Aрpellant Cadle was indicted for violations of the Georgia Drug Abuse Control Act by unlawfully possessing phencyclidine (a felony) and a small quantity of marijuana (a misdemeanor). He was convicted upon his plea of not guilty fоllowing his waiver of a jury trial. He was sentenced to serve two one-year first offender probationary pеriods, such sentences to run concurrently.
Appellant filed a motion to suppress the fruits of a search, giving fоur conclusionary statements why he believed the search warrant was illegally issued thereby voiding the resulting searсh. His motion was dismissed
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for failure to state facts showing wherein the search and seizure was unlawful. Without attempting to amend or perfect his motion, appellant filed an interlocutory appeal to this court alleging еrror in the dismissal without trial court consideration of the merits of the motion. This court affirmed the dismissal of the motion, rеmanding the case for further proceedings.
Cadle v. State,
When the case came on subsequently for hearing, appellant renewed his motion to suppress, attempting to amend the original motion so as to show the factual basis thereof. Apparently on the ground that appellant had relied on the original motion on appeal in a losing cause, the trial court considered the suppression motion as being controlled by a form оf res judicata as between appellant and the state. The trial judge therefore refused to allow appellant to amend the original motion and denied the motion without ever considering its merits.
Appellant, apparently believing himself to be on the horns of a legal dilemma, protected his record by entering a plea of not guilty but at the same time, in effect, threw himself on the mercy of the court by stipulating the crime laboratory report and submitting the case on the existing record. He testified that he had knowingly and unlawfully possessed both drugs. Following his conviction and sentence, appellant filed his appeal enumerating as errors the refusal of the trial judge to grant the original motion to suppress, as amended, the refusal of the trial judge to allow appellant to amend that motion, and the refusal to dismiss the phencyclidine indictment as being constitutionally dеfective. Held:
1. Throughout this trial, appellant has insisted on the irregularity of the search which furnished the evidence leading to his conviction. We believe the trial court erred in refusing to allow appellant to amend his motion to suppress and thereafter consider the motion on its substantive merits. It is the law of this state that, "[r]ights conferred or secured by the Constitution of the United States shall not be deemed to have been waived unless it is shown that there was an intentional relinquishment or an abandonment of a known right or privilege which relinquishment or abandonment was
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participated in by the party and was done voluntarily, knowingly and intelligently.”
Morgan v. Kiff,
Looking to the affidavit in support of the warrаnt issued in this case, it clearly is legally deficient. In factual totality the supporting information states: "Johnny Cadle who resides at 4818 Riverdale Road, Apt. E-3, Clayton County, College Park, Ga., has in his possession at the present time a quantity of marijuana,. . . The informant further stated that the above white male is selling marijuana from the above address.” There followed a physical description of the defendant and a verification by the landlord that Cadle wаs the tenant of Apt. E-3. The affidavit fails because the information furnished by the informer does not reveal how the informer received his information, whether by personal observation or from other sources and in the latter еvent whether such sources were reliable.
Cain v. State,
Nevertheless, appellant has not improved his position by correcting and amending his motion to suppress, even though we have concluded that attempt was improрerly denied. By his admission of unlawful possession of marijuana and phencyclidine on the merits of his trial, upon his oаth, appellant has reduced the improper consideration of the fruits of the illegal search to nothing more than harmless error.
Taylor v. State,
2. In his second principal enumeration of error, appellant sought at trial lеvel and again before this court to have the phencyclidine offense dismissed as being based upon an unсonstitutional statute. In
Sundberg v. State,
The Constitution of this State provides that legislative acts in violation thereof are void and the judiciary shall so declare them. Code § 2-402. The statute upon which the phencyclidine indictment in this case was based has been declared in violation of the State Constitution and therefore void.
Sundberg v. State,
The judgment is affirmed as to the possession of marijuana and is reversed as to the possession of phencyclidine.
Judgment affirmed in part and reversed in part.