Jones v. State, No. 47117

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: STOLZ; BELL, C.J., HALL and EBERHARDT, P.J., and DEEN; EVANS
• Citation: 192 S.E.2d 171,126 Ga.App. 841
• Parties: Richard C. JONES v. The STATE
• Decision Date: 28 July 1972
• Docket Number: No. 47117,Nos. 1,3,2

Page 171

192 S.E.2d 171 126 Ga.App. 841 Richard C. JONES
v.
The STATE. No. 47117. Court of Appeals of Georgia, Division Nos. 1, 2, 3. July 28, 1972.

Page 172

Syllabus by the Court

The trial judge erred in denying the motion to suppress.

The defendant was indicted for the violation of the Georgia Drug Abuse Control Act in that he did have in his possession and control marijuana. The marijuana was found on his person by reason of a search by officers based upon a search warrant issued for the search of the 'entire first floor of a two story frame dwelling house located at 620 Meigs Street, Athens, Clarke County, Georgia.' It was alleged in the search warrant that said premises were occupied by 'John Doe a/k/a 'Barry" who is alleged to have in his possession lysergic acid diethalymide, commonly known as 'LSD' and 'acid.' The affiant swore he had been contracted within the past week by a previously reliable informant whose information on two previous occasions had led to the issuance and execution of search warrants, recovery of drugs and arrest of drug offenders, and that said informant had stated that 'Barry' had been occupying the premises; and that informant had observed sales of 'acid' by 'Barry,' whose last name was unknown. The affiant also deposed that he had checked the premises and the Clarke County tax records, which records showed the described house as having two stories, a first floor and a half attic. Based upon the foregoing, affiant deposed that he had probable cause to believe that a quantity of marijuana was located on said premises.

[126 Ga.App. 842] A motion to suppress evidence was made, in which it was contended that the search warrant was insufficient on its face as to the premises described; that ti was contradictory in its terms; that it contained untrue facts, and the search and subsequent seizure were unlawful in that the warrant was illegally executed. The motion was heard and overruled. The defendant appeals.

Robert D. Peckham, James E. McDonald, Jr., Gordon R. Zeese, Athens, for appellant.

Thomas W. Ridgway, Dist. Atty. Monroe, Charles T. Shean, III, Athens, for appellee.

Page 173

STOLZ, Judge.

To be valid a search warrant must contain a description of the person and premises to be searched with such particularity as to enable a prudent officer executing the warrant to locate the person and place definitely and with reasonable certainty, without depending upon his discretion. Admas v. State, 123 Ga.App. 206, 180 S.E.2d 262; Garner v. State, 124 Ga.App. 33, 35, 182 S.E.2d 902. The State failed to meet this criterion in the case at bar.

The description in the present warrant of the place to be searched as the 'entire first floor of a two story frame dwelling' at a named address, was not sufficiently particular in view of several facts which indicated a multiple dwelling, such as two front doors and three back dors at the same utilities for the premises (one of the factors front door. In addition, the evidence conclusively showed that there were two apartments on the first floor of the premises and that the officers undertook to search both apartments. An investigation of the utilities for th epremises (one of the factors considered in United States v. Jordan, 349 F.2d 107), would have revealed that the electricity bill in the apartment searched was paid by one Patricia Rath rather than the unknown 'John Doe a/k/a 'Barry" for whom the warrant was issued, and that the electricity had been turned off three weeks prior to the execution of the warrant on the very premises where the informant stated he had within 10 days witnessed sales of LSD kept in the refrigerator to [126 Ga.App. 843] keep it cool. (The searching officers testified that they observed, from outside the premises, two young men and a young woman playing chess or checkers by candlelight and found Miss Rath in the bedroom upon entering.) For an excellant annotation in this regard see 11 A.L.R.3d 1330, 'Search Warrant: Sufficiency of Description of Apartment or Room to be Searched in Multiple-Occupancy Structure.' Separate apartments are the same as separate dwellings and therefore the warrant must contain as specific description of the area to be searched as the nature of the circumstances reasonably permits.

In cases, such as the one sub judice, where the search warrant is issued based on an officer's affidavit predicated upon information obtained from a 'reliable informant' and the information proves to be materially unreliable and inaccurate at the motion to suppress hearing, the probable cause for issuance of the warrant disappears.

As to the execution of the warrant, there was no identification made of the only named person for whom it was issued, one 'Barry.' The record affirmatively discloses that the officers searched both apartments looking for 'Barry,'...