State v. Causey

• Decision Date: 15 May 1974
• Docket Number: No. 3,No. 48961,48961,3
• Citation: 132 Ga.App. 17,207 S.E.2d 225
• Parties: The STATE v. Burl E. CAUSEY
• Court: Georgia Court of Appeals

Page 225

207 S.E.2d 225

132 Ga.App. 17

The STATE v. Burl E. CAUSEY.

No. 48961.

Court of Appeals of Georgia, Division No. 3.

May 15, 1974.

Rehearing Denied May 30, 1974.

F. Larry Salmon, Dist. Atty., Rome, for appellant.

Clary & Kent, Horace T. Clary, Rome, Cook & Palmour, Bobby Lee Cook, Summerville, for appellee.

Syllabus Opinion by the Court

PANNELL, Judge.

This is an appeal, with certificate for review, by the state from the order of a trial judge sustaining the defendant's motion to suppress.

The affidavit stated that the affiant had probable cause to believe that Eugene (Dink) Causey had committed a crime and that he had in his possession certain articles, etc., or things 'that constitute tangible evidence of the commission of the crime of Theft By Receiving Stolen Property that said tangible evidence is comprised of Fruits of the crime of the theft of a shipment of assorted shipment of clothing; traveral (sic) sport coats, suits, dresses, swim ware, handbags, taken 21 July, 1972, Tucker, Ga. and that said evidence is presently concealed on the person of the named accused and on the premises located at 26 Cresent Ave. a white asbestos siding house being last house on right traveling east from Cave Spring St., before Plant St. intersection. (Plant St.-Street leading to Hopewell Church.)

'The probable cause on which the belief of the affiant is based is as follows: Affiant states under oath, that on the 21st July 1972 a shipment of clothing was taken in Tucker, Ga. and the clothing being a shipment to Sears & Roebuck Co. Atlanta, Ga. Affiant states he working with Det. Tom Kennedy of Chattanooga, Tenn. police dept. have come into possession of a quantity of the clothing taken in the Sears shipment on the 21st July, 1972. Affiant states that on this date a person was observed at the Causey residence who went into the residence empty handed and when he come out, had a large quantity of clothing and left the house with Jackets, pocket books, house coats, and these items were identified as being a part of the shipment by C. O. Hestley of Sears Security, Atlanta, Ga. and Paul Lee Sears Security, Chatt. Tenn. Affiant states under oath based on this information and other that was sworn to he has reason to believe that a large quantity of the goods being at Eugene 'Dink' Causey's residence.

Sworn to and subscribed before me on this the 27 day of October, 1972.

s/Bunyan L. Rudd J.P.

Judge

s/Lewis Evans

Affiant'

The order issuing the warrant recited it was issued upon a finding of probable cause based upon the facts in the affidavit and upon facts submitted under oath, in addition to those in the affidavit. The magistrate knew that the affiant was a Police Officer of the State of Georgia and affiant was the only person who testified before him. The magistrate testified as to what occurred and what was said on oath to him prior to the issuance of the warrant substantially as follows: that after administering an oath to the affiant, he talked to the affiant about 20 minutes about the case, that the affidavit was a condensation of all the facts testified about; that the affiant testified that two named Police Officers of Chattanooga, Tenn., observed a person going into and coming from the premises searched, going in with nothing and coming out with goods subsequently identified as part of those belonging to Sears & Roebuck taken in the Tucker theft; that the name of the observed person was also given though not written into the affidavit so as to protect this informer; this information was given to affiant by these two officers (who were present though not sworn and questioned) and that all of this happened on the date the affidavit was made and the warrant was issued. There was also testimony that this affiant was alerted by another Georgia Police Officer who had been working with the Chattanooga, Tenn. officers by information that a man had been arrested in Tennessee who had sold in Tennessee certain items from the Tucker larceny belonging to Sears, which had been identified as such property by certain named employees of Sears & Roebuck and that these Chattanooga officers and the person arrested were coming down to see and have pointed out to the officers the place from which he secured the merchandise. The following testimony of the magistrate as to a part of what affiant had testified prior to issuance of the search warrant was stricken from the evidence and not considered by the trial judge: 'Mr. Lewis Evans stated to me that he had been contacted by, I don't recall the name, of some other officer of the D.O.I. of the State of Georgia that had worked closely with these Chattanooga police officers in previous cases that-in the Chattanooga area there, someone was coming there and selling clothing, and they had made some buys there at this time. A person in Chattanooga had been charged with selling this clothing, and they had been checked out with the security officer in Chattanooga that worked for Sears Roebuck and Company, because they had Sears labels in them, and these clothing that were being sold there were part of a shipment of clothing that had been stolen or taken in Tucker, Georgia. And one of the things that they identified these things by was the make of some type of jacket, Olympic sports jacket. They said at this time these jackets were not on sale anywhere in this shipment that was taken. This was-I don't know whether it was a cut or type of sport jacket, sport coat, and the security in Chattanooga, Tennessee had stated these were not for sale anywhere else, except they were on this shipment.'

This subsequent portion of the statement of facts relates to the actual search and seizure and particularly to the question of whether the seizure of articles, not those identified to the Sears theft, was of such a general nature and so unauthorized as to make the total seizure, including the Sears items, an illegal seizure.

Officer Barnett, Superintendent of Detectives in the City of Rome, testified that he and the other officers went to the described premises and when no one answered, they raised a window and entered, and thereafter searched the premises, leaving a copy of the warrant on the mantel in one room. He further testified that the dwelling house, while a dwelling house inside, it was not set up as a residence, there was no bedroom or anything of that type in the house, there were no beds set up to sleep on or any part of the house that could be called livable, to move about in, sit down, or go to bed to sleep; there were boxes stacked to the ceiling on which labels, or a portion thereof had been cut out, dresses on racks, wall to wall; that the stolen Sears merchandise was located in spots all over the house and the representatives of Sears, Roebuck & Company were there to identify it. He further testified that they took everything in the house except an old table and chair; that a few of the items were of a kind on which they had had previous recent reports of theft; that the defendant had a reputation of being a fence for stolen goods and the premises looked like a warehouse, and for these reasons they took and seized all of the other items. Pictures of the premises tended to bear out this view.

1. Probable cause for the issuance of a search warrant, on a motion to suppress may be shown by the affidavit attached to the warrant, together with evidence of the sworn testimony adduced before the issuing magistrate. Campbell v. State, 226 Ga. 883, 885, 178 S.E.2d 257; Hornsby v. State, 124 Ga.App. 724, 185 S.E.2d 623; Fowler v. State, 128 Ga.App. 501, 503, 197 S.E.2d 502; Butler v. State, 130 Ga.App. 469, 470(1), 203 S.E.2d 558. 'In dealing with probable cause . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life in which reasonable and prudent men, not legal technicians, act.' Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct....