Hornsby v. State

• Decision Date: 28 October 1971
• Docket Number: No. 46632,No. 3,46632,3
• Citation: 124 Ga.App. 724,185 S.E.2d 623
• Parties: Fred C. HORNSBY v. The STATE
• Court: Georgia Court of Appeals

Page 623

185 S.E.2d 623

124 Ga.App. 724

Fred C. HORNSBY v. The STATE.

No. 46632.

Court of Appeals of Georgia, Division No. 3.

Oct. 28, 1971.

Wesley R. Asinof, Jack Paller, Atlanta, for appellant.

Richard Bell, Dist. Atty., James E. Baker, Decatur, for appellee.

Syllabus Opinion by the Court

PER CURIAM.

Hornsby, appealing from a judgment of conviction and sentence for the offense of possessing marijuana, enumerates the denial of a motion to suppress evidence as error. The motion was made on the ground that the search warrant which produced the evidence was issued without the requisite showing of probable cause.

We agree with the appellant. The affidavit presented in support of the application for the search warrant recites: 'The affiant has received information from a reliable but confidential source that there is now stored at the above described residence approximately ten pounds of marijuana . . . (Here are set forth facts tending to substantiate the informers reliability.)'

Considerably less is required to show probable cause for search or arrest than is required to prove guilt. Draper v. United States, 358 U.S. 307, 311, 79 S.Ct. 329, 3 L.Ed.2d 327. Probable cause for the issuance of an arrest or search warrant may be founded upon hearsay. Strauss v. Stynchcombe, 224 Ga. 859, 863, 165 S.E.2d 302; Peters v. State, 114 Ga.App. 595, 596, 152 S.E.2d 647. But where the hearsay of an informant is relied upon, '(t)he affidavit . . . must give the reasons for the informer's reliability and must either state how the informer obtained the information or the tip must describe the criminal activity in such detail that the magistrate may know it is more than a casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.' Sams v. State, 121 Ga.App. 46, 172 S.E.2d 473, citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. And see United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723.

The reliability of the informer is not in issue. However, the affidavit, as will be seen upon reading, is clearly deficient as to how the informer obtained the information. While it is not necessary that all the information relied upon in seeking a warrant must appear within an affidavit (e.g., a magistrate may give consideration to oral testimony, Marshall v. State, 113 Ga.App. 143, 145, 147 S.E.2d 666), the record...