Only the latter two offenses are misdemeanors of a high and aggravated nature. A jury convicted Quintrell of hunting over bait but acquitted him of the other charges. He enumerates error in the denial of his motion to suppress as evidence a videotape showing Quintrell in possession of a hunting bow and arrows on a hunting stand located nearby, which was above food generally considered to be bear bait. He also enumerates as an abuse of discretion the suspension of his hunting and fishing licenses as a condition of probation.
Farist, a law enforcement official in the Department of Natural Resources (DNR), together with other officers, investigated a report of illegal hunting taking place over bait on certain private property in Towns County. In an area up an old road from the property owner's trout hatchery, Farist found at small clearings and other nearby places man-made tree stands, three of wood and one of metal. At one stand he found grease, scraps of what were apparently beef bones, and a salt lick, all ten to fifteen yards from the stand. No food was near the second stand, but a clearing just past it contained a lot of grease and some fish bones. At the third were beef bones, meat scraps, grease and a salt lick. Near the fourth stand were dead trout, apples, candy mints, and doughnuts. Officer Farist saw what he believed to be bear tracks and trails. He smelled the odor of bear. An arrow feather lay beneath a stand, indicating to Farist that the stands were being used for hunting, not photography.
Farist returned the following day with DNR Ranger Bill Jones and videotaped the stands and several persons in or about the stands, including Quintrell. Quintrell, another person and the property owner were arrested. It is uncontested that the stands were located on private property and that the officers did not have the owner's permission to go upon the property but Quintrell did.
1. The first issue is whether Quintrell was entitled to suppression of the videotapes as evidence because they were made in violation of OCGA 16-11-62 (2) and/or (3) 1 and thus should have been excluded pursuant to the express sanction of OCGA 16-11-67. 2 His argument centers on his categorization of the place displayed on the film as a "private place" within the meaning ascribed to that term by OCGA 16-11-60 (3), i.e.: " 'Private place' means a place where one is entitled reasonably to expect to be safe from casual or hostile intrusion or surveillance." Quintrell could not reasonably have expected the evidence of bear hunting, including his presence on the second day, to be safe from surveillance by the conservation rangers.
One reason is that the rangers are given, in addition to the powers vested in any other law enforcement officers within the Department of Natural Resources, the power "[t]o go upon property outside of buildings, posted or otherwise, in the performance of their duties." 3 While it is true that "[s]tatutes of this state cannot diminish rights guaranteed by the United States or Georgia Constitutions," 4 the federal constitution does not proscribe entry on the type of property entered here without warrant by a law enforcement officer in pursuit of official duties. As held in Manley v. State of Ga., 5 entry on posted private property did not constitute trespass onto a zone of privacy protected by the Fourth Amendment.
For that principle we repeat what was quoted in Manley: " '[I]n Hester v. United States, 265 U. S. 57, 59 (44 SC 445, 68 LE 898), the United States Supreme Court held that even if the law enforcement agents had trespassed onto privately owned land an illegal search and seizure did not occur, because the special protection accorded by the Fourth Amendment to the people in their "persons, houses, papers, and effects" is not extended to the open fields.' " 6 True, the area at issue here was not open to casual view of a passerby on a public way but rather was secluded in the woods. But as the United States Supreme Court observed in Oliver v. United States 7 "An open field need be neither 'open' nor a 'field' as those terms are used in common speech. For example . . . a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment." See Gravley v. State, 181 Ga. App. 400, 402 (352 SE2d 589) (1986) (physical precedent only); Perry v. State, 204 Ga. App. 643, 645 (2) (419 SE2d 922) (1992).
In discerning the scope of the statutory meaning of "private place," we ascribe the same scope as has been given to the Fourth Amendment protections. We give this interpretation to the statutory term because, were it otherwise, an officer could enter the premises, search, make notes, seize contraband, and testify as to all of this at trial but would not be permitted to memorialize the evidence in place by way of a visual or auditory evidence-recording device as listed in OCGA 16-11-60 (1). The law seeks the highest evidence from the purest sources, not the opposite. 8 Where a scene or events can be captured faithfully as is, the factfinder will have a more objective and accurate rendition than generally can be achieved through recollection by a witness. Nothing in the statute indicates the General Assembly intended otherwise.
