*1 417 J., affirmed. 23, 1983 July 12, 1983 appellant. Jones, Cyrus C. Malone Taylor W. Fortson, for Edwards, Beerman, Warren Allie Sue Bruce H. appellees. al.
66023. STEPHENS et
Pope, This is interlocutory an of the court’s of denial The sole is the issue whether upon affidavit which the the search issuance of warrant was based can pass constitutional muster. the state has burden of showing that cause
existed and that facts establishing probable the cause were prior to the issuance of the warrant.” Reddish v. State, (288 266) (1982). 161 App. When, here, Ga. 170 SE2d as the issuance of a solely search warrant upon based the affirmations of affidavit, cause an “the facts recited in the are affidavit determinative question.” of the State, Lewis v. 126 App. Ga. 123) (1972). 127 SE2d Additionally, when, here, as also affirmation of is based upon informant, supplied information to the affiant an unnamed forth affidavit set sufficient facts from can judge independently reliability determine both This, course, information and the informant. the venerable Jackson, (1) (305 App. test. State v. 166 Ga. 417) (1983); Shaner v. 338) (1980). issue here states that the “affiant received
information from a confidential and reliable informant. . . from a second confidential and reliable informant... through third [and] only confidential and language reliable informant. ...” The affidavit bearing upon reliability is: informants “Affiant’s #1, #2, informants proven reliability by all have their affiant’s verification of through personal investigation. Informant #3’s information has led to the arrest [defendant’s reasons, latter statement ...” For obvious accomplice].
alleged is also The former statement probative has no value whatsoever. judge which the could clearly provides deficient. It There the informants. determined reliability of the which a no facts in the affidavit being based, the information informants could be *2 Jackson, supra, See State v. weight. is entitled to no those informants therein. and cases cited information, support affidavit does not
Without this satisfy thus failed to its finding cause. The state has (Reddish necessarily follows that supra) burden suppress the fruits denying erred of the search. III, Byrne, appellants. F. T. Maund for
Daniel Ansell Mallory appellee. Arthur E. for Rehearing. Motion correctly points The state out in its in support brief of its motion test,” rehearing that the “venerable as we called it, ceased be venerable on June 1983. On that date the United States abandoned the test Illinois - U. S. - (103 527) (51 4709) (1983) SC 76 LE2d USLW “totality analysis.” reaffirmed the circumstances simply 4716. The court stated: task of the issuing magistrate whether, practical, to make a common-sense decision all the given him, circumstances set forth in including the affidavit before ‘veracity’ persons hearsay and ‘basis of knowledge’ supplying information, probability there is a fair that contraband or evidence of duty a crime will in particular place. reviewing be found And the of a simply court is to ensure that the had a ‘substantial basis . . . conclud(ing)’ cause existed. We are [Cit.] flexible, convinced easily applied this standard will better public private achieve the accommodation interests that Fourth requires approach Amendment than does the that has developed Aguilar Spinelli.” and, bar,
In the applied case at we informants, we bearing on the held that “the those informants and, weight” entitled to no because without information the support cause, did not a finding reversed the denial of the motion to We now reach the same conclusion the totality of the approach. circumstances
The affidavit in support request of the search warrant consists of nineteen paragraphs, may be summarized as follows: In January, 1982 a “confidential and reliable informant” told the affiant person officer that a certain was an active drug dealer; investigation affiant’s showed that a relationship close existed between person defendant; this con- a “second fidential and reliable informant” told the affiant that defendant was an dealer; active drug a “third confidential and reliable informant” told the affiant that defendant and this other dealt in drugs together; telephone records showed that the two daily; conversed May 16, on 1982 the (by affiant learned some means) unidentified the other just had returned from Florida with marijuana in excess of two pounds; hundred on that day was seen day
the next the third confidential informant told the person “had stored a load of marijuana” ready and would be to start selling day; the next day that next and several others *3 (10) were observed following day tip received a was to make in a sale LaGrange; stopped by defendant’s home while en route to LaGrange; made the sale of pound one of marijuana in LaGrange arrested; and was nine more pounds of marijuana in automobile, were found his as well suspected as other drugs; “affiant’s informants # and # have all proven their in- by affiant’s verification of formation through personal investigation;” informant # 3’s information led to the arrest person; of the other the affiant believes there probable cause that a search of defendant’s home produce would marijuana. While being mindful that magistrate’s ‘determination of “[a] ”
probable cause should be paid great
by
deference
reviewing courts’
“
and that
warrant(s)
‘courts should not
by
invalidate...
