Covington v. State

• Decision Date: 11 May 1973
• Docket Number: Nos. 1,3,No. 48065,2,48065,s. 1
• Parties: Stuart L. COVINGTON et al. v. The STATE
• Court: Georgia Court of Appeals

Page 348

199 S.E.2d 348

129 Ga.App. 150

Stuart L. COVINGTON et al. v. The STATE.

No. 48065.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

May 11, 1973.

Rehearing Denied May 29, 1973.

Glenn Zell, Atlanta, for appellants.

Richard Bell, Dist. Atty., George N. Guest, Decatur, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

The use of the present tense in an affidavit to support a search warrant ('affiant has received information from a reliable informant that subject is selling drugs at the house located' etc.), in the light of other recited circumstances, is sufficient to show that the facts recited are current and not stale. Johnston v. State, 227 Ga. 387, 390, 181 S.E.2d 42; Fowler v. State, 121 Ga.App. 22, 23, 172 S.E.2d 447; Lewis v. State, 126 Ga.App. 123(2b), 190 S.E.2d 123; Butler v. State, 127 Ga.App. 539(1), 194 S.E.2d 261. It appears here that a surveillance had been on defendant's house 'during the past week,' pursuant to the information received, and that numerous automobiles had been stopping there, and numbers of people were entering and leaving the premises.

The affidavit also asserts that 'information from this informant has in the past month resulted in four arrests, all on drug charges.' There is enough in the affidavit to demonstrate that the information is not stale. As was asserted in Johnston v. State, 227 Ga. 387, 390, 181 S.E.2d 42, 45, supra (and see Fowler v. State, 121 Ga.App. 22, 23, 172 S.E.2d 447, supra), "it was not necessary that the precise date of the occurrence be given, but it should appear from the facts that the occurrence should be so near in point of time to the making of the affidavit and the execution of the search warrant as to create a reasonable belief that the same conditions described in the affidavit still prevailed at the time of the issuance of the warrant.' In determining the probability that the defendants still possessed the illicit drugs when the warrant was issued, the judicial officer could consider the facts . . .' (Emphasis supplied.) And the assertion 'that the magistrate is obligated to render a jugment based upon a common-sense reading of the entire affidavit,' from United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684, was also cited.

The construction of the affidavit urged in the dissent 'is the very sort of hypertechnicality-the 'elaborate specificity once exacted under common law,'-condemned by this Court in Ventresca (United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 742, 13 L.Ed.2d 684, supra.) A policeman's affidavit 'should not be judged as an entry in an essay contest,'' Spinelli, supra (Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637) 393 U.S., at 438, 89 S.Ct. at 600 (Fortas, J., dissenting), but, rather, must be judged by the facts it contains.' United States v. Harris, 403 U.S. 573, 579, 91 S.Ct. 2075, 2080, 29 L.Ed.2d 723.

Reliability of the informant is shown in the affidavit by the assertion that he was well known to affiant and to other members of the DeKalb Narcotics Squad, and that within the past month information supplied by the informant had resulted in four arrests, all on drug charges.

Accordingly the contention that the motion to suppress should have been sustained because the information is presumed stale is without merit, assuming arguendo that this question has been properly raised.

Judgment affirmed.

BELL, C.J., HALL, P.J., and DEEN, QUILLIAN, EVANS and CLARK, JJ., concur.

PANNELL and STOLZ, JJ., dissent.

PANNELL, Judge (dissenting).

The affidavit upon which the search warrant in the present case issued was made by an officer who swore in substance; that he has reason to believe that upon person or premises of defendant there is now being concealed-marijuana, and hashish-and that facts tending to establish the foregoing grounds for issuance of search warrant are as follows: 'I have received information from an informant whos(e) reliability is known to me and other members of the DeKalb Narcotics Squad, that the Convington subject is selling drugs at the house 2655 Buford Highway and transporting the drugs in a blue Ford Van, Tag # RF4713. Information from this informant has in the past month resulted in 4 arrests, all on drug charges.'

The affidavit then goes on to state that in the past week a stake-out has been on this house and that many people, cars, etc., have been stopping at this house; that Convington today has driven the...