Cochran v. State, 50967

• Decision Date: 09 October 1975
• Docket Number: No. 50967,No. 3,50967,3
• Citation: 220 S.E.2d 83,136 Ga.App. 94
• Parties: Joyce D. COCHRAN v. The STATE
• Court: Georgia Court of Appeals

Page 83

220 S.E.2d 83

136 Ga.App. 94

Joyce D. COCHRAN v. The STATE.

No. 50967.

Court of Appeals of Georgia, Division No. 3.

Oct. 9, 1975.

Blanton, Fudge & Blanton, Cecil T. Blanton, Canton, for appellant.

C. B. Holcomb, Dist. Atty., Frank C. Mills, III, Asst. Dist. Atty., Canton, for appellee.

STOLZ, Judge.

The defendant, having been indicted for violation of the Georgia Controlled Substances Act, appeals from the denial of her pre-trial motion to suppress certain evidence (amphetamine tablets) alleged to have been seized under an invalid warrant.

1. The place to be searched was described in the affidavit as 'The residence of Joyce Brady Cochran, located in a mobile home situated in a mobile home park on Mineral Springs Road, one mile west of Jasper, Pickens County, Georgia, known as Mineral Springs Trailer Park,' and in the warrant as 'Residence of Joyce Brady Cochran, being a mobile home situated in a mobile home park on Mineral Springs Road, one mile west of Jasper known as Mineral Springs Trailer Park.' This was a sufficient specificity of the premises to meet the requirement of the Constitutional provision. Code Ann. § 2-116. See Steele v. State, 118 Ga.App. 433(3b), 164 S.E.2d 255. Cf. Garner v. State, 124 Ga.App. 33, 182 S.E.2d 902 and cits.

2. With regard to the showing of the reliability of the informer, the affidavit states: 'Information received from reliable sources that sales of contraband of the nature described above are being made. Observation by law enforcement officers over a period of time tend to substantiate said information.' The magistrate testified on the motion-to-suppress hearing that the affiant-sheriff had told him upon application for the warrant that the informants 'had given him information in the past that proved to be reliable.' This was a sufficient showing of reliability. Tomblin v. State, 128 Ga.App. 823(1), 198 S.E.2d 366 and cits. Although the observation by law enforcement officers was merely substantiation of the informants' information, it was nevertheless a partial basis for the warrant, and the reliability of such officers is presumed as a matter of law. McNeal v. State, 133 Ga.App. 225(2), 211 S.E.2d 173 and cits. Even if this amounted to 'merely the assertion of police suspicion, . . . (i)t adds weight to the tip so that a magistrate, looking at the whole of the evidence, can find probable cause.' Sams v. State, 121 Ga.App. 46, 48, 172 S.E.2d 473, 474.

3. '(T)he affidavit and oral sworn testimony given to the magistrate who issued the search warrant failed to satisfy the basic requirement of probable cause in that there was no information from which the magistrate could have determined how or when the informer(s) obtained the information given the affiant.' Morrow v. State, 128 Ga.App. 461, 462, 196 S.E.2d 901 and cits. This court, in Covington v. State, 129 Ga.App. 150, 199 S.E.2d 348, held that '(t)he use of the present tense in an affidavit to support a search warrant . . ., in the light of other recited circumstances, is sufficient to show that the facts recited are current and not stale.' Although the affidavit here recites that it is based on 'information received from reliable sources that sales of contraband of the nature described above are being made,' (emphasis supplied) the only 'other recited circumstances' are the substantiation by observation of law enforcement officers, and there is no indication of the current status of such observations. Furthermore, the presentense allegation of the affidavit is contradicted by the testimony of both the affiant and the magistrate at the hearing to the effect that, although the affiant told the magistrate that the several informants had called him within the previous week (one within three days; at least one other on that same day), he did not tell him how or when the informants obtained the information.

4. One of the 'general tests to be applied to determine the sufficiency of the affidavit's facts and circumstances to show probable cause,' is 'that the affidavit either specifically states how the informer obtained the information or the tip describes the criminal activity in such detail that the magistrate may know that it is more than a 'casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation. " Bell v. State, 128 Ga.App. 426, 427, 196 S.E.2d 894, 895 and cits. As we have held in Division 3 hereinabove, there was no showing to the...