interpret-
affidavit(s)
in
ing
hypertechnical,
a
commonsense,
rather
than a
” (51
manner,’
USLW at
quoting
Spinelli),
from
we do not find
in the facts of the affidavit here a substantial basis for concluding
that
there was a “fair probability”
that drugs were then on the
premises of defendant.
best,
See
While Court has retreated from the “two-pronged” in Illinois v. supra, it has no means Indeed, court reiterated Amendment. the Fourth emasculated with a substantial magistrate provide that “[a]n cause,” “wholly probable determining basis for The at 4716. will not suffice. conclusory statement[s]” enable the facts to contain sufficient affidavit must cause based probable independent determination make an them. drawn from inferences” facts and “reasonable those to allow to the must be “Sufficient cause; be a mere his action cannot probable that official to determine In ensure that others. order to conclusions of of the bare ratification occur, courts duty does not the magistrate’s such an abdication sufficiency of affidavits conscientiously review the must continue to Thus, which principles the same issued.” Id. warrants aré which the foundation traditionally constituted 11; n. id. at 4713-14 and 4716 in force. See determinations continue an otherwise only difference is that id. at 4713-18. The generally see failed the affidavit not be struck down because sufficient warrant will in prongs isolation. meet one of the in the affidavit at totality provided looking In them, to be drawn from issue, reasonable inferences together with the drugs were then concluding that we do not see a substantial basis were there was suspicion drugs premises. on defendant’s with his activity together suspected drug founded defendant’s so) (correctly was then believed with another who association was known that Although in engaging drug be transaction. with defendant frequent contact defendant’s associate was times, it was further was seen at defendant’s home several drugs had stored the suspected that defendant’s associate known or finding, somewhere, supports nothing there is the affidavit at defendant’s drugs were stored factually inferentially, “ prima showing, facie and not a ‘only probability, home. While ” (id. cause’ is the standard of criminal it was issue does not show that Spinelli), the affidavit at quoting home. drugs his possessed illegal defendant normally drafted “affidavits ‘are We are mindful *4 investigation’ a criminal nonlawyers in the midst and haste of once exacted specificity ‘[tjechnical requirements of elaborate ” Id. at in this area.’ proper place have no pleading under common law Nevertheless, demands of the the Fourth Amendment 4715. present in the of an affidavit enough forethought preparation detached necessary for a neutral of criminal determine that the likelihood into an the intrusion sufficiently probable to warrant by the Constitution. home, place reverently guarded individual’s We holding police, state, adhere our failed to thus carry the burden in the case bar at trial court should have suppressed the fruits of the search.
Judgment to. adhered
63989. v. DOWDY PALMOUR.
63990. McDONALD v. PALMOUR.
Birdsong,
Judge.
(
Dowdy
v.
of this
above-styled
decision
case
Palmour,
521)),
having
been reversed
Palmour,
(Dowdy
certiorari
McMurray, J., Banke, Carley, Pope, JJ., Sognier and 1983.
Decided Dowdy, Andrew A. Little, se, Victoria pro (case appellant no. 63989).
Douglas McDonald, W. (case 63990). pro se no.
Jeff C. Wayne, for appellee.
65596. WILSON Appellant Plea in Bar charge to a driving under the influence of alcohol. His Plea Bar of trial was Appellant denied. plea entered a of nolo contendere and fined. was he contends was error to deny his Plea Bar of trial.
On June appellant stopped by was a Georgia State patrolman in Vidalia, Georgia driving the influence of 28,1982 alcohol. On June posted he a cash bond at the sheriffs office in the courthouse for Toombs County received a “Fines and Forfeitures receipt.” Appellant appear failed to the July 1982 term