The crime for which Quintrell was convicted is a misdemeanor. OCGA 27-3-9; 16-1-10. A warrant to use the videotape camera to depict the evidence of criminal activity, which instrument or apparatus clearly is a "device" within the meaning of OCGA 16-11-60, would not be obtainable because such a warrant can be issued only for specified serious felonies, not for misdemeanors. 9 But a warrant for use of such a picture-creating device is not needed by a law enforcement officer who, in performing the officer's duties as described in OCGA 16-11-64 (a), does not invade a "private place" and thereby violate OCGA 16-11-62. Quintrell does not contend that the tree stands and surrounding ground with telltale signs were within the curtilage of any home.
Quintrell does not pursue any independent analysis on state constitutional issues, so we do not address them.
2. As a special condition of probation, the court suspended Quintrell's hunting and fishing "privileges" 10 during the 12-month probation period.
The court is authorized by OCGA 17-10-1 (a) (1) to "suspend or probate all or any part of the entire sentence under such rules and regulations as the judge deems proper. . . .' See also OCGA 17-10-3 (b) (misdemeanor punishment may be subject to probation). OCGA 42-8-35 provides that the court "shall determine the terms and conditions of probation" and lists a number of non-exclusive conditions which the court "may" impose. "The probation and suspension statutes in Georgia vest broad discretion in trial judges. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved. Probated and suspended sentences, upon reasonable conditions, have traditionally been used by trial judges in Georgia as effective tools of rehabilitation and serve a useful purpose in appropriate cases as an alternative to confinement." 11 Quintrell's challenged probation condition does not exceed the length of the sentence 12 and clearly serves the rehabilitative purpose of his sentence by making plain that abuse of the privileges results in their withdrawal, at least this time. 13
Quintrell argues that the licenses suspension was off limits for his misdemeanor sentence because the legislature provided for such only with respect to the game and fish violations that were designated as high and aggravated misdemeanors, such as hunting bears as prohibited by OCGA 27-3-26. Subsection (c) of that section mandates suspension of the hunting and fishing privileges of the offender for three years. This does not eliminate the discretionary imposition of suspension for the misdemeanor Quintrell committed. There was no abuse of discretion.
I fully concur in Division 2 and in the judgment of affirmance. I also concur in the Fourth Amendment analysis of Division 1, holding that the woods at issue were not a "private place." I write separately to emphasize there is no basis in state law for suppressing the videotape of defendant. Except for certain designated felonies, "nothing in this part [Chapter 11, Article 3, Part 1, OCGA 16-11-60 through 16-11-69,] shall apply to a duly constituted law enforcement officer in the performance of his official duties in ferreting out offenders or suspected offenders of the law or in secretly watching a person suspected of violating the laws of the United States or of this [S]tate, or any subdivision thereof, for the purpose of apprehending such suspected violator." OCGA 16-11-64 (a). As the majority correctly notes, misdemeanor hunting over bait is not one of those felonies designated by OCGA 16-11-64 (b) for an investigation warrant.
William L. Reilly, for appellant.
1  "It shall be unlawful for: . . . (2) Any person, through the use of any instrument or apparatus, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view . . . (3) Any person to go on or about the premises of another or any private place for the purpose of invading the privacy of others by eavesdropping upon their conversations or secretly observing their activities."
2  "No evidence obtained in a manner which violates any of the provisions of this part shall be admissible in any court of this state except to prove violations of this part."
3  OCGA 27-1-20 (a) (6); 27-1-2 (22).
5  217 Ga. App. 556, 557 (2) (458 SE2d 179) (1995).
6  Id.
7  466 U. S. 170, 180, fn. 11 (104 SC 1735, 80 LE2d 214) (1984).
8  OCGA 24-1-2.
9  OCGA 16-11-64 (b) (1).
10  OCGA 27-1-3; 27-2-23.
11  State v. Collett, 232 Ga. 668, 670 (208 SE2d 472) (1974).
12  See Ballenger v. State, 210 Ga. App. 627, 628 (3) (436 SE2d 793) (1993).
13  See Allen v. State, 258 Ga. 424, 425 (3) (369 SE2d 909) (1988); Mangiapane v. State, 178 Ga. App. 836 (1) (344 SE2d 756) (1986).
Thursday May 21 03:51 EDT

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