Lowery v. State, 50823

Citation135 Ga.App. 423,218 S.E.2d 132
Decision Date15 July 1975
Docket NumberNo. 50823,No. 2,50823,2
PartiesCharles LOWERY v. The STATE
CourtUnited States Court of Appeals (Georgia)

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.

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 cases
  • Love v. State, 54561
    • United States
    • United States Court of Appeals (Georgia)
    • 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
    • United States
    • United States Court of Appeals (Georgia)
    • 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 132. 2. The state urges that even if the warrant be defective, and we have found it to be, this search can be upheld under on......
  • Weaver v. State, 54781
    • United States
    • United States Court of Appeals (Georgia)
    • February 14, 1978
    ...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 S.E.......
  • Wells v. State, 50812
    • United States
    • United States Court of Appeals (Georgia)
    • July 15, 1975
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