Williams v. State
| Decision Date | 24 June 1977 |
| Docket Number | No. 54099,No. 3,54099,3 |
| Citation | 236 S.E.2d 893,142 Ga.App. 764 |
| Parties | Patrick G. WILLIAMS v. The STATE |
| Court | Georgia Court of Appeals |
Paul S. Liston, Guy E. Davis, Jr., Atlanta, for appellant.
Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Richard E. Hicks, Asst. Dist. Attys., Atlanta, for appellee.
The defendant, proprietor of an Atlanta antique store, appeals from a conviction of four felony counts of receiving stolen goods plus one misdemeanor count. The case involves four search warrants, all of which were considered in motions to suppress, and two multicount indictments, the first of which was nol-prossed after a number of demurrers were sustained. It further appears without dispute that the defendant purchased a number of items of silver from two of the state's witnesses who confessed to having stolen it from various residential households and who eventually cooperated with the police to the extent of wearing "body bugs" which transmitted their conversations with the defendant to police officers with receiving equipment. The nineteen enumerations of error are, insofar as possible, grouped around the principles of law involved.
1. The search warrants are here designated by the name of the judicial officer granting them. The Brock, Alverson and Shaw warrants all indicated the defendant's place of business to be searched as 2181 Peachtree Road, Atlanta, known as, or a business known as, American Eagle Antiques. The Thompson warrant, executed 8 days after the Alverson and 9 days after the Brock warrant, states only "2181 Peachtree Road, Atlanta," but the affidavit identifies American Eagle Antiques as the defendant's business referred to. There was only one front door. Originally signs on the outside of the building indicated American Eagle Antiques was on one side of the interior of the building and another business on the other side; it appears from testimony that the signs were removed because the other proprietor was unhappy at the publicity. While the interior space was allocated, there was no actual physical separation of the business by door or full partitions, although separation of show cases was maintained. So far as appears, only that part of the area actually under the defendant's control was searched, and a basement area open to the first floor generally. This case is not controlled by Jones v. State, 126 Ga.App. 841, 192 S.E.2d 171 or Miller v. State, 126 Ga.App. 847, 191 S.E.2d 883 as contended, where there were entirely separate multifamily dwellings, and where, in both cases, the alleged owners were never identified but other persons were searched. See, on the general question of probable cause, Ward v. State, 234 Ga. 882, 883, 218 S.E.2d 591.
2. A search warrant may be supplemented by oral testimony. Campbell v. State, 226 Ga. 883, 885, 178 S.E.2d 257. Here, Fulton County (not DeKalb) was orally designated as the county of venue.
3. The Aguilar-Spinelli tests of the informer's tip are "(1) that the affidavit gives reasons for the informer's reliability, and (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 it is more than a 'casual rumor circulating in the underworld or an accusation based merely on an individual's general reputation.' " Sams v. State, 121 Ga.App. 46, 48, 172 S.E.2d 473, 474. In the Brock warrant the informant stated that one Meloff burglarized certain premises (loss verified) the same date as the warrant, that he sold his stolen goods to the defendant and would do so that day; that the police then actually saw Meloff enter the defendant's premises with items similar to those stolen and emerge without them. In the Alverson warrant, dated July 13, Meloff was quoted as stating that he had made deliveries from burglaries regularly to the defendant, the latest on the preceding day, and another burglar, unnamed, told the affiant he had committed 48 burglaries in the last five months and sold all silver items to the defendant, the last delivery being two weeks previously. In the Thompson warrant the informant described silver which the affiant identified as coming from named burglarized premises and relayed information as to where it was stored in the building along with plans for removing it in a Ryder truck. Investigation showed a Ryder truck was in fact parked at the address. The criminal activity was thus in each case described in adequate detail. Examination of the warrant also shows sufficient identification of the stolen goods. Allegations that a burglary was in fact committed at a named address are not conclusory. The warrant meets the Aguilar standards of specificity.
4. A motion to suppress the order referred to as the Shaw warrant (which was in fact not a warrant but an order to repossess certain items seized under the Brock warrant and returned to the defendant a day or two before) was heard and denied. It is conceded that no search was made under this order, the defendant agreeing to surrender the items so returned, which was done. As we have held the Brock warrant valid, objections to the Shaw order on this ground are without merit. It appears from the Alverson motion to suppress that the police officer who was the affiant in the Brock order was in fact sworn by the district attorney before Judge Shaw, and, in the absence of a transcript, we must assume produced evidence to support the petition of the district attorney to the effect that the items released by Judge Brock were surrendered by the latter by mistake or in excess of his jurisdiction, as found by Judge Shaw. "The presumption afforded the superior court judge rests upon the broad presumption that all public officials perform their duties in the manner and to the extent required by law." Irvin v. Woodliff, 125 Ga.App. 214, 219, 186 S.E.2d 792, 796. The Brock warrant appears to have been attached to the Shaw order for purposes of identification of the goods, and does not render the order invalid.
5. Two of the warrants were executed in the wee hours of the morning. Since this was a time of day when the surrounding businesses were devoid of customers or employees we are inclined to agree that this procedure avoided some embarrassments which would have attended a daytime search. Further, information that the goods were about to be moved, in at least one of the warrants, would justify the haste. Veasey v. State, 113 Ga.App. 187, 147 S.E.2d 515.
6. Connally v. Georgia, 429 U.S. 245, 97 S.Ct. 546, 50 L.Ed.2d 444, holds that a magistrate who collects fees for warrants issued, but may not collect fees for those denied, is not a neutral and detached magistrate, and that the motion to suppress evidence recovered by virtue of such a warrant should have been granted. Thompson, who issued the July 21 warrant, was a justice of the peace. We recognize that his ruling preceded the...
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