Ferrell v. State, A90A1615
Decision Date | 07 January 1991 |
Docket Number | No. A90A1615,A90A1615 |
Citation | 198 Ga.App. 270,401 S.E.2d 301 |
Parties | FERRELL v. The STATE. |
Court | Georgia Court of Appeals |
Dwight L. Thomas, for appellant.
Robert E. Wilson, Dist. Atty., Thomas S. Clegg, Robert M. Coker, Asst. Dist. Attys., for appellee.
Appellant was tried before a jury and found guilty of two counts of armed robbery and one count of aggravated assault upon a peace officer. He appeals from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts.
1. The trial court's denial of appellant's motion to suppress evidence seized from his home pursuant to a search warrant is enumerated as error.
Appellant contends that material and exculpatory information was omitted from the affidavit upon which the search warrant was issued. Redding v. State, 192 Ga.App. 87, 88, 383 S.E.2d 640 (1989). People v. Stewart, 105 Ill.2d 22, 85 Ill.Dec. 241, 252, 473 N.E.2d 840, 851(9) (1984). See also United States v. Van Horn, 789 F.2d 1492, 1500 (11th Cir.1986). Ross v. State, 169 Ga.App. 655, 657, 314 S.E.2d 674 (1984). In the instant case, there was neither an allegation nor proof of deliberate misrepresentation or reckless disregard for the truth on the part of the affiant. The most that appellant may have shown was the affiant's omission of facts which were neither inculpatory nor exculpatory and which were, therefore, irrelevant to the existence or non-existence of probable cause. It follows that the trial court did not err in denying the motion to suppress on this ground.
Appellant further contends that the motion to suppress should have been granted on the ground that the affidavit contained stale information. However, this contention was not raised in appellant's motion, and was not supported by any evidence adduced at the hearing on the motion. Nevertheless, even if the point had been properly raised, a magistrate could certainly have made a common-sense decision that there was a fair probability that the items sought, which were of enduring utility to their holder, would still be present in appellant's residence when the warrant was sought 13 days after his arrest. See Tuzman v. State, 145 Ga.App. 761, 765(2A), 244 S.E.2d 882 (1978); Thomas v. State, 183 Ga.App. 819, 821(1), 360 S.E.2d 75 (1987); Bowen v. State, 194 Ga.App. 80-81(1), 389 S.E.2d 516 (1989).
Appellant's final contention is that the affidavit contained nothing concerning the reliability and credibility of the informant. Curry v. State, 255 Ga. 215, 217(1), 336 S.E.2d 762 (1985). See also Williams v. State, 193 Ga.App. 677, 680, 388 S.E.2d 893 (1989); Whitten v. State, 174 Ga.App. 867, 868(1), 331 S.E.2d 912 (1985); Thomas v. State, 173 Ga.App. 481, 482(1), 326 S.E.2d 840 (1985).
It follows that the trial court did not err in denying appellant's motions to suppress. Reeves v. State, 197 Ga.App. 107(1), 397 S.E.2d 601 (1990).
2. Hair samples from appellant's person were taken pursuant to a search warrant. Appellant's motion to suppress this evidence was denied and he enumerates that ruling as error.
There is some question whether a search warrant was ever required. The ...
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