Jackson v. State

• Decision Date: 12 October 1973
• Docket Number: No. 48277,No. 2,48277,2
• Citation: 201 S.E.2d 816,129 Ga.App. 901
• Parties: Robert C. JACKSON v. The STATE
• Court: Georgia Court of Appeals

Page 816

201 S.E.2d 816

129 Ga.App. 901

Robert C. JACKSON v. The STATE.

No. 48277.

Court of Appeals of Georgia, Division No. 2.

Oct. 12, 1973.

Grogan, Jones & Layfield, John C. Swearingen, Jr., Columbus for appellant.

E. Mullins Whisnant, Dist. Atty., J. Dixon Belk, Columbus, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

This appeal is from the overruling of a new trial motion upon a conviction for possession of marijuana. Appellant contends the evidence was insufficient to support the conviction, that in fact a motion for directed verdict of acquittal should have been sustained. Additionally, there is a special ground attacking the overruling of defendant's motion to suppress the evidence.

Defendant was arrested along with others during a search of premises conducted by police officers under a search warrant in which the affiant had sworn 'he does believe and has probable cause to believe that 'Jose' does have in his possession drugs of abuse (marihuana) in a dwelling house, brick, with a carport on the right side located at 4522 Evans Street Columbus, Muscogee County, Georgia, and that deponent's probable cause for such belief is based on the following facts: Deponent has information from a reliable informer who has informed in the past and the information resulted in the arrest of a Ward Johnson and William J. Gilmore for possession LSD, that 'Jose' is now possessing marihuana. Informer has seen the quantity of marihuana at the above address, and in possession of 'Jose' within the past twenty-four (24) hours. Officer J. R. Frazier has conducted surveillance of the above address within the past 48 hours and has seen known drug users and pushers entering and leaving.'

At the time of police entry there were a number of people in the living room, including Jackson. Although marijuana was found on some individuals, none was on appellant nor within his immediate area. He was not known as nor had he ever been been known as 'Jose.' None of those present were so known but papers were found in the front bedroom bearing this name along with marijuana. Contraband drugs were also found on some of the individuals as well as in various locations in the residence. Among these were three plastic bags containing marijuana discovered in a rear bedroom closet where the officers also saw army fatigues with the name 'Jackson' on them. In addition, two members of the raiding squad testified they saw papers, pay vouchers, and letters with Jackson's name on them along with a newspaper clipping containing his picture in a chest of drawers in that bedroom.

The officers advised all defendants of their rights as a group. After doing so, the police asked the group who occupied the left rear bedroom and defendant admitted that he did, adding that a codefendant paid the rent on the house and that he, Jackson, shared this with him. Defendant denied this in his unsworn statement, saying he had gone to a party at this house, did not reside there, had no conversation with the police, and had never been in the army.

1. We deal first with the overruling of defendant's motion to suppress the evidence.

For a search warrant to be valid, it must be shown "whether by recitals in the affidavit or by an independent showing before the magistrate, (that) the facts . . . (were) such as to lead a man of prudence and caution to believe that the offense has been committed. Grau v. United States, 287 U.S. 124, 53 S.Ct. 38, 77 L.Ed. 212, . . . And, as was held in Smoot v. State (160 Ga. 744, 128 S.E. 909), supra, the determination as to whether there is probable cause is not to be made by one who applies for issuance of the warrant; it must be made by the magistrate from a consideration of the facts submitted under oath. It must exist before the search is made, and can not be supplied by after discovered facts.' Johnson v. State, 111 Ga.App. 298, 303, 141 S.E.2d 574, 579. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed. 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637.' Wood v. State, 126 Ga.App. 423, 424, 190 S.E.2d 828.

The magistrate specifically must be shown reasons for the informer's reliability and either how the informer obtained such information or that the information itself be so detailed as to obviate the conclusion that it may be only a rumor or be based merely on reputation. See Sams v. State, 121 Ga.App. 46, 172 S.E.2d 473.

In the light of these general principles we next consider seriatim appellant's contentions concerning the decision on the motion to suppress:

( a) The informer's reliability is sufficiently established in that previous information given by him led to two arrests. The instant information was obtained within the last 24 hours and was therefore current. This information is also corroborated by the personal police surveillance for the previous 48 hours during which the officers had seen 'known drug users and pushers entering and leaving.'

As the singular is used throughout the affidavit, it is apparent that the magistrate and the affiant utilized the word to apply to one and the same person. '(A)ffidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a common-sense and realistic fashion.' United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684. The contention by the defense that there may have been two informants is without basis.

The affidavit states the reasons for the informer's reliability and that the informer obtained his information by being present at that address and seeing the marijuana within a certain time period. This with the corroboration by police surveillance sufficiently describes 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 the individual's general reputation.' Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, supra.

( b) One question presented is whether a single family dwelling which is being rented by one person but occupied by several, who may pay sums to the original lessee, may be searched under a warrant denoting the street address and the names of one or more of the occupants. Jones v. State, 126 Ga.App. 841, 192 S.E.2d 171 held a warrant to search a multiple unit dwelling invalid for insufficient description. Miller v. State, 126 Ga.App. 847, 191 S.E.2d 883, followed and applied the same reasoning to a rooming house. In deciding this case does not come within the category of these two cases we point out the obviousness of a multiple occupancy and whether a reasonably diligent police officer would discover this fact in routine investigation. Clearly, if the address is a dormitory, a motel, a duplex or a house which has been physically partitioned and such partitioning can be seen from outside, such as the fact of two front doors, two mailboxes or if the address is listed on the tax records as having two owners, or a rooming house with signs so indicating, the warrant to avoid being defective as a 'general warrant' must on its face indicate more than the street address. However, where the dwelling is a single family dwelling and there are no external signs that its status has been changed, the lessee is not multiple and it would be unrealistic to require the police to ascertain...