Nutter v. State

• Decision Date: 13 May 1982
• Docket Number: No. 63378,63378
• Citation: 291 S.E.2d 423,162 Ga.App. 349
• Parties: NUTTER v. The STATE.
• Court: Georgia Court of Appeals

Page 423

291 S.E.2d 423

162 Ga.App. 349

NUTTER v. The STATE.

No. 63378.

Court of Appeals of Georgia.

May 13, 1982.

Theodore S. Worozybt, Atlanta, for appellant.

Lewis R. Slaton Dist. Atty., Joseph J. Drolet, R. Mike Whaley, Thomas Hayes, H. Allen Moye, Asst. Dist. Attys., Atlanta, for appellee.

SHULMAN, Presiding Judge.

Convicted upon a bench trial of two counts of violating the Georgia Controlled Substances Act (Code Ann.Ch. 79A-8, Ga.L.1974, p. 221 et seq.), Nutter appeals the overruling of his motion to suppress evidence.

A warrant was obtained to search Nutter's residence based upon the affidavit of a police officer that on November 30, 1978, he had been told by a reliable informant who "was present at the above address between the dates of 11-26-78 and 11-30-78 [that he] did observe [Nutter and another man] store and use Marijuana." Nutter testified that at no time on those dates was anyone else in the house with him, and he asserts on appeal that the state failed to prove probable cause because there was no probative evidence to establish that what the informer told the police was true.

The appellant contends that where, as here, the defendant, by sworn testimony subject to cross examination, makes a showing that a material part of the affidavit is false, the burden is on the state to present at least a minimal corroboration of the hearsay evidence contradicted by the testimony of the defendant. In Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667, the U.S. Supreme Court established that a criminal defendant has the right under the Fourth Amendment to challenge, subsequent to the ex parte issuance of a search warrant, the truthfulness of factual statements made in the affidavit supporting the warrant. Under the Franks decision, "where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." Id., p. 155, 98 S.Ct....