*1 separate republication of a Williams, not, is still it a which was by persons publication constitutes [a] libel different “Each of action. party.” wrong aggrieved separate Howe Brad a and distinct 1082) (1910); Atlanta Gas Co., Cole v. SE street Light Co., 144 Ga. reaching questions the statement Without even of whether plaintiff defamatory, law, actionable, of as a matter was not entitled “as to or summary judgment given in favor of defendant’s reversal (b). against § 9-11-56 all” the claim it. OCGA asserted McMurray, Judgment Carley, J., J., P. C. concurs. affirmed. judgment only. concurs May 3, 1989 Decided Rehearing July denied Joseph Bergen, Bergen, appellant. S. for B. Frederick Craytor, ap- Phillips, Bell, Jr., Fisher & B. Deborah for Griffin pellee. DEBEY et al. v. THE STATE. A89A0089. Carley, Judge. Chief posses- Appellants guilty possession of cocaine were found They appeal marijuana from the intent
sion with to distribute. judgments guilty and sentences that were entered on conviction verdicts. appellants urge enumeration, tc
In their their motion sole by suppress erroneously The evidence denied trial court. appellants pursuant sought e had seized which been upon is- search search warrant. affidavit which the warrant was p.m. following: [affiant] received sued recited the information from C.R.I. “On 4:30 9/10/87 large [sic] their stated marijuana being [an] describee amount stored and sold above by goes Tim and location. Informant stated that name w/i w/m subjects goes [Juanita], will sale the name or both Anita Junaita marijuana. by Sgt. Investigation T. of Easl [sic] [sic] Jones conduct Debej Timothy Department [appellant] Point Police lives at the above reveals is familiar with address. Informant
described
marijuana
stages.
appearance
growing
East Poinl
in its
and dried
investigatior
College
conducting
[sic]
Park Police have been
enougl
suspect
this
This officer feels there
on
probable
premises.” Appellants urge
four months.
of a
warrant of the above describee
issuance
search
“totality
applicable
that,
under the
Illinois
Because the designed rule is to deter miscon rather punish magistrates, duct than it has issuing to the errors “ in been ‘modified so as not to evidence seized bar the admission of reasonable, good-faith reliance an a search [by warrant officer] Leon, United States v. is subsequently that held to be defective.’ (I) (104 U. S. 905 mar “[T]he ginal produced suppressing nonexistent benefits evidence ob in objectively subsequently tained reasonable reliance on a invali dated search justify warrant cannot substantial costs ,the Leon, supra (III C). exclusion.” United States v. at 922 “It is magistrate’s responsibility officer’s allega to determine whether the so, probable and, comport tions establish if cause to issue a ing requirements in form with Amendment. In of the Fourth case, ordinary expected question magis an officer cannot to be probable-cause trate’s or his that the form judgment determination issues, technically ‘(0]nce the warrant sufficient. the warrant literally nothing policeman seeking comply more the can do to error, Penalizing magistrate’s law.’ the officer for the [Cit.] own, rather than logically his cannot contribute to deterrence Leon, supra States v. Amendment violations.” United Fourth at 921 B). (III in those warrant has been Accordingly, cases wherein a search issued, sought question the ultimate of whether evidence should suppressed dependent be erroneous de upon magistrate’s issued, termination upon the warrant have but the of should objective ficer’s good-faith upon the determina magistrate’s reliance tion, though erroneous have might that determination been. See Adams v. Ga. App.
The Supreme has Court enumerated four instances where an of- ficer cannot be grounds said have had believing reasonable where, therefore, properly suppression warrant was issued and Leon, See United States appropriate supra does remain an remedy. (III C). instances, Of those four enumerated record shows only one is to the At the disposition present relevant case. hearing suppress, outset on the counsel appellants’ by stipulating suppression possible grounds eliminated three affidavit, neutral detach- said the truthfulness of what was sufficiency magistrate, issuing of the war- the facial ment of the only appropriate Accordingly, suppression in this case would be rant. prob- supporting in indicia of if affidavit was ‘so the officer’s entirely un- existence [his] belief its able cause as to render official C). (III supra Leon, at 923 [Cits.]” United States reasonable.’ not be and need is set forth above text of the affidavit of officer appellants quoted again are correct here. If sufficiently no so shown, is nevertheless deficient en- in the existence of to render the officer’s belief holding simply tirely the of- There no basis for unreasonable. lawyer presumably scholar, ficer, is neither a nor a constitutional upon magis- objective good faith when he relied failed to act sufficiently shown cause was trate’s determination that the probable certainly in its indicia no less deficient affidavit. supra. in Adams v. was the affidavit than suppress, denying appellants’ the trial court did In motion to specifically shown or state whether it found good-faith rule to whether it found the ruling upon applicable. may Thus, its court have based the trial supra, upon Illinois v. than United rather *3 supra. Regardless appellant’s reasoning, however, its denial of of the trial court’s previously suppress should be affirmed. As
motion to noted, case were such that the and the evidence this circumstances only possible applying good-faith ex- the Leon rationale for inadequate ception as is that the affidavit of the officer was entirely probable unreason- render his belief in the existence of only evidence, Thus, itself, which able. it is and no other determining demonstrat- would be relevant in whether the burden of by exception ing applicability good-faith was met the Leon (II B) (5th Gant, 484, 759 F2d 487-488 State. See United Cir. 1985). law, show, as a matter of The four corners of the affidavit probable as to render that it the indicia of was not so its entirely unrea- in the officer’sbelief existence good- Accordingly, finding applicability Leon of the sonable. of the existing exception circumstances demanded under the would be appellants’ motion was and evidence. It follows that a denial of only ruling ruling that, on if the trial court based its correct and even finding cause, affirmance an an erroneous of the existence ruling the trial court “When a nevertheless be mandated. assigned. legally upheld regardless correct, the reason it will be (4) (363 Phillips App. 54, SE2d [Cits.]” 185 Ga. appellants’ Accordingly, denial of good-faith exception Leon affirmed rule. under the Judgment McMurray, Deen, J., J., Banke, J., P. P. P. affirmed. Birdsong Sognier, Pope, judgment JJ., J., and concur. concurs in only. Beasley, JJ., Benham and dissent. Judge, dissenting.
