Reece v. State

• Decision Date: 10 January 1980
• Docket Number: No. 58614,58614
• Citation: 264 S.E.2d 258,152 Ga.App. 760
• Parties: REECE v. The STATE.
• Court: Georgia Court of Appeals

Page 258

264 S.E.2d 258

152 Ga.App. 760

REECE v. The STATE.

No. 58614.

Court of Appeals of Georgia.

Submitted Oct. 2, 1979.

Decided Nov. 30, 1979.

Rehearing Denied Dec. 12, 1979.

Certiorari Denied Jan. 10, 1980.

Charles W. Smith, Jr., Gainesville, for appellant.

Jeff C. Wayne, Dist. Atty., Thomas M. Cole, Asst. Dist. Atty., for appellee.

SHULMAN, Judge.

Defendant appeals his conviction on the offense of theft by receiving stolen property. We affirm.

1. Appellant maintains that the court erred in denying his motion to suppress evidence unlawfully obtained.

On the issue of "standing," we agree with appellant's contentions. Since defendant was charged with an offense, "the essential element of which is possession" (Cook v. State, 134 Ga.App. 712(2), 215 S.E.2d 728, 731), defendant is endowed with automatic standing to challenge the validity of the searches of which he complains. Id. See also State v. Davidson, 140 Ga.App. 338, 231 S.E.2d 93; Herndon v. State, 138 Ga.App. 346, 226 S.E.2d 141. (To the extent that Autry v. State, 150 Ga.App. 584(1), 258 S.E.2d 268, implies a contrary result, it is not the law and will not be followed.) However, although appellant may have had standing to contest the searches, we disagree with appellant's contention that the evidence obtained therefrom was subject to his motion to suppress.

A. Specifically, defendant complains of the warrantless aerial search conducted by the investigating officers, wherein the officers spotted what they believed to be stolen vehicles stored in an open field on the property of one Wesley Reece (brother of the defendant).

Even assuming, as appellant contends, that flying over the property of Wesley Reece constituted a trespass, and thus an unlawful search, since "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers and effects' is not extended to open fields" (Hester v. United States, 265 U.S. 57, 59, 44 S.Ct. 445, 446, 68 L.Ed. 898), the evidence obtained from the aerial search was not inadmissible as the product of an illegal search. See also Kennemore v. State, 222 Ga. 252(2), 149 S.E.2d 471; Patterson v. State, 133 Ga.App. 742, 212 S.E.2d 858.

B. Additionally, appellant submits that the court erred in admitting evidence obtained from a search of the premises for which a warrant was obtained. Appellant argues that the warrant was issued based upon information received from a police officer (other than the officer to whom the warrant was issued), who in turn had received the information from other sources whose reliability appellant contends was not properly demonstrated.

Although the warrant was admittedly issued on the basis of hearsay, " '(h) earsay may support the issuance of a valid warrant if the magistrate is informed of some of the underlying circumstances supporting the affiant's conclusions and his belief that the informant was credible or his information reliable.' (Cits.)" Galgano v. State, 147 Ga.App. 284, 285, 248 S.E.2d 548, 549.

The fact that the affidavit for issuance of the warrant was based upon information received by the affiant from another police officer, who in turn received the information from "informants," does not preclude a finding of probable cause if the reliability of such informants is established. McNeal v. State, 133 Ga.App. 225(2), 211 S.E.2d 173.

Contrary to appellant's contention, we find that the reliability of the informants was sufficiently established. Since the information supplied by at least one of the informants was against his penal interest (and related to the crime for which defendant was charged), it is invested with inherent credibility. See Smith v. State, 136 Ga.App. 17, 19, 220 S.E.2d 11.

Moreover, since the officer's investigation of the information received from his informants corroborated their allegations against the defendant, the reliability of the informants was sufficiently established to justify the issuance of the search warrant. See, e. g., Dugan v. State, 130 Ga.App. 527(1), 203 S.E.2d 722; Simmons v. State, 233 Ga. 429, 432, 211 S.E.2d 725; Johnston v. State, 227 Ga. 387(1), 181 S.E.2d 42. This being so, the court properly denied defendant's motion to suppress evidence seized in connection with the warrant.

There is no validity to defendant's contention that the informant's information, which was corroborated approximately one week prior to the issuance of the warrant, was stale. See in this regard Covington v. State, 129 Ga.App. 150, 199 S.E.2d 348.

2....