State v. Bradley
| Decision Date | 07 May 1976 |
| Docket Number | No. 3,52078,Nos. 52077,s. 52077,3 |
| Parties | The STATE v. F. C. BRADLEY. The STATE v. J. C. McSWINEY |
| Court | Georgia Court of Appeals |
F. Larry Salmon, Dist. Atty., Wallace W. Rogers, Jr., Asst. Dist. Atty., Rome, for appellant.
Jones, Robbins & MacLeod, James A. Robbins, Jr., Rome, for F. C. Bradley.
Smith, Shaw, Maddox, Davidson & Graham, Groze Murphy, Jr., Rome, for J. C. McSwiney.
1. 'The law requires that the question of probable cause for the issuance of the search warrant must be independently determined by a neutral and detached magistrate and not by the officer engaged in the often competitive enterprise of ferreting out crime.' Patterson v. State, 126 Ga.App. 753, 755, 191 S.E.2d 584, 586. When the facts relied upon to establish probable cause are tips from an unidentified informer, the affidavit offered by the authorities must meet the following tests: (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; 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.
While the affidavit in this case may have been sufficient as to the unidentified informant's reliability (Tomblin v. State, 128 Ga.App. 823, 824(1), 198 S.E.2d 366), it was fatally defective in the two remaining respects. The affidavit at best gives a mere description of a suspect without descriptive details of criminal activity or without reciting how the informer got his information. Mitchell v. State, 136 Ga.App. 2, 220 S.E.2d 34. Likewise the affidavit does not demonstrate that the information, regardless of how it was obtained, was not 'stale.' Cochran v. State, 136 Ga.App. 94, 220 S.E.2d 83.
It is urged that the testimony of the officer who took the tip and made the affidavit supplies the missing 'facts' necessary for the magistrate's determination of probable cause. At the preliminary hearing the officer on direct examination testified that the informant had revealed that he (the informant) had actually seen the marijuana in the car, that it was being transported at the time of the telephone tip, that Bradley would be driving a white or beige Plymouth or Dodge with a specified tag number. The officer further testified that this information had been orally related to the magistrate. The transcript reveals however that on cross examination this officer contradicted himself by testifying that the affidavit fully contained all the information he had given to the magistrate. The magistrate was not called to testify as to what information, if any, other than that appearing in the affidavit he used to establish probable cause. Fowler v. State, 128 Ga.App. 501, 197 S.E.2d 502. The burden of proof is upon the state to show what facts constituting probable cause existed and were presented to the magistrate before the warrant was issued. Veazy v. State, 113 Ga.App. 187, 147 S.E.2d 515; Marshall v. State, 113 Ga.App. 143(1a), 147 S.E.2d 666. The record here fails to show that the magistrate based his determination of probable cause on anything other than the defective affidavit. Lowery v. State, 135 Ga.App. 423(1), 218 S.E.2d 132.
2. The state urges that even if the warrant be defective, and we have found it to be, this search can be upheld under one of the exceptions to the warrant requirement. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419.
One of the exigent circumstances justifying a warrantless search is where there is a seizure and search of a moving vehicle. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The word 'automobile' is not a talisman however and unless the vehicle is moving or is readily movable there are no exigent circumstances and a warrant is required. Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564. When the vehicle is moving however, there is only a requirement that the search and seizure be based upon sufficient probable cause. Unlike the situation where a warrant is sought, which requires the officer receiving the tip to disclose all the relevant facts to the issuing...
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