GA: Trial judge’s order of defense counsel to be drug tested violated 4A; ADA’s SW for blood test next day was valid, however

Defense counsel appeared to the trial judge to be under the influence of something, and the judge ordered a recess. Defense counsel came back to finish the trial after a few hours, and the condition still existed. The court ordered a drug test of defense counsel, and the court of appeals finds it violated the Fourth Amendment, even under the contempt power of the court, at least for prosecution purposes. Separately, however, an ADA saw the defendant in the elevator before court and came to the same conclusion. The DA’s office heard about what happened in court, and they reviewed the video of defense counsel in court, and they obtained a search warrant for defendant’s blood. Excluding the court ordered urine sample from the mix, there was still probable cause for the search warrant. Defendant’s conviction for possession of meth in his blood stream is affirmed. Csehy v. State, 2018 Ga. App. LEXIS 446 (June 29, 2018):

As with other branches of government, the inherent powers of the judiciary to fulfill its duties are limited by the Constitution. This Court has long recognized that

“[t]he discretion of the trial judge in regulating conduct of counsel, parties, and the witnesses, and in prescribing the manner in which the business [of the court] shall be conducted, … is broad and … enable[s] [the judge] in any case to effect the purposes for which [the power] is inherently [vested in the judge]; but [the judge’s power] is not unlimited, for it must not be abused and it may not be exercised in such a way as to involve a deprivation of a right.” Loomis v. State, 78 Ga. App. 153, 163 (51 SE2d 13) (1948).

Smith v. State, 150 Ga. App. 498, 499 (258 SE2d 167) (1979). Thus, a court’s inherent “‘power to control the proceeding of the court is subject to the proviso that in so doing a judge does not take away or abridge any right of a party under the law.'” State v. Perry, 261 Ga. App. 886, 887 (583 SE2d 909) (2003), quoting State v. Colquitt, 147 Ga. App. 627, 628 (249 SE2d 680) (1978). Accordingly, even in the course of controlling judicial proceedings or officers of the court, a trial judge may not act so as to interfere with the First Amendment rights of trial participants (parties, counsel, and witnesses) or the media. WXIA -TV v. State, ___ Ga. ___ (811 SE2d 378) (2018). Nor may a court exercise its control of the courtroom to infringe upon the defendant’s Sixth Amendment rights to a public trial, Jackson v. State, 339 Ga. App. 313 (793 SE2d 201) (2016), or to self-representation, Burney v. State, 244 Ga. 33, 36-37 (2) (257 SE2d 543) (1979). It follows, therefore, that in exercising its inherent power to control the proceedings and parties before it, a court may not order a warrantless Fourth Amendment search that does not otherwise fall within one of the well-established exceptions to the warrant requirement. See Burney, 244 Ga. at 37 (2) (“the power of the trial court does not extend so far as to cause an absolute deprivation of [a] constitutional right”). In light of this fact, and given the trial court’s unchallenged finding that the search did not fall within an exception to the warrant requirement, we find that Csehy’s court-ordered urine test constituted an unlawful search under the Fourth Amendment.

. . .

Here, the affidavit demonstrated that Csehy was exhibiting a wide range and number of symptoms, all of which were consistent with the use of illegal substances. Moreover, the circumstances presented to the magistrate included the fact that the affidavit was sought by an investigating officer with significant training and experience in the area of narcotics. See Diaz v. State, 344 Ga. App. 291, 302 (810 SE2d 566) (2018) (finding probable cause supported warrant for blood of driver suspected of DUI and noting that officer making the warrant request averred that he had been in law enforcement for 15 years, had served four years on a DUI task force that “focused on impaired driving,” and had “participated in over 400 traffic stops based on suspicion of impaired driving”). Additionally, the magistrate was entitled to give substantial weight to the fact that Judge Grubbs had observed Csehy for several hours and was of the opinion that Csehy’s behavior indicated the use of illegal narcotics. See Palmer, 285 Ga. at 79 (one of the circumstances to be considered by a magistrate assessing probable cause is the “veracity, reliability, and basis of knowledge” of persons supplying information to support the warrant) (citation and punctuation omitted); Cochran v. State, 281 Ga. 4, 5 (635 SE2d 701) (2006) (same).

Applying the deferential standard of review owed a magistrate’s findings of probable cause, we find that these circumstances, taken together with the number and range of Csehy’s physical manifestations suggestive of drug use as set forth in the affidavit, would lead a reasonable person to conclude that the use of illegal narcotics by Csehy “was an equally or more probable explanation” for Csehy’s appearance and conduct than any explanation that did not involve illegal drug use. Hughes v. State, 296 Ga. 744, 750 (770 SE2d 636) (2015) (noting that “we do not consider any fact or circumstance standing alone”). Accordingly, we must conclude that the magistrate had a substantial basis for finding probable cause in this case.

Because the blood draw was supported by a valid warrant, the trial court did not err in denying Csehy’s motion to suppress the results of his blood tests. We therefore affirm the denial of Csehy’s motion for new trial.

Daily His Meth Conviction Upheld, Disbarred Lawyer Thanks Judge, DA for Intervention by Greg Land:

The Court of Appeals upheld the conviction of former prosecutor and criminal defense lawyer Rand Csehy, who was charged with possession of meth after a judge ordered him to take a urine test when he appeared unsteady and disheveled in court.

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