McGuire v. State
| Decision Date | 22 October 1975 |
| Docket Number | No. 2,No. 50912,50912,2 |
| Parties | Wendell McGUIRE v. The STATE |
| Court | Georgia Court of Appeals |
Glenn Zell, Atlanta, for appellant.
William Tinsley, III, Asst. Dist. Atty., Douglasville, for appellee.
On May 2, 1969, defendant pleaded guilty to a charge of burglary and was placed on probation for a period of ten years. Thereafter, on January 31, 1975, marijuana and other drugs were seized from defendant's house trailer pursuant to a search warrant. In a single hearing the trial judge overruled defendant's motion to suppress the seized drugs and ordered that his probation be revoked. Defendant appeals from the order revoking his probation, contending that the trial court erred in refusing to suppress the evidence and that therefore the court's ruling is unsupported by legally admissible evidence. Held:
1. In determining that a probationer has violated the terms of his probation, it is not necessary that the evidence support the finding beyond a reasonable doubt or even by a preponderance of the evidence. Allen v. State, 78 Ga.App. 526, 528, 51 S.E.2d 571. There must, however, be some evidence which would authorize the revocation. Dickson v. State, 124 Ga.App. 406, 184 S.E.2d 37.
The sole ground for the revocation of defendant's probation was his illegal possession of drugs. Aside from the drugs seized pursuant to the warrant, the State introduced no evidence tending to support a violation of appellant's probationary conditions. Had other such evidence been introduced, it would be unnecessary for this court to determine whether the warrant was issued upon a proper finding of probable cause. Cooper v. State, 118 Ga.App. 57, 58, 162 S.E.2d 753. Since, however, the evidence upon which the revocation was based consisted solely of the seized drugs, the revocation order must stand or fall on the basis of the legal sufficiency of the warrant.
2. Defendant's house trailer and adjacent vehicle were placed under surveillance for a period of one week prior to the issuance of the search warrant. Deputy Sheriffs Pollard and White recited their observations in the affidavit as follows:
The officers' observations raise at most a mere suspicion that drugs were being kept on defendant's premises. The sighting of known drug users entering and leaving appellant's trailer falls short of the caliber of information upon which probable cause for the issuance of a search warrant must be based. See Thornton v. State, 125 Ga.App. 374, 187 S.E.2d 583. The officers' observations are similar to the 'drug traffic patterns' considered in Maxwell v. State, 127 Ga.App. 168, 170, 193 S.E.2d 14, 16, where the affidavit was held to be 'totally devoid of any knowledge that any drugs of any kind are located on the premises.' The facts presented to the magistrate...
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