146 Ga. App. 418 | Ga. Ct. App. | 1978
The defendant was charged with two counts of unlawful possession of heroin and cocaine with intent to distribute. A motion to suppress was filed by counsel. A hearing was held in which the trial judge granted defendant’s motion to suppress. The state appeals. Held:
A warrant was issued to search a hotel room in Fulton County. The warrant is dated "7 day of Aug 1977.” The entry "7 Aug 1977” is in two separate places. In the affidavit, the affiant stated that he received the information on "9-7-77.” The return of the warrant was made on September 16, 1977. The issuing judge was unable to swear positively on what date he signed the warrant. Office personnel kept a docket on issuance of warrants but no date of issuance was placed beside the warrant bearing this number.
All warrants must be executed within ten days. Code Ann. § 27-306 (Ga. L. 1966, pp. 567, 569). The hearing judge found as a fact "That the Search Warrant was not executed within the specified time from the date of issuance and that the Search Warrant was illegally executed.”
The Supreme Court has held that "[o]n motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.” State v. Swift, 232 Ga. 535,
We do not find the trial judge’s findings to be clearly erroneous and there is evidence to support his decision. Thus, we are without authority to disturb it. Orkin v. State, 236 Ga. 176, 189 (223 SE2d 61).
Judgment affirmed.
