Shrader v. State

• Decision Date: 11 September 1981
• Docket Number: 62029,Nos. 62027,62030,62028,s. 62027
• Citation: 159 Ga.App. 522,284 S.E.2d 37
• Parties: SHRADER v. The STATE (four cases).
• Court: Georgia Court of Appeals

Page 37

284 S.E.2d 37

159 Ga.App. 522

SHRADER v. The STATE (four cases).

Nos. 62027, 62028, 62029, 62030.

Court of Appeals of Georgia.

Sept. 11, 1981.

Roger R. Auman, Jr., Trenton, for appellant.

David L. Lomenick, Jr., Dist. Atty., James A. Meaney III, Asst. Dist. Atty., for appellee.

POPE, Judge.

Donnie Lee Shrader appeals his conviction of two misdemeanor and two felony violations of the Georgia Controlled Substances Act. Held:

1. In his first enumeration of error appellant contends that the trial court erred in overruling his motion to suppress evidence seized from his house pursuant to a search warrant issued and executed on March 19, 1980. The affidavit upon which the search warrant was based stated that the affiant, the Sheriff of Dade County, had received information from a confidential informant on March 15, 1980 to the effect that on that date the informant had personally observed marijuana in the kitchen of appellant's dwelling house, hidden "in the cabinets where the pots and pans are stored." The affidavit recited that the informant's reliability was untested; however, the sheriff stated in the affidavit that the information which had been provided by the informant was "consistent" with facts which had been uncovered through independent police investigation. Additionally, the affidavit stated that the sheriff had known the informant for one-and-a-half years and considered him to be reliable, truthful and accurate.

At the hearing on appellant's motion to suppress, the sheriff testified that he had told the justice of the peace who had issued the warrant that the subject premises had in the recent past been a place where runaway juveniles had been staying; he also had received numerous citizen complaints regarding the large volume of traffic in and out of the premises. The sheriff stated that he believed this activity, which continued during the interval between the day the informant came forward with his information and the day the warrant was sought, corroborated the informant's story. He noted that rumors about drug use at the subject premises had been circulating for several months preceding his request for the warrant and that on at least one occasion during this time a juvenile had been found on the premises apparently under the influence of drugs. Further, the sheriff testified that this informant had in the past given reliable information relating to criminal activity; that the informant was employed and an upstanding member of the community; that he had known the informant personally for a year and a half; that the informant had never given false information; and that he had no reason to doubt the informant's veracity. The sheriff explained that his testimony at the hearing as to the informant's proven reliability was correct and that the apparent inconsistency in the affidavit occurred as the result of two different cases proceeding at about the same time. Appellant argues that the foregoing facts were insufficient to establish probable cause for the issuance of the search warrant.

"The general tests to be applied to determine the sufficiency of the affidavit's facts and circumstances to show probable cause are: (1) that the affidavit gives reasons for the informer's reliability; (2) that the affidavit either specifically states how the informer obtained the information or the tip describes the criminal activity in such detail that the magistrate may know that it is more than a 'casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation,' [Cits.] and (3) a time period closely related to the commission of the offense must be affirmatively stated within the affidavit to show that the information contained therein is not stale." Bell v. State, 128 Ga.App. 426, 427, 196 S.E.2d 894 (1973). Also, the affidavit for a search warrant may be supplemented by oral testimony. Campbell v. State, 226 Ga. 883(1), 178 S.E.2d 257 (1970), cert. den. Campbell v. Georgia, 401 U.S. 1002, 91 S.Ct. 1246, 28 L.Ed.2d 535 (1971); Williams v. State, 142 Ga.App. 764(2), 236 S.E.2d 893 (1977).

The evidence in this case is uncontradicted that the informant himself saw drugs on the subject premises. Compare Tuten v. State, 156 Ga.App. 758, 275 S.E.2d 796 (1980), wherein the affiant applied for a search warrant based on facts which affirmatively showed that he had no knowledge of any illegal drugs actually on the premises. While there is some conflict in the evidence as to the informant's reliability, we do not find the trial court's decision in this matter to be clearly erroneous, and there is evidence in the record to support that decision. Thomas v. State, 151 Ga.App. 844, 261 S.E.2d 757 (1979); Walker v. State, 146 Ga.App. 572(1), 246 S.E.2d 690 (1978). See generally Shaner v. State, 153 Ga.App. 694(1), 266 S.E.2d 338 (1980). Accordingly, we turn our attention to appellant's contention that the information presented by the sheriff was stale.

" 'Staleness' as relates to probable cause is not always measured by the interval between the commission of the crime and the issuance of the search warrant. 'Staleness' as relates to probable cause is measured by the probability that the thing to be seized is located at the place to be searched and it involves the interval between (i) the time when the thing to be seized is indicated by the evidence or information to be at the place to be searched and (ii) the time when the search warrant is issued." Mitchell v. State, 239 Ga. 456, 458, 238 S.E.2d 100 (1977). Reading the facts presented in a common sense manner,...