State v. Babb

• Court: Georgia Court of Appeals
• Writing for the Court: CLARK; PANNELL, P.J., and QUILLIAN
• Citation: State v. Babb, 214 S.E.2d 397, 134 Ga.App. 302 (Ga. App. 1975)
• Decision Date: 14 March 1975
• Docket Number: No. 2,No. 50059,50059,2
• Parties: The STATE v. C. O. BABB

Page 397

214 S.E.2d 397

134 Ga.App. 302

The STATE v. C. O. BABB.

No. 50059.

Court of Appeals of Georgia, Division No. 2.

March 14, 1975.

Lewis R. Slaton, Dist. Atty., R. David Petersen, Gordon H. Miller, Joseph J. Drolet, Asst. Dist. Atty., Atlanta, for appellant.

Glenn Zell, Al Horn, Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

In this search and seizure case, the State appeals from the order of the trial court sustaining defendant's motion to suppress.

The affidavit by the police officer upon which the search warrant issued set forth the following facts to establish probable cause: 'On March 21, 1974, I received information from a confidential and reliable informant that the above described drugs (barbiturates, amphetamines, MDA, opium derivatives) are now being stored, sold and used at the above described location, by a subject named Charles Ovid Babb. Informant states that informant has been at the above described location within the past 72 hours of March 22, 1974. Informant has proven reliability in the past on several occasions supplying information which has led to the arrest of several persons on drug charges and the seizure of various drugs. One of those arrested being Albert Charles Jolly. A surveillance made by the affiant on March 21-22, 1974 observed several people coming and going to the above described location and staying only a few minutes at a time.'

The motion to suppress attacked the sufficiency of the affidavit on the ground that it contained no underlying facts by which the magistrate could determine how the informant obtained his information. Held:

1. '(T)he Fourth Amendment's commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court's cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting . . .. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.' United States v. Ventresca, 380 U. S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684. Accord, Driscoll v. State, 129 Ga.App. 702, 201 S.E.2d 11.

The critical portion of the affidavit reads: 'On March 21, 1974, I received information from a confidential and reliable informant...