Beasley,
The affidavit lacked
was not invoked
the State.
invalidity
1. The assertion of
of the search warrant focuses on
showing reliability
knowledge.
lack of
basis of informant’s
applying
“totality
Defendant contends that
circum-
Gates,
stances” test of Illinois v.
preme Stephens, in State v. Court (1984), supplanted two-prong test interim magistrate’s issuing practical, circumstances.” The common-sense decision from cluding hearsay task make a is to hearing,
everything
at the
in-
adduced
“veracity”
persons
knowledge”
supplying
“basis
probability
information, that
a fair
contraband
or evidence
a crime will
be found at
described location.
duty
issuing
reviewing
magis-
court’s
to ensure that the
concluding
trate had a
cause ex-
substantial basis
Stephens,
pointed
probabilities
isted.
As
out
‘we deal with
practical
[which]
[but are]
are not technical
consider-
the factual and
everyday
prudent men,
ations of
life on
not le-
which reasonable and
gal
applies
technicians act.’ This same
to a determination
test
Luck,
information
in an
State
contained
affidavit
stale.
the for the informant’s officer’s to any investigation. missing on-going substantiation Likewise enough that “there of the officer’sconclusion gap prime importance is the as to a warrant.” Of issuance of search marijuana storage ob- was or sale of the information about the how tained. validity approach utilizing to the
Even a common-sense circumstances,” the warrant and under by mag- insufficiency had the sworn facts invalid because istrate. information related reliability. the informant obtained There no disclosure how nothing informant’s to and there was affirm (4) App. 492, State, 494 Felker v. 172 Ga. As observed (323 Aguilar- (1984), “many the cases decided under SE2d assessing helpful Spinelli tip an informant’s rule . . . remain At best there cause for a search.” is sufficient to establish provide wholly conclusory inadequate to a which are were statements independently magistrate the exis- to ascertain sufficient basis for the (1) (333 App. State, v. Poole 175 Ga. 374 tence cause. (372 207) (1985); App. State, 172, SE2d Collins v. 188 Ga. 173 SE2d certainty more than mere less than a but ‘Probable cause means opinion speculation, suspicion possibility. rumor, or . . . Mere inquiry. enough; grounds . . . The after not there must be reasonable place magistrate facts to enable officermust before the sufficient merely adopt the con to his latter make own determination and State, 774, Kelleher clusions of the officer.’ (1) 889) (1988), quoting 165 Ga. 777 App. SE2d from Yocham 101, Lewis v. See (2) requires approve To cred-1 acceptance nonspecific information. ulous unverified being necessity staleness, the 2. the issue of There no reach question in United second is whether the rule fashioned applies. Leon, U. LE2d S. 897 good principle Leon faith rely argued chose instead to rule validity this case. State fashioning exception, “the states: of the warrant. prosecution ordinarily objective good faith able to should establish require (Emphasis supplied.) Supra . . . .” 924. Leon does not inquiry good existed and should court be initiate an into whether applied despite lack of as to save the search underlying the warrant’s issuance. appears what was
Once it that the warrant defective because presented magistrate deficient, exception applies. it is incumbent It was not State that the show raised, concerned need below or here. Otherwise the *5 long about lished exists cause because as as it and can be estab- pursuant
later, evidence seized to it would admissible. This completely magistrate’s “responsibility,” avoid the which is de- quotation App. in scribed 916 Leon Adams v. from SE2d Supreme “[Reviewing in Leon: Court said courts will not ‘provide defer to a warrant based on an affidavit that does not magistrate probable determining with a substantial basis for the existence of Supra cause.’ at 915. principle good exception Adams, In the Leon of a faith is made opinion majority an issue. The categories in Adams does all of not address good apply. exception in which the does Two of 1) them are relevant here: in indicia of (Leon 923); cause so to render the officer’sbelief at unreasonable affidavit which makes issuance of search warrant look like a rubber stamp (Leon 923). application of the officer’s inadequate
The affidavit in Adams was so that it could con- experienced i.e., cluded the sonably better, officerknew he not have rea- could “objectively relied the warrant based on it. He must be good apply. reasonable” in his reliance on it for supra supported at 922. The trial court would have been had it suppressed the evidence on this I basis. But could not conclude Adams that as matter of law trial court was error not fit- ting category. the affidavit into this finding hand,
On the other the evidence here would not sustain a faith. Cf. Evans v. Judge joins I am authorized to state that Benham this dissent. July Decided Rehearing July denied appellants. Zell,
Glenn for Attorney, Nancy Slaton, Jones, Lewis R. District Thomas A. Joseph Attorneys, appellee. Grace, Drolet, J. Assistant District
A89A0281.CUTTS v. FULTON-DeKALB HOSPITAL
AUTHORITY et al. Carley, Chief Judge. appellant-plaintiff, by against friend, The minor suit next filed appellee-defendants (Hospital), Hospital Authority Fulton-DeKalb Daly complaint sought damages Dr. and Dr. Russell. The al-