State v. McDonald
State v. McDonald
Opinion of the Court
Leaving out various irrelevant details, the affidavit on which this search warrant was based shows only that officers saw three men leave room 428 in a named motel, followed and stopped them, searched all three after ascertaining that one was wanted on a city bench warrant, and that one of these three (whether the "wanted” individual or another) then said he had purchased a small amount of drugs found during the search from Joe McDonald in room 428 of the motel. The only corroborative evidence offered was that Joe McDonald did in fact live in room 428. The motion to suppress was sustained and the state appeals. Held:
1. The trial court properly sustained the motion to suppress because the affidavit failed to state any current information that contraband was present in the place to be searched. There is no information as to when the drug found by the officers on the person of either the informer or his companion had been purchased. Nor are any facts stated which suggest that after the sale there remained any to be found on the premises. "Absent any statement in the affidavit as to the time of the occurrence in question, the magistrate could not make an independent determination as to whether probable cause still existed for the issuance of the search warrant.” Fowler v. State, 121 Ga. App. 22, 24 (172 SE2d 447).
2. The grant of the motion to suppress is also sustainable because the affidavit was defective in failing to allege that the informer was reliable, failing to state any facts from which his reliability could be deduced, and failing to offer any other evidence which could lead the
Under Aguilar v. Texas, 378 U. S. 108 (84 SC 1509, 12 LE2d 723), where the affidavit relies upon statements furnished by an informer, facts must be stated sufficient to raise an inference that the informer’s credibility may be relied upon, or the affiant must state other facts supporting the conclusion that probable cause for the search in fact exists. See Sams v. State, 121 Ga. App. 46 (172 SE2d 473). The "two pronged test” involves both an evaluation of the truthfulness of the source of the information and an evaluation of the factual premises furnished to support the conclusion of probable cause.
The informer here not being a reliable source, his statements must be shored up by testimony of the affiant whose oath is his badge of credibility. Code § 27-303. But the affiant knows nothing about the source of the informer’s drugs; he knows only that the informer has in fact been on the defendant’s premises, but of what passed there he is entirely ignorant.
The affidavit is thus subject to the same defect as was present in Spinelli v. United States, 393 U. S. 410. There, although the affiant alleged that the informer was reliable (a statement conspicuously absent here) he failed to state facts sufficient to support a belief on the part of the magistrate that the statement was true. "This is not to say that the tip was so insubstantial that it could not properly have counted in the magistrate’s determination. Rather, it needed some further support. When we look to the other parts of the application, however, we find nothing alleged which would permit the suspicions engendered by the informant’s report to ripen into a judgment that a crime was probably being committed. . . But just as a simple
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.