Eaton v. State
| Decision Date | 15 September 1993 |
| Docket Number | No. A93A1316,A93A1316 |
| Citation | 210 Ga.App. 273,435 S.E.2d 756 |
| Parties | EATON v. The STATE. |
| Court | Georgia Court of Appeals |
McArthur & McArthur, John J. McArthur, Jeffrey A. Rothman, Athens, for appellant.
Alan A. Cook, Dist. Atty., W. Kendall Wynne, Jr., Asst. Dist. Atty., for appellee.
James Randall Eaton appeals from his conviction of possession of marijuana with intent to distribute.
1. Eaton contends that the trial court erred in denying his motion to suppress evidence of marijuana and other items seized from his property pursuant to a search warrant because the affidavit filed in support of the warrant did not establish probable cause. The affidavit was the only evidence presented to the magistrate, who issued the warrant on October 10, 1991. The attesting officer swore in his affidavit that in 1989 the police seized marijuana plants growing near Eaton's residence and several days later the officer received a telephone call from an anonymous tipster claiming that the plants belonged to Eaton. In 1990 the officer received telephone calls from two more anonymous tipsters, one claiming to have seen marijuana plants growing near Eaton's house and the other claiming to have witnessed Eaton in his house selling marijuana. The officer also stated in the affidavit that within the 72-hour period preceding October 10, 1991, he had received yet another call from an anonymous tipster who claimed to have seen marijuana being prepared for sale at Eaton's residence sometime during that 72-hour period and to have seen marijuana in Eaton's residence on another occasion.
"In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the totality of the circumstances analysis enunciated in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), and adopted by [C]ourt in State v. Stephens, 252 Ga. 181, 311 S.E.2d 823 (1984), with the admonition that prudence counsels that Gates be considered as the outer limit of probable cause. In addition, [C]ourt has cautioned attesting officers and magistrates to make every effort to see that supporting affidavits reflect the maximum indication of reliability." (Citations, punctuation and emphasis omitted.) Gary v. State, 262 Ga. 573, 577, 422 S.E.2d 426 (1992). Here, the attesting officer and the magistrate failed to make the effort required to see that the affidavit reflects the maximum indication of reliability. Based on the unreliable information in the affidavit, the magistrate did not have a substantial basis for concluding that marijuana and items used for growing and distributing it would be found on Eaton's property.
The information concerning the tips in 1989 and 1990 is unreliable because it is stale. "[T]he time within which proof of probable cause must be considered by the magistrate must be of facts closely related to the time of the issuance of the warrant so as to justify such finding at that time." (Emphasis in original.) Maxwell v. State, 127 Ga.App. 168, 170, 193 S.E.2d 14 (1972). Tuzman v. State, 145 Ga.App. 761, 764 (2), 244 S.E.2d 882 (1978). The attesting officer failed to specify in his affidavit when the anonymous tips in 1989 and 1990 were received. Depending on the exact dates of the tips in 1990, they could have been received anywhere from nearly a year to two years before the warrant was issued in October 1991, while the 1989 tip could have been anywhere from nearly two years to three years old by the time of the warrant. These lapses of time are so long that it was...
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Sutton v. State
...to believe that contraband or evidence is located in a particular place.(Citations and punctuation omitted.) Eaton v. State, 210 Ga.App. 273, 274(1), 435 S.E.2d 756 (1993). [T]here is a sufficient showing of credibility and thus probability of truthfulness when the affiant can state to the ......
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Powers v. State
...214 Ga.App. 848-849(1), 449 S.E.2d 308 (1994); Langford v. State, 213 Ga.App. 232, 233(1), 444 S.E.2d 153 (1994); Eaton v. State, 210 Ga.App. 273(1), 435 S.E.2d 756 (1993). ...
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Davis v. State, A94A0659
...The complete lack of information about the informant relegated the information he supplied to the status of rumor. Eaton v. State, 210 Ga.App. 273, 275, 435 S.E.2d 756 (1993). Moreover, the anonymous tip is unreliable because the independent investigation done by the police in an effort to ......
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State v. Cartee
...conclusion that the anonymous tip did not provide probable cause without additional supporting evidence. See Eaton v. State , 210 Ga. App. 273, 274 (1), 435 S.E.2d 756 (1993) (anonymous tips containing information that was one to three years old was considered so stale as to be unreliable f......