Gordon v. State

• Decision Date: 24 July 1979
• Docket Number: No. 57461,57461
• Citation: 258 S.E.2d 664,150 Ga.App. 862
• Parties: GORDON v. The STATE.
• Court: Georgia Court of Appeals

Page 664

258 S.E.2d 664

150 Ga.App. 862

GORDON v. The STATE.

No. 57461.

Court of Appeals of Georgia.

Argued March 6, 1979.

Decided July 10, 1979.

Rehearing Denied July 24, 1979.

James K. Jenkins, John Oliver Ellis, Jr., Atlanta, for appellant.

Stephen Pace, Jr., Dist. Atty., Miriam D. Wansley, Asst. Dist. Atty., for appellee.

UNDERWOOD, Judge.

Appellant, Gordon was convicted of possession of approximately four and one-half pounds of marijuana in violation of the Georgia Controlled Substance Act, Code Ann. § 79A-801 et seq. On appeal he contends the trial court erred in overruling his motion to suppress evidence (the marijuana) seized in a search conducted pursuant to a search warrant.

An unidentified informant told a police officer, Alexander, that he had within the preceding twelve hours observed about ten pounds of marijuana in a footlocker in the bedroom of Gordon's apartment. Officer Alexander relayed the information to Lieutenant Sullivan, who in turn passed it along to Detective Derrick. Detective Derrick then went before a Justice of the Peace, Lazaros, presented an affidavit and obtained a search warrant.

At the hearing on the motion to suppress the magistrate testified that he was entitled to a fee of four dollars for each application for a search warrant considered by him, but that as a matter of personal preference he billed the county only in those cases in which the warrant was actually issued.

Appellant makes two attacks on the trial court's denial of his motion to suppress. First, he contends that the magistrate's practice of billing the county only in connection with warrants which he issued, rather than for each application considered, undermined his standing as a neutral and detached magistrate required by the United States Constitution. Second, he insists there are material inaccuracies in the information provided to the magistrate, orally and by affidavit, upon which the search warrant was issued which inaccuracies relate to an alleged deficiency in the reliability of the informant.

1. In Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444 (1977), the United States Supreme Court invalidated Georgia's earlier system of compensating magistrates only when a warrant was issued. The present Georgia law, Code Ann. § 24-1601, allows compensation for each application for a search warrant considered by a magistrate. Justice of the Peace Lazaros testified that he fully understood that he was entitled to compensation for each application presented to him, but as a matter of personal preference, he collected from the county only in those cases when the warrant was issued.

The test used in determining whether a procedure for issuing search warrants creates an atmosphere which could lead to an unfair and partial judge is whether the situation is one " 'which would offer a possible temptation to the average man as a judge to forget the burden of proof required . . . or which might lead him not to hold the balance nice, clean and true between the State and the accused . . .' " Connally v. Georgia, supra, at 249, 97 S.Ct at 548. Applying this test to the instant case, we do not find this magistrate's personal practice of billing only for warrants issued to be violative of Connally principles. None of the pecuniary temptations of the former system of issuing warrants are present here since the magistrate was cognizant of his right to collect a fee for each application for a search warrant, and his decision not to collect when warrants were not issued was a personal preference.

2. The appellant makes a second vigorous attack upon the trial court's denial of his motion to suppress contending "the affidavit and oral testimony presented to the justice of the peace contained misrepresentations of material facts which formed the basis of the probable cause for the issuance of the search warrant." The affidavit contained the following facts: "On 02-01-78 Det. Lt. Joel Sullivan at 2:58 P.M. received a call from Officer Michael Alexander, who stated a reliable informer with whom he has had contact for approximately two years, and whose information has lead to several arrests gave the following information: In Apt. K-2 Charesa Apts. was a footlocker that contained a large amount of marijuana. The information is that the above-mentioned marijuana was seen within the last twelve hours by said informer." At the hearing on the motion to suppress, all three officers involved testified, and on cross-examination Officer Alexander indicated that the prior arrests which resulted from information produced by this informant were...