Bradford v. State
| Decision Date | 16 September 1987 |
| Docket Number | No. 74392,74392 |
| Citation | 184 Ga.App. 459,361 S.E.2d 838 |
| Parties | BRADFORD v. The STATE. |
| Court | Georgia Court of Appeals |
Christopher A. Townley, Rossville, for appellant.
David L. Lomenick, Jr., Dist. Atty., for appellee.
Michael Bradford brings this appeal from his conviction and first offender sentence of possession of more than an ounce of marijuana.
1. Appellant urges as error the admission into evidence of contraband which was located by several private citizens who were known as "reserve deputies" and asked by the sheriff to aid the county deputies in the search of a large area which was the curtilage of appellant's residence. The search was carried out pursuant to a search warrant. The "reserve deputies" worked under the supervision and observation of the county deputies. They were instructed not to handle any contraband they discovered but rather only to alert the officers when it was located. Given the limitations placed upon the "reserve deputies" and the evidence presented that they complied with them, we find no violation of the provisions of OCGA § 17-5-24, which states that the search warrant "shall be directed for execution to all peace officers of this state."
2. The trial court was not required to grant appellant's motion to reveal the identity of the informant. Disclosure is not required where an informant acts as a mere tipster. Roden v. State, 181 Ga.App. 287, 290, 351 S.E.2d 713 (1986). As the evidence showed that the informant merely supplied information upon which the warrant was obtained and was not involved in nor witnessed the crime, the court correctly held the informant's identity was privileged. Dyer v. State, 162 Ga.App. 773, 293 S.E.2d 42 (1982).
3. The information provided to the magistrate to support the issuance of a search warrant was sufficient under the "totality of the circumstances" analysis as set forth in State v. Stephens, 252 Ga. 181, 182, 311 S.E.2d 823 (1984). " " Cichetti v. State, 181 Ga.App. 272, 273, 351 S.E.2d 707 (1986).
The affidavit in the instant case stated that the informant saw marijuana at the defendant's residence in the past 48 hours, and that The affidavit was supplemented by the sworn testimony of a deputy sheriff who provided the details of the informant's observation: there were lights in a room where appellant was growing marijuana; marijuana was buried in a wooded area near appellant's house, and appellant had sold marijuana. Considering the affidavit and the sworn statement together, while they are not a model of perfection for forming the basis to support the issuance of a warrant, do meet the test set forth in Cichetti v. State, supra at 273, 351 S.E.2d 707, and the issuing magistrate could have found "a substantial basis for concluding that there was a 'fair probability that contraband or evidence of a crime [would] be found in a particular place.' " Using the common-sense approach under the totality of circumstances rule, it is acknowledged that this is a type of subjective finding by the court on a case by case basis. In making a judgment call here, seemingly we must "quibble as little as possible on words, and go directly to the substance." Humphrey v. Copeland, 54 Ga. 543 (1875). There is enough substance here; therefore, the judgment should be affirmed.
Judgment affirmed.
In State v. Stephens, 252 Ga. 181, 311 S.E.2d 823 (1984), our Supreme Court followed the "totality of the circumstances" analysis enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), for resolving the issue of probable cause to issue a search warrant. That is, " " (Punctuation omitted.) State v. Stephens, 252 Ga. at 182, 311 S.E.2d 823, supra, quoting Illinois v. Gates, 462 U.S. at 238-239, 103 S.Ct. at 2332-33, supra. See also Lewis v. State, 255 Ga. 101(2), 335 S.E.2d 560 (1985). As aptly noted by our Supreme Court, the rule of Illinois v. Gates is, at least, a subjective one, and "[o]ne judge's 'probable cause' can be another judge's 'inarticulable suspicion'...." State v. Stephens, 252 Ga. at 184, 311 S.E.2d 823, supra. Bearing this in mind, I am nevertheless unable to concur in the perfunctory analysis employed by the majority which does nothing more than adopt the magistrate's determination that probable cause existed for issuance of the search warrant in this case.
The subject search warrant accused defendant and his wife of "willingly and knowingly [possessing at their residence] a green leafy substance believed to be marijuana [weighing] more than one ounce." The affidavit described the location and physical characteristics of defendant's residence and stated that a confidential informant Additionally, the affiant testified before the magistrate that "the information that [she] had received [indicated] that [defendant and his wife] were growing marijuana, and ... also had marijuana buried in a wooded area by [their] house, and that they had sold marijuana ... [and the informant] had seen the lights and everything where [defendant and his wife] had been growing marijuana."
"[U]nder the analysis, we must consider the affidavit [and oral testimony] in [their] entirety, giving significance to each relevant piece of information and balancing the relative weights of all the various indicia of reliability and unreliability attending the tip. State v. Hockman, 171 Ga.App. 504, 505-506, 320 S.E.2d 241 (1984). Nonetheless, attesting officers and magistrates must make every effort to see that supporting affidavits and sworn testimony reflect the maximum indication of reliability whenever and wherever that shall be feasible. State v. Stephens, 252 Ga. at 184, 311 S.E.2d 823, supra.
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...recognized that civilians, acting under the supervision of police, can properly execute a search warrant. Bradford v. State, 184 Ga.App. 459, 460(1), 361 S.E.2d 838 (1987) (no violation of OCGA § 17–5–24 when contraband located by private citizens known as “reserve deputies” where they were......
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