Fowler v. State

• Decision Date: 16 January 1970
• Docket Number: No. 3,No. 44828,44828,3
• Citation: 121 Ga.App. 22,172 S.E.2d 447
• Parties: Ivan A. FOWLER v. The STATE
• Court: Georgia Court of Appeals

Page 447

172 S.E.2d 447

121 Ga.App. 22

Ivan A. FOWLER v. The STATE.

No. 44828.

Court of Appeals of Georgia, Division No. 3.

Jan. 16, 1970.

Syllabus by the Court

Where an affidavit offered in sole support of an application for a search warrant contained no statement relative to the time of occurrence in question, the magistrate could not make an independent determination as to whether probable cause still existed for the issuance of the warrant. Thus, the search warrant was invalid.

The defendant was arrested on June 5, 1969, at a residence in Clarke County, rented by him and several others. The arrest resulted from a search of the premises executed under a search warrant of the same date. The search revealed several growing marihuana plants and the defendant was charged with possession of marihuana.

The defendant moved to suppress evidence obtained as a result of the search on the grounds that the warrant was invalid and that certain incriminating statements made by the defendant should have been suppressed because the defendant was not given the full warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.

After hearing on the issues presented, the trial judge overruled the motion to suppress. Upon the certificate by the trial judge that the order should be subject to immediate review, the defendant appeals to this court.

Denny C. Galis, Athens, for appellant.

Thomas W. Ridgway, Dist. Atty., Monroe, for appellee.

QUILLIAN, Judge.

The affidavit submitted to the magistrate as the basis for issuing the search warrant reads as follows: 'The facts tending to establish affiants reason for belief and probable cause for belief are as follows: information received by the affiant from a reliable informer that has given reliable information in the past 4 years that has resulted in the arrest and conviction of several subjects. Informer advised that he personally observed marihuana plants growing in a flower box at the above location and fully described said plants to the affiant and said affiant being familiar with marihuana plants and marihuana from past experience. Affiant also has received other information in the past that marihuana, narcotic and dangerous drugs are located on the above premises.' The defendant contends that the warrant was invalid on its face for several reasons among which is that it was impossible for the magistrate to make an independent judgment as to whether or not the information was current or stale. This objection is meritorious and in our view dispositive of the case.

While there are no Georgia cases precisely on this point, research of foreign authority indicates unanimity in the decisions that a prime element in the concept of probable cause is the time of the occurrence of the facts relied upon. Anno., 100 A.L.R.2d 525. As was held in Welchance v. State, 173 Tenn. 26, 28, 114 S.W.2d 781, in order to justify the issuance of a search warrant 'it is essential that the date on which the alleged offense was committed be stated in the affidavit in order that the magistrate may determine whether probable cause exists for the issuance of the warrant.' The rationale behind this approach is succinctly set forth in Bentley v. Commonwealth, 239 Ky. 122, 125, 38 S.W.2d 963, where the court recognized that if an affidavit be deemed sufficient without any recitation of the time when the alleged facts happened: 'then the conduct of the citizen throughout the entire period of his past life would furnish grounds for continuous and repeated searches of his premises, if, perchance, he had been guilty during that period of harboring on his premises contraband articles which it was lawful to discover by a search warrant, if properly obtained.' The court proceeded to point out that it was not necessary that the precise date of the occurrence be given...