Redding v. State, A89A0559
| Decision Date | 22 June 1989 |
| Docket Number | No. A89A0559,A89A0559 |
| Citation | 192 Ga.App. 87,383 S.E.2d 640 |
| Parties | REDDING v. The STATE. |
| Court | Georgia Court of Appeals |
Stephen T. Maples, Decatur, Gregory N. Crawford, Savannah, for appellant.
Robert E. Wilson, Dist. Atty., Barbara B. Conroy, R. Stephen Roberts, Asst. Dist. Attys., for appellee.
We granted appellant's petition for interlocutory review of the denial of his motion to suppress evidence that he committed burglary, rape, and aggravated sodomy. Appellant contends that the evidence, samples of his hair and blood, which link him to the crime scene and victim, was obtained as a result of a search warrant issued without probable cause because it was based on misrepresentations to the issuing magistrate, and that it was illegally executed. OCGA § 17-5-30.
It is undisputed that in preparing the affidavit in support of the search warrant, the affiant, Detective Rosser, made false statements and omitted certain facts about the victim's statements concerning appellant, and about appellant himself. For example, the detective stated that the victim said her attacker had a scar in the groin-abdomen area; actually, she referred to it as a one-half inch healed wound a few inches above the hip. He also stated that "when [the victim] observed a photograph of [appellant], she stated that he looked similar to her assaulter." In fact, the detective had previously stated in his own report that when the victim saw appellant's photograph in the photo lineup, she stated that he resembled her attacker, "but it was not him." The trial court, following the standard set out in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (see, e.g., Nutter v. State, 162 Ga.App. 349, 291 S.E.2d 423 (1982), found that the latter statement contained in the affidavit was knowingly false or made with reckless disregard for the truth, and so it excised the false statement but found that the remaining content of the affidavit was sufficient to establish probable cause. See Kelly v. State, 184 Ga.App. 337(1), 361 S.E.2d 659 (1987). Compare Daniels v. State, 183 Ga.App. 651, 652, 359 S.E.2d 735 (1987).
In addition to the misstatements of fact that were made in the affidavit, appellant points to certain omissions that he claims were material, and argues that the Franks reasoning should be extended to those material omissions. In other words, in reviewing the sufficiency of the affidavit, the omitted material statements or information should be added to the affidavit to determine whether the warrant would still be supported by probable cause. See, e.g., United States v. Ippolito, 774 F.2d 1482 (9th Cir.1985). The majority of courts that have ruled on this question, one of first impression in our state, have taken this approach. We have previously intimated that exculpatory material is not required to be included in an ex parte application for a search warrant if no misconduct on the affiant's part has occurred. Hayes v. State, 182 Ga.App. 319(1), 355 S.E.2d 700 (1987). Courts in other...
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State v. Short
...supra note 58. See, also, Franks v. Delaware, supra note 51 ; U.S. v. Eng , 571 F. Supp. 2d 239 (D. Mass. 2008) ; Redding v. State , 192 Ga. App. 87, 383 S.E.2d 640 (1989) ; State v. Olson , 11 Kan. App. 2d 485, 726 P.2d 1347 (1986) ; State v. Cuong Phu Le , 463 S.W.3d 872 (Tex. Crim. App. ......
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Moss v. State
...quoting DeYoung v. State, 268 Ga. 780, 787, 493 S.E.2d 157 (1997). 34. Abraha, 271 Ga. at 311, 518 S.E.2d 894. 35. Redding v. State, 192 Ga.App. 87, 88, 383 S.E.2d 640 (1989). Accord Peters v. State, 213 Ga.App. 488, 489, 445 S.E.2d 290 36. See Redding, 192 Ga.App. at 88, 383 S.E.2d 640; Pe......
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Porter v. State, A03A1688.
... ... Redding v. State, 192 Ga.App. 87, [264 Ga. App. 530] ... 383 S.E.2d 640 (1989). We will, as the trial court did, only consider the portion of the affidavit ... ...
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Gunsby v. State, A00A2418.
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