Campbell v. State

• Court: Georgia Supreme Court
• Writing for the Court: ALMAND
• Citation: Campbell v. State, 226 Ga. 883, 178 S.E.2d 257 (Ga. 1970)
• Decision Date: 05 November 1970
• Docket Number: No. 25913,25913
• Parties: William B. CAMPBELL v. The STATE.

Page 257

178 S.E.2d 257

226 Ga. 883

William B. CAMPBELL v. The STATE.

No. 25913.

Supreme Court of Georgia.

Nov. 5, 1970.

Rehearing Denied Nov. 18, 1970.

Syllabus by the Court

1. (a) The facts contained in the affidavit, if taken as true, met the requirements

of Code Ann. § 27-303 (Ga.L.1966, pp. 567, 568) with regard to the showing of probable cause.

(b) In considering all the sworn evidence placed before the magistrate, his determination that there was a sufficient showing of probable cause to justify the issuance of a search warrant, did not constitute an abuse of discretion.

2. Code Ann. § 27-303(e) (Ga.L.1966, p. 567) is not subject to any of the constitutional attacks made upon it.

3. The seizure of the articles in question was not unconstitutional for any of the reasons urged.

4. The admission of evidence tending to show that appellant had sworn, on a welfare application, that he had less than $800 two months before the date of his arrest was not prejudicial.

5. The record supports the jury's finding that appellant was knowingly in possession of stolen property.

Richard M. Nichols, James I. Wood, Macon, for appellant.

Jack J. Gautier, Dist. Atty., Whitney T. Evans, Macon, for appellee.

ALMAND, Chief Justice.

William B. Campbell appeals his conviction on a charge of receiving and possessing stolen property. Information was received by the Macon police from a neighbor of Campbell's, one H. C. Walker, that some rifles were seen carried into Campbell's apartment, the morning after similar rifles were stolen from J. C. Penney's. The Macon police had earlier received a letter from the Columbus Police Department saying that Campbell was known to receive stolen property.

Walker also said that shortly before or after this episode he saw two men and a woman, who were acting secretively, carry about eleven typewriters into Campbell's apartment.

Based on this information, a search warrant was issued and Campbell's home was searched. Several articles were seized and he was arrested.

1. Appellant's contention that there was an insufficient showing of probable cause to justify the issuance of a search warrant is not meritorious.

(a) Appellant attacks the issuance of the search warrant, on the ground that it was not supported by a showing of probable cause. Code Ann. § 27-303 (Ga.L.1966, pp. 567, 568) says that search warrants may be issued, 'Upon the written complaint of any officer * * * under oath or affirmation which states facts sufficient to show probable cause. * * *'

In light of this Code section, it is clear that the determination of whether or not there was a sufficient showing of probable cause to justify the issuance of a search warrant actually depends on the resolution of two separate and distinct questions. The first is whether or not the facts as stated in the affidavit constitute a sufficient showing of probable cause. In making this determination, we are limited to the facts as stated in the affidavit, but we must take all of these facts as true. The second question is whether, in the light of all of the sworn evidence placed before the magistrate, he was justified in ordering the issuance of the warrant. In making this determination, we are not limited to the facts on the face of the affidavit, and we are free to make judgments on the veracity of any or all of the evidence.

In order to resolve the first question, therefore, we must take the statements contained in the affidavits as true, and see whether or not they amount to a showing of probable cause.

The affidavit gives the address of the premises to be searched, and states that it is occupied by the appellant and his mother. It describes with particularity some 17 rifles and pistols, in all cases giving the brand names and calibers of the weapons; and in some cases giving the serial numbers. It also lists, '100 assorted men's suits Town Craft label and other rifles, guns and clothing stolen from J. C. Penney Co.' The affidavit goes on to give the date of the burglary, and states further that a white male was observed carrying 7 or 8 rifles into the appellant's residence on the day after the burglary. The affidavit states that the appellant is known to the Macon police as a person who will receive stolen goods, and that the rifles in question were taken in the burglary the night before.

Code Ann. § 27-303, supra, requires that the affidavit state facts sufficient to show probable cause that a crime was being committed. The affidavit here states that on the day after a robbery, goods matching the description of some of the goods stolen, were seen carried into the apartment of a man who was known by the local police to receive stolen goods. In our judgment, the affidavit adequately meets the first requirement.

The Code section further requires that the person or place to be searched and the things to be seized be described with particularity. The affidavit set out the names of the persons to be searched, the address of the premises to be searched, and particularly described the things to be seized.

We thus determine that the affidavit met the constitutional challenge posed by the appellant.

(b) We now turn to the question of whether or not the sworn evidence before the magistrate, considered in its totality, justified the issuance of the search warrant. The showing made in our case was superior to the one which was held sufficient in Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887.

In our case, the information upon which the affidavit was based came from a named informant. In the Rugendorf case, the informant was unnamed. Both cases involve possession of stolen property and in both cases the police had knowledge that items similar to the ones seen in the defendant's possession had been recently stolen. In the Rugendorf case, the police were informed by an unnamed informant that the defendant was in the habit of receiving stolen goods. In our case, similar information was contained in the letter from the Columbus, Georgia Police Department.

Furthermore, in our case, there was an independent investigation made to corroborate the informant. A police officer determined that the defendant Campbell did indeed live where the informant Walker said he lived. He also determined that Walker's apartment was in such a position that he could indeed have observed the activities which he said he did.

In United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684, it is stated that enough facts must be placed before the magistrate for him to exercise his own independent discretion, and not just echoing that of the deposing officer. If this is found to be the case, then the appellate court should not overturn this exercise of discretion by a hypertechnical construction.

We thus hold that there was a sufficient showing of probable cause in this case to justify the issuance of a search warrant.

2. Appellant's second enumeration of error attacks the constitutionality of Code Ann. § 27-303(e) (Ga.L.1966, p. 567). That Code section provides in relevant part that...