Veasey v. State
| Decision Date | 23 February 1966 |
| Docket Number | No. 41760,No. 2,41760,2 |
| Citation | 147 S.E.2d 515,113 Ga.App. 187 |
| Parties | Freddie VEASEY, Sr. v. The STATE |
| Court | Georgia Court of Appeals |
Casey Thigpen, Sandersville, for appellant.
Thomas A. Hutcheson, Sol., Sandersville, for appellee.
Syllabus Opinion by the Court
1. A justice of the peace is a proper officer to issue a search warrant. Johnson v. State, 111 Ga.App. 298, 301, 141 S.E.2d 574; 79 C.J.S. Searches and Seizures k72(b), pp. 852, 854.
2. A search warrant is in the nature of a criminal process (Johnson v. State, supra, 111 Ga.App. p. 302, 141 S.E.2d 574). Warrants may issue and arrests
be made on Sunday. Weldon v. Colquitt, 62 Ga. 449(1). The element of time is often decisive in apprehension of law violators and the recovery of property; to make the observance of a religious holiday a license for illegal practice is hardly in conformity with the spirit of the law. This search warrant was not invalid by reason of being obtained on a Sunday.
3. The affidavit upon which the search warrant was issued recites only that the affiant 'on oath presented evidence that a quanity of intoxicating beverages or liquor and distilling apparatus are now in the possession of one Freddie Veasey * * * and depondent, upon said evidence, verily believes that said intoxicating liquors and distilling apparatus are there kept in violation of the laws of the State of Georgia.' This is no more than an affidavit based on information and belief which, under Carson v. State of Georgia, 221 Ga. 229, 144 S.E.2d 384 is not in keeping with the constitutional requirement of probable cause. Carson cited Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 to the effect that the affidavit must include information of some of the underlying circumstances from which the informant concludes that the crime has been committed, and must of itself show sufficient facts to authorize the magistrate to conclude that probable cause for the issuance of the warrant exists. However, in both Carson and Johnson, supra, the record showed no presentation to the issuing magistrate of any facts other than those contained in the affidavit. The warrant in this case recites in addition that the judicial officer 'after hearing evidence supporting the foregoing affidavits' made a judicial determination that probable cause for the existence of the warrant existed. This raises the question whether the facts on which the warrant issues must be shown in the affidavit, as to which it was said in Johnson v. State, 111 Ga.App. 298, 302, 141 S.E.2d 574, 579, supra, that 'it is the better, even necessary, practice that the facts then made to appear as showing probable cause be incorporated in the affidavit.' However, in Johnson the question only related to the affidavit itself and not to oral testimony. See in this connection Marshall v. State, 113 Ga.App. 143, 147 S.E.2d 666. Facts to show probable cause must appear; otherwise the conclusion, whether of the affiant or the judicial magistrate, that probable cause exists is...
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... ... (Cits.)" Orkin v. State, 236 Ga. 176, 189, 223 S.E.2d 61, 73, supra. At the hearing on a motion to suppress 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. Veasey v. State, 113 ... Page 246 ... Ga.App. 187, 147 S.E.2d 515 (1966); Marshall v. State, 113 Ga.App. 143(1a), 147 S.E.2d 666 (1966). As discussed above, part of the state's burden in the instant case was met by testimony from the issuing magistrates and the petitioning officers as to what ... ...
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