Campbell v. State

• Decision Date: 01 July 1976
• Docket Number: No. 52309,No. 1,52309,1
• Citation: 139 Ga.App. 389,228 S.E.2d 309
• Court: Georgia Court of Appeals
• Parties: J. H. CAMPBELL v. The STATE

Page 309

228 S.E.2d 309

139 Ga.App. 389

J. H. CAMPBELL v. The STATE.

No. 52309.

Court of Appeals of Georgia, Division No. 1.

July 1, 1976.

Rehearing Denied July 20, 1976.

Glenn Zell, Atlanta, James A. McPherson, New Orleans, La., Skidmore, Barrett & Jenkins, Timothy N. Skidmore, Kenneth T. Humphries, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Gordon H. Miller, Donald J. Stein, Asst. Dist. Attys., Atlanta, for appellee.

STOLZ, Judge.

This is an appeal from defendant Campbell's conviction of violating the Georgia Controlled Substances Act. The essential question before us is whether under a warrant directing the search of 'Tim (w/m)', a certain apartment located in Fulton County, 'and any other person on said premises who reasonably might be involved in the commission of the aforesaid (drug) violations of the laws of Georgia,' police were authorized to search the defendant who was present in the apartment at the time of the search.

The facts pertinent to this appeal are as follows. Prior to execution of the warrant, police officers had placed the premises under surveillance for several hours, during which time police observed several persons arrive at and enter the apartment. Police then knocked at the back (kitchen) door and identified themselves then someone peered through the window curtain. However, rather than open the door, this person, later identified as 'Tim,' headed toward the living room. Thereupon police made a forced entry into the kitchen, apprehended 'Tim,' any proceeded immediately to the living room to round up the other people in the apartment. Upon entering the living room, police observed defendant Campbell trying to hide behind the television. Campbell contends that, not knowing who the intruders were, he had simply tried to hide from them. The officers searched the appellant, finding a small plastic bottle containing which powder in his pocket and two loaded pistols under his belt.

1. The affidavit supporting the warrant stated that a confidential informant had given the officer-affiant information that, while present in the apartment, 'he observed persons known to him as users of cocaine frequenting said location . . . (and) that cocaine is now being stored at (the apartment).'

Appellant contends that the warrant was issued without probable cause in that the supporting affidavit contained no description of these 'known' cocaine users, did not disclose how the users became known to the informant, and did not allege that the affiant was informed of any impending drug transaction.

The affidavit states that the informant had been present in the apartment on two specific dates and had personally observed 'Tim' using, selling, and storing cocaine. Further, the informant had observed other cocaine users frequenting the premises and had stated that 'Tim' was currently storing cocaine there. That the 'known' cocaine users, or how they were known, were not particularly described, has no bearing on this case in light of our holding, in Division 3 below, that the 'other persons' clause in the warrant did not broaden the officers' authority to search anyone other than 'Tim.' As to the specificity of the informer's information, we believe that the criminal activity was described so that a magistrate might know that it was more than 'a casual rumor circulating in the underworld or an accusation based merely on the individual's general reputation.' Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 589, 21 L.Ed.2d 637; cf. Jackson v. State, 129 Ga.App. 901, 904, 201 S.E.2d 816. As to the appellant's contention that the affiant was not informed of an impending drug transaction, the informant's statement that cocaine was currently being stored at the apartment was sufficient to support the requirement that information in an affidavit be current. See Cochran v. State, 136 Ga.App. 94, 220 S.E.2d 83.

2. The appellant also argues that the inclusion of an 'other persons' clause renders this a general warrant. However, this warrant specifically identifies the person and place to be searched, and, unlike the situation in Wilson v. State, 136 Ga.App. 70, 221 S.E.2d 62 and State v. Cochran, 135 Ga.App. 47, 217 S.E.2d 181, it was not directed at searching any person who might happen to enter a public place during the search. ' (A) warrant which indentifies the premises and its owners or occupants is not void as a general warrant because it authorizes the search of other persons found there who may reasonably be involved in the commission of the crime for which the warrant is issued.' Willis v. State, 122 Ga.App. 455, 457, 177 S.E.2d 487, 488; accord, Jackson v. State, 129 Ga.App. 901(1)(d), 201 S.E.2d 816, supra.

3. With particular regard to the 'other persons' clause in this warrant, we note that this language gives police no authority to search persons other than 'Tim' unless such search falls within the ambit of Code Ann. § 27-309. Language identical to that contained in this warrant was considered in our opinion, issued this month, in Smith v. State, 138 Ga.App. 129,227 S.E.2d 911, wherein we stated that Code Ann. §...