Futch v. State

• Decision Date: 19 February 1986
• Docket Number: No. 71587,71587
• Parties: FUTCH et al. v. The STATE.
• Court: Georgia Court of Appeals

Page 493

342 S.E.2d 493

178 Ga.App. 115

FUTCH et al. v. The STATE.

No. 71587.

Court of Appeals of Georgia.

Feb. 19, 1986.

Rehearing Denied March 5, 1986.

Elmer H. Young III, Port Wentworth, for appellants.

J. Lane Johnston, Dist. Atty., for appellee.

DEEN, Presiding Judge.

The appellants, Ronald and Lisa Futch, were convicted of possessing more than one ounce of marijuana in violation of the Georgia Controlled Substances Act. On appeal they attack, inter alia, the validity of the search warrant, pursuant to which evidence was seized from their residence Held:

1. In determining whether to issue a search warrant, "[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for... conclud[ing]' that probable cause existed." Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983); State v. Stephens, 252 Ga. 181, 311 S.E.2d 823 (1984).

In this case, the affidavit submitted in application for the search warrant provided that "[a] concerned citizen who is a mature person, that is regularly employed with personal connection with the suspect, and who has demonstrated a truthful demeanor makes known the following facts to this deputy. (1) that at the above stated location there is now growing app. 300 Marijuana Plants app 4 in high. (2) that in the tin ulity building in a gray toolbox there is app. 2 lbs of cut Marijuana (3) that in the house trl there is app 2 lbs of cut Marijuana." In determining whether the magistrate had a substantial basis for concluding that probable cause existed, we have only this affidavit to consider. At the hearing on the motion to suppress, the magistrate who had issued the warrant recalled that neither the affiant police officer nor the "concerned citizen" who accompanied him had related any additional information.

Even were the discarded, two-pronged Aguilar-Spinelli requirement of demonstrating an informant's reliability and the basis of the informant's knowledge still in effect, the affidavit in the instant case would be sufficient to support issuance of the search warrant. See Davis v. State, 129 Ga.App. 158, 198 S.E.2d 913 (1973), where this court approved a similar affidavit. See also Miller v. State, 155 Ga.App. 399, 270 S.E.2d 822 (1980). "Because the totality of the circumstances analysis under Illinois v. Gates actually is a more lenient test (supposedly a practical, common-sense approach) than the Aguilar-Spinelli test it logically follows that the affidavit in this case provided sufficient basis for finding probable cause." State v. Farmer, 177 Ga.App. 18, 20, 338 S.E.2d 489 (1985).

2. The appellants' remaining enumerations of error have no merit.

Judgment affirmed.

POPE and BEASLEY, JJ., concur.

POPE and BEASLEY, JJ., also concur specially.

POPE, Judge, concurring specially.

I concur in all that Presiding Judge Deen has written. I write to emphasize to the bench and bar that, in regard to search warrants, we must not exalt form over substance. It does no good for this court to lecture police and magistrates about the form affidavits should take in connection with applications for search warrants. As pointed out by the Supreme Court in State v. Stephens, 252 Ga. 181, 311 S.E.2d 823 (1984), we now take "a practical, common-sense approach to the requirement of probable cause relative to the issuance of search warrants." Id. at 182, 311 S.E.2d 823.

In the present case, this rule of common sense is illustrated. As the majority recognizes, the concerned citizen accompanied the deputy sheriff when he went to the magistrate to apply for the warrant. So the magistrate knew the citizen was not reluctant to be identified by the magistrate as the person who gave the very specific information, and the magistrate could infer from the wording of the application as it was brought to her and from common sense that the citizen simply did not want to be publicly named in the application. ¹ The indicia of reliability of the informer himself included the deputy sheriff's vouching for him and stating several factors that pointed to trustworthiness.

Further, the detailed description of what the informer saw added reliability. It was not vague or generalized but instead was extremely precise so less likely to have been contrived. The fact that several specific places on the premises, and marijuana in two different forms, were listed, weighed against a conclusion that the observer was mistaken about seeing marijuana. The detailed description of the premises themselves also indicated the citizen's close familiarity with them. ² The detailing of all of these things itself " 'reduced the chances of a reckless or prevaricating tale, thus providing "a substantial basis for crediting the hearsay." ' [Cit.]" Thomas v. State, 173 Ga.App. 481, 482(1), 326 S.E.2d 840 (1985). What the citizen observed, as described in the affidavit, had some earmarks of being marijuana, and the magistrate could take account of that as well, with respect to validity.

The magistrate also knew that the observation had been made that day and that the deputy sheriff was anxious to obtain the warrant and conduct the search immediately, while the odds were greatest that what had been seen was still there. Also, it was already late in the afternoon.

Although there was no evidence before the magistrate that the sheriff had independently corroborated the information that the marijuana was present, it is the totality of the circumstances which we must consider. Of course, some independent...