Doe v. State , 185 Ga. App. 347 ( 1987 )

Banke, Presiding Judge,

concurring specially.

I do not believe that a superior court would be powerless under any circumstances to prevent the execution of an unlawfully issued search warrant, although it would be the rare case indeed in which the opportunity for such judicial intervention would exist. Moreover, I believe the issuance of the search warrant under consideration in this case was totally inappropriate. What could be more outrageous than the prospect of law enforcement officers rummaging through the confines of a legitimately run hospital in an attempt to locate a blood, urine, or tissue sample left behind by a suspect who was once treated there?

Under Georgia law, the appropriate tack for the state to have taken in this case would have been to obtain a subpoena duces tecum ordering the production of the particular blood and/or urine sample in question in connection with a grand jury proceeding. See generally OCGA § 24-10-22; In re Lester, 77 Ga. 143 (e) (1886). The use of a notice to produce pursuant to OCGA § 24-10-26 would be inappropriate because that statute applies only to “books, writings, or other documents or tangible things in the possession, custody, or control of another party. . . .” See generally Phillips v. State, 146 Ga. App. 423 (5) (246 SE2d 438) (1978). (Emphasis supplied.)

Nevertheless, I agree that the present appeal should be dismissed, due to the appellant’s lack of standing to challenge the proposed search. The hospital obviously does not belong to him, nor is he staying there any longer. Consequently, there would appear to be no basis upon which he could assert a violation of his Fourth Amendment rights in connection with the proposed search.

I am authorized to state that Presiding Judge Deen, Judge Carley and Judge Pope join in this special concurrence.