Overstreet v. State

• Citation: 211 S.E.2d 436,133 Ga.App. 497
• Decision Date: 05 December 1974
• Docket Number: No. 49837,No. 2,49837,2
• Parties: Danny F. OVERSTREET v. The STATE
• Court: United States Court of Appeals (Georgia)

Page 436

211 S.E.2d 436

133 Ga.App. 497

Danny F. OVERSTREET v. The STATE.

No. 49837.

Court of Appeals of Georgia, Division No. 2.

Dec. 5, 1974.

Augustine & Sullivan, Edward E. Augustine, Athens, for appellant.

Ken Stula, Sol., Frederick R. Tyler, Law Student, Athens, for appellee.

Syllabus Opinion by the Court

MARSHALL, Judge.

Prior to his conviction for possession of less than one ounce of marijuana appellant moved to suppress from evidence the marijuana that was seized from his apartment pursuant to a search warrant. The affidavit supporting the warrant described the premises as 'Apartment 2, Collegiate Apartments Located on The Macon Highway, Occupied by Danny Overstreet, Located in Athens, Clarke County, Georgia,' and stated essentially: that within the past week, the affiant had been approached voluntarily on several occasions by a confidential source who admitted prior drug involvement and who related the following to affiant; that he had seen marijuana in Fred Muckle's residence within the week which Fred Muckle said he bought from Danny Overstreet (appellant); that he had information that Fred Muckle and another person would drive to Commerce, Georgia, to procure some drugs on May 25, 1973. Affiant stated that the information concerning the trip to Commerce proved to be accurate by independent investigation; that later that day, May 25, 1973, affiant 'surveilled' the sale of approximately one pound of marijuana by Fred Muckle to an undercover policeman, and that during the sale Fred Muckle stated he had bought the marijuana from 'Danny.'

Appellant contends that the warrant was insufficient in that (1) it did not describe the premises to be searched with the degree of particularity required by law (2) it did not show the reliability of the informant (3) it did not state the time of appellant's alleged drug activities, and (4) it did not show that marijuana might be found on the premises searched. Appellant also contends the evidence is insufficient to support the verdict. Held:

1. We do not believe the address given in the warrant lacks 'particularity (such) as to enable a prudent officer executing the warrant to locate the person and place definitely and with reasonable certainty, without depending upon his discretion.' Jones v. State, 126 Ga.App. 841, 842, 192 S.E.2d 171, 173; Garner v. State, 124 Ga.App. 33, 35, 182 S.E.2d 902; Adams v. State, 123 Ga.App. 206, 180 S.E.2d 262. While the evidence shows that there were several apartment buildings in the vicinity, there is no indication that the other apartments were numbered consecutively so that there might be another 'Apartment 2.' Nor is there any evidence of confusion on the part of the policemen in locating the correct apartment. See e.g. Jones v. State, 126 Ga.App. 841, 192 S.E.2d 171, supra, and Garner v. State, 124 Ga.App. 33, 182 S.E.2d 902, supra. Furthermore, prior to the search, a policeman checked with the owner of the apartment buildings and verified that Apartment 2 was rented to Danny Overstreet.

2. Whether or not the affidavit meets the tests of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, as to the reliability of the informants, and whether or not the information given is stale, none of the information related in the affidavit indicates that illegal drugs could be found in appellant's apartment. The first test of Aguilar, supra, is that 'the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were . . .' Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, supra (emphasis supplied.) The marijuana seen by the affiant's informant in the first instance was at the residence of ...