Mitchell v. State
| Decision Date | 14 May 1979 |
| Docket Number | No. 57595,57595 |
| Citation | 256 S.E.2d 652,150 Ga.App. 44 |
| Parties | MITCHELL et al. v. The STATE. |
| Court | Georgia Court of Appeals |
Paul S. Weiner, Jonesboro, for appellants.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, H. Allen Moye, Asst. Dist. Attys., for appellee.
The appellants were indicted and tried on two counts of violating the Georgia Controlled Substances Act. They appeal their convictions. We reverse.
1. The appellants made a pre-trial motion to suppress evidence; overruling of that motion is cited as the first enumeration of error. It is urged that the motion should have been granted because the warrant was a general search warrant and also that it was not issued on probable cause. Code Ann. § 27-313(a)(2).
At the hearing on the motion it was established that the warrant was issued solely upon the sworn affidavit of a police officer. His affidavit stated there was probable cause to believe "that on the person of Jerry R. Mitchell and that on the premises known as 4675 Stonewall Tell Road, Fulton County, Ga. . . . there is now being concealed certain property, to-wit: Marijuana . . ."
The facts upon which the officer relied to establish probable cause were stated in the affidavit as follows:
Based upon this affidavit a warrant was issued to search the "person" of the appellant and the named premises. The incriminating evidence was discovered during a search executed pursuant to this warrant.
It is the appellants' argument that the warrant is invalid because the officer swore that probable cause existed to search the "person of Jerry R. Mitchell," but the facts upon which probable cause was established refer not to Mitchell but to the "location." It is thus urged that the warrant must be invalidated as a general search warrant. This argument is without merit. Here, as in Fowler v. State, 128 Ga.App. 501(a), 197 S.E.2d 502 (1973),
We thus turn to the question of whether the affidavit sets forth sufficient facts to establish probable cause to search the premises. It is clear that the requirements necessary to establish probable cause based upon information supplied by an unidentified informant are met in this affidavit. The reliability of the informer is shown by a past history of reliability. Steele v. State, 118 Ga.App. 433(3c), 164 S.E.2d 255 (1968). It specifically states how the informant obtained the information by personal observation. Spinelli v. United States, 393 U.S. 410, 416, 89 S.Ct. 584, 21 L.Ed. 637 (1969). Compare Grebe v. State, 125 Ga.App. 873, 189 S.E.2d 698 (1972). And the statement that marijuana "is now being stored," having been seen by the informant within three days preceding the issuance of the warrant, amply demonstrates that the information was current and not stale. Lewis v. State, 126 Ga.App. 123(2b), 190 S.E.2d 123 (1972).
The affidavit was sufficient to establish probable cause for the issuance of a search warrant. Lewis v. State, 144 Ga.App. 847(2), 242 S.E.2d 725 (1978). The motion to suppress was properly denied.
2. At the close of the state's evidence the appellants moved for a directed verdict of acquittal. It is urged that the denial of this motion was error.
The evidence adduced by the state consisted of the following: The premises of 4675 Stonewall Tell Road were searched pursuant to the warrant. The appellants were present, along with several others. Cocaine was discovered in the washing machine and marijuana in the kitchen. An arrest of Mr. and Mrs. Mitchell was then made.
The appellants argue that this evidence does not support a finding that they were in possession of the drugs. It is clear that this evidence does not show actual possession in the appellants and to support a finding that the appellants were in constructive possession of contraband the circumstantial evidence must both be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. See generally Ennis v. State, 130 Ga.App. 716(2), 204 S.E.2d 519 (1974).
A finding of constructive...
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