Riggins v. State

• Decision Date: 22 October 1975
• Docket Number: No. 1,No. 50989,50989,1
• Citation: 136 Ga.App. 279,220 S.E.2d 775
• Parties: Charles RIGGINS v. The STATE
• Court: Georgia Court of Appeals

Page 775

220 S.E.2d 775

136 Ga.App. 279

Charles RIGGINS v. The STATE.

No. 50989.

Court of Appeals of Georgia, Division No. 1.

Oct. 22, 1975.

Jones, Rountree & Solomon, M. Theodore Solomon, Alma, for appellant.

Dewey Hayes, Dist. Atty., C. Deen Strickland, Asst. Dist. Atty., Douglas, for appellee.

MARSHALL, Judge.

Appellant was indicted, tried and convicted of a violation of the Georgia Controlled Substances Act by possessing more than one ounce of marijuana. He was sentenced to serve three years in the penitentiary. Prior to the trial on the merits, appellant moved to suppress the fruits of an alleged illegal search of the trailer and grounds occupied by appellant. He further moved for a continuance because his counsel had not had adequate time to prepare for trial. Both motions were overruled and trial and conviction followed. Appellant now appeals the conviction basing his appeal primarily on the admission of evidence he claims was illegally obtained through a disregard of his right to privacy and to be secure in his effects and based upon the denial of the requested continuance. Held:

The transcript reflects that an unnamed informer gave information to a police officer that appellant was in possession of a substantial quantity of marijuana. This information was detailed as to the description of the grounds, the trailer in which the drugs were believed to be deposited, the actual container from which the drugs were being dispensed, the fact that the informer had seen drugs there within the past 24-48 hours, and had in fact made a purchase of drugs. All of this information was furnished by the police officer who served as the affiant at the time the warrant used to effectuate the search was issued. There is clear and unequivocal evidence that the foregoing facts were divulged in an unsworn conversation between the police officer and the justice of the peace who ultimately issued the warrant. After this discussion, principally testified to by the police officer, the justice prepared the affidavit. After the affidavit had been prepared and not until that time did the justice of the peace cause the police officer to have 'my right hand extended in the air and I swore to the affidavit before he attached his name or seal.' That affidavit in the scantiest of verbiage provides in pertinent part, 'Upon informatis (sic) received from a reliable and confidential informer, who has stated to the affiant information on several occasions about drug violations and whi (sic) information has proven to be true and correct, states that Charles Riggins has in his possession a quantity of marijuana and dangerous drugs.' No other information was provided in the affidavit. Though the justice of the peace appeared as a witness, he did not give any specific information concerning the conversation he had with the affiant nor did he add to or controvert the evidence that the oath was administered after the conversation held between the two and that the oath only related to the affidavit which was executed. That affidavit also affirmatively recites '. . . The following facts (are) sufficient to show probable cause . . .' We note, parenthetically, that where the State attempts to amplify and bolster a sworn affidavit by parol evidence, such evidence is of questionable value when the affiant 'boot straps' the affidavit for the trial judge rather than the trial judge requiring the issuing magistrate to indicate what he relied on in addition to the affidavit as establishing probable cause. Maddox v. State, 133 Ga.App. 709, 710, 213 S.E.2d 1. The issuance of a search warrant is a judicial function and requires that the magistrate be satisfied that probable cause exists in his mind, not that of the affiant. See: 79 C.J.S. Searches and Seizures § 74 f, p. 872; Smoot v. State, 160 Ga. 744, 128 S.E. 909; Johnson v. State, 111 Ga.App. 298, 303, 141 S.E.2d 574. We need not decide whether the State can furnish evidence of probable cause in the absence of the testimony of the judicial officer who issued a warrant (see: Marshall v. State, 113 Ga.App. 143, 147 S.E.2d 666), since under the evidence it is clear that the parol evidence used to bolster the affidavit was not under oath. Both the United States Constitution and the Georgia Constitution provide in substance that no warrant shall issue except upon probable cause supported by oath. Georgia Code § 2-116; Amendments to the Constitution of the United States of America, Art. IV (Code § 1-804). Though the affidavit was under oath, the underlying circumstances were not. In a similar case, United States v. Anderson, 9 Cir., 453 F.2d 174, 177, it was said: 'Postal Inspector Deyo testified that he believed he was under oath during the entire conference while the Commissioner testified...