State v. Boswell
| Decision Date | 23 April 1974 |
| Docket Number | No. 1,No. 49167,49167,1 |
| Citation | 131 Ga.App. 657,206 S.E.2d 682 |
| Parties | STATE v. Jerry BOSWELL et al |
| Court | Georgia Court of Appeals |
Harry N. Gordon, Dist. Atty., E. Bruce Mather, Athens, for appellant.
Syllabus Opinion by the Court
This is an appeal by the state from an interim order sustaining motions to suppress filed by two defendants who were separately indicted for theft by taking watches and clocks from their employer, Westclox Division of General Time Corporation. Such appeal by the prosecution without an immediate review certificate is now permitted under the provisions of Ga.L.1973, pp. 297, 298. With one counsel representing both defendants and with their motions to suppress being identical the parties stipulated that the separate motions would be decided on the same record and the same evidence at one hearing.
As a result of thefts of an estimated $125,000 worth of merchandise from the General Time Corporation plant in Athens, the assistance of the State Division of Investigation was requested on August 17, 1972. The agents learned from the company's employees that the firm had used remote video tape equipment with a camera in the shipping department and with monitoring and recording devices in the main office. The tape contained a visual recording of two individuals who had made separate unauthorized entries on the nights of August 15 and August 16. From a rerun of the video recording the two individuals who had made independent entries and removed boxes from the shipping department on those occasions were positively identified by company employees as Jerry Boswell and George Bolton. Both of these men worked on the third shift in the plastics department which was adjacent to the shipping department. Neither was authorized to enter the shipping department at any time.
The agents then continued a surveillance in the plant for six successive nights beginning August 17, 1972. During that time no one entered the shipping department.
Based upon the information learned from their investigation at the plant and upon viewing the video tapes the agents decided to search the Boswell residence and the Bolton residence. Accordingly, on August 31, 1972, the agents executed separate affidavits and obtained separate search warrants. The search of the Boswell home at 3:20 p.m. approximately one hour after issuance of the warrant disclosed nine Westclox timepieces, they being five desk type clocks and four pocket watches. The search at the Bolton residence that same night resulted in seizure of 343 timepieces, all with the brand name 'Westclox' written on them.
The motion to suppress contained eleven grounds which may be summarized as a failure to show probable cause for issuance of the search warrants as well as alleged technical irregularities in the search warrants themselves and claimed irregularities in searches.
Following a lengthy hearing the trial judge made his detailed findings of fact and conclusions of law. He properly limited his order to the language of each affidavit because there was no evidence presented as to any additional oral testimony having been heard by either magistrate. His ruling was adverse to the defendants in all respects excepting as to the matter of probable cause. On that point the court's ruling stated: 'The court finds that while there was probable cause for the magistrate to find in each case that a crime had been committed and that the defendant in each case was a person concerned in the commission of the crime, there was insufficient evidence in each case submitted to the magistrate to enable the magistrate to determine that there was probable cause for belief that the fruits of the crime were on the person of the defendant or at his residence at the time the warrants issued on August 31, 1973, the thefts having occurred on the nights of August 15-16, 1973.' (R. 35, 36). (References to the year 1973 are typographical errors as the alleged offenses as well as the warrants occurred in the previous year, 1972.) This appeal is by the state from that ruling.
1. Would the passage of 15 days invalidate the search warrant? TIn 100 A.L.R.2d beginning at page 525 there is an annotation containing a collection of cases dealing with lapse of time. The cases show a variation ranging from four days to two months. The citations indicate that one week or less is generally upheld as being within the reasonableness required to meet the 'probable cause' standard. There are some cases, however, in which a week has been ruled as vitiating the proceedings because of the factual situation. The cases are unanimous in holding intervals of two months or more between the act and the affidavit to be impermissible. In ranges from eight days to three weeks the rulings vary depending upon the particular situation involved. The annotator concludes that: 'About all that may be stated by way of a general rule is that the courts will require that no more than a 'reasonable' time have elasped, the nearer the time at which the facts occurred is to the time when the affidavit was made, the more probable it being that the affidavit will be held to justify a conclusion of probable cause.' P. 534.
No Georgia citations are cited in the A.L.R. article, but we have ruled on this timeliness question in several cases. Fowler v. State, 121 Ga.App. 22, 172 S.E.2d 447 was the first of these, this court holding that a date must be stated in the affidavit so as to enable the magistrate to determine, as required by Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260, 85 A.L.R. 108, that 'probable cause relates to current and not stale information.' Tomblin v. State, 128 Ga.App. 823, 198 S.E.2d 366, held in the instance of narcotics that 36 hours would not negate timeliness. The special concurring opinion in McMahan v. State, 125 Ga.App. 491, 493, 188 S.E.2d 183, 184, pointed out that 'nineteen days is too long a lapse of time for a reasonable belief to exist that the same conditions continue to prevail.' There an amount...
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Tabb v. State
...criminal activity is an important factor to be considered when assessing the timeliness of an informant's tip. See State v. Boswell, 131 Ga.App. 657, 206 S.E.2d 682 (1974) (two-week time lapse not fatal where case involved a series of thefts at one location); People v. Wilson, 268 Cal.App. ......
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