Lowery v. State, No. 50823

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtQUILLIAN; PANNELL, P.J., and CLARK
Citation135 Ga.App. 423,218 S.E.2d 132
PartiesCharles LOWERY v. The STATE
Decision Date15 July 1975
Docket NumberNo. 50823,No. 2

Page 132

218 S.E.2d 132
135 Ga.App. 423
Charles LOWERY
v.
The STATE.
No. 50823.
Court of Appeals of Georgia, Division No. 2.
July 15, 1975.

Roger E. Bradley, Blue Ridge, for appellant.

C. B. Holcomb, Dist. Atty., Frank C. Mills, III, Asst. Dist. Atty., Canton, for appellee.

QUILLIAN, Judge.

The defendant appeals from his conviction for burglary. The first enumeration of error is that it was error to overrule the motion to suppress certain evidence obtained under a search warrant. Held:

1. The affidavit for the search warrant provided as grounds for issuance: 'Based on information from a reliable informer, who has given reliable information in the past upon which arrests have been made and convictions had.' The record fails to reveal that any other evidence was introduced before the issuing magistrate.

The affidavit was fatally defective since it failed to show how the informant obtained his information, Bell v. State, 128 Ga.App. 426, 196 S.E.2d 894, nor does it reveal that such information was current and not stale, Fowler v. State, 121 Ga.App. 22, 172 S.E.2d 447. While there was testimony before the trial judge concerning when the information was received, there was nothing to show that the issuing magistrate had that information or that the information itself was current. Hence, it was error to deny the motion to suppress.

Page 133

2. 'In view of this determination, it is unnecessary to consider defendant's other enumerations of error.' Good v. State, 127 Ga.App. 775, 777, 195 S.E.2d 264, 266.

Judgment reversed.

PANNELL, P.J., and CLARK, J., concur.

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5 practice notes
  • Love v. State, No. 54561
    • United States
    • Georgia Court of Appeals
    • January 11, 1978
    ...based merely on an individual's reputation (E. g., Cochran v. State, 136 Ga.App. 94, 96, 220 S.E.2d 83 (1975); Lowery v. State, 135 Ga.App. 423, 218 S.E.2d 132 (1975); Bell v. State, supra); and (3) the magistrate was shown that the informant's tip was current, not stale (E. g., Lowery v. S......
  • State v. Bradley, Nos. 52077
    • United States
    • Georgia Court of Appeals
    • May 7, 1976
    ...to show that the magistrate based his determination of probable cause on anything other than the defective affidavit. Lowery v. State, 135 Ga.App. 423(1), 218 S.E.2d 2. The state urges that even if the warrant be defective, and we have found it to be, this search can be upheld under one of ......
  • Wells v. State, No. 50812
    • United States
    • United States Court of Appeals (Georgia)
    • July 15, 1975
    ...Division No. 2. July 15, 1975. [135 Ga.App. 422] Jack Dorsey, Atlanta, for appellant. Lewis R. Slaton, Dist. Atty., Joseph Drolet, R. [135 Ga.App. 423] David Petersen, Asst. Dist. Attys., Atlanta, for [135 Ga.App. 421] QUILLIAN, Judge. The defendant was indicted for murder, tried and convic......
  • Weaver v. State, No. 54781
    • United States
    • United States Court of Appeals (Georgia)
    • February 14, 1978
    ...the informer has an ascertainable basis for his knowledge (Cochran v. State, 136 Ga.App. 94, 96, 220 S.E.2d 83 (1975); Lowery v. State, 135 Ga.App. 423, 218 S.E.2d 132 (1975)); and (2) facts from which to conclude that the informant was reliable. McGuire v. State, 136 Ga.App. 271, 273, 220 ......
  • Request a trial to view additional results
5 cases
  • Love v. State, No. 54561
    • United States
    • Georgia Court of Appeals
    • January 11, 1978
    ...based merely on an individual's reputation (E. g., Cochran v. State, 136 Ga.App. 94, 96, 220 S.E.2d 83 (1975); Lowery v. State, 135 Ga.App. 423, 218 S.E.2d 132 (1975); Bell v. State, supra); and (3) the magistrate was shown that the informant's tip was current, not stale (E. g., Lowery v. S......
  • State v. Bradley, Nos. 52077
    • United States
    • Georgia Court of Appeals
    • May 7, 1976
    ...to show that the magistrate based his determination of probable cause on anything other than the defective affidavit. Lowery v. State, 135 Ga.App. 423(1), 218 S.E.2d 2. The state urges that even if the warrant be defective, and we have found it to be, this search can be upheld under one of ......
  • Wells v. State, No. 50812
    • United States
    • United States Court of Appeals (Georgia)
    • July 15, 1975
    ...Division No. 2. July 15, 1975. [135 Ga.App. 422] Jack Dorsey, Atlanta, for appellant. Lewis R. Slaton, Dist. Atty., Joseph Drolet, R. [135 Ga.App. 423] David Petersen, Asst. Dist. Attys., Atlanta, for [135 Ga.App. 421] QUILLIAN, Judge. The defendant was indicted for murder, tried and convic......
  • Weaver v. State, No. 54781
    • United States
    • United States Court of Appeals (Georgia)
    • February 14, 1978
    ...the informer has an ascertainable basis for his knowledge (Cochran v. State, 136 Ga.App. 94, 96, 220 S.E.2d 83 (1975); Lowery v. State, 135 Ga.App. 423, 218 S.E.2d 132 (1975)); and (2) facts from which to conclude that the informant was reliable. McGuire v. State, 136 Ga.App. 271, 273, 220 ......
  • Request a trial to view additional results

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