Burkill v. State, 50790

• Decision Date: 02 September 1975
• Docket Number: No. 2,No. 50790,50790,2
• Citation: 218 S.E.2d 453,135 Ga.App. 595
• Parties: Mike BURKILL v. The STATE
• Court: Georgia Court of Appeals

Page 453

218 S.E.2d 453

135 Ga.App. 595

Mike BURKILL v. The STATE.

No. 50790.

Court of Appeals of Georgia, Division No. 2.

Sept. 2, 1975.

Bennett & Dantzler, Deryl D. Dantzler, Macon, for appellant.

Clarence H. Clay, Jr., Sol., John R. Sikes, Asst. Sol, James M. Wootan, Macon, for appellee.

PANNELL, Presiding Judge.

Appellant was convicted of possession of marijuana and appeals the judgment. The sole issue is whether or not defendant's Motion to Suppress should have been overruled.

The following facts were presented to the magistrate by typed affidavit: 'On July 23, 1974 at 8:30 P.M. Detective Pace recieved (sic) information from a truthful informant that on the primises (sic) of 3238 Siminole Ave. there is at this time a planter in the rear of the house containg (sic) Marijuana Plants (15). The informer also stated that he has seen green leafey (sic) material in side (sic) the above residence under the controll (sic) of Mike Burkehill (sic). This informer was on these primises (sic) today July 23, 1974 and took one of the plants from a planter and brought it to Detective Pace. Detective Pace has identified the plant as Marijuana. Based on the information recieved (sic) I believe there is Marijuana being grown and kept on the above mentioned premises, also within the house behind 3238 Siminole Ave.' No other facts were related to the magistrate.

1. Appellant contends that there were insufficient facts presented to the magistrate to allow him to determine the credibility of the informant. It is not necessary that an averment of previous reliability be made before information provided by an informant can be acted upon. The question is whether the informant's present information is truthful and reliable. Meneghan v. State, 132 Ga.App. 380, 208 S.E.2d 150; United States v. Harris, 403 U.S. 573, 581, 91 S.Ct. 2075, 29 L.E.2d 723. This court in Meneghan considered that the informer had in his hands some of the contraband from the 'drop' made by appellants as a factor in determining the informant's reliability. Other factors considered were the detailed description of the vehicle and a statement that the informer was a personal friend of the officer. In the present case, the informer brought to the officer a marijuana plant, allegedly taken from the premises to be searched. He also provided a description of the premises and an exact number of marijuana plants located in a planter in the rear of the house.

In determining probable cause for the issuance of a warrant, we deal with practical considerations of everyday life on which reasonable men, not legal technicians, act. United States v. Harris, sup...