Page v. State

Court of Appeals of Georgia

Page v. State

222 S.E.2d 661, 136 Ga. App. 807, 1975 Ga. App. LEXIS 1493

CourtCourt of Appeals of Georgia

DecidedDecember 1, 1975

Docket51490

StatusPublished

Cited by4 cases

This text of 222 S.E.2d 661 (Page v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Page v. State, 222 S.E.2d 661, 136 Ga. App. 807, 1975 Ga. App. LEXIS 1493 (Ga. Ct. App. 1975).

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Opinions

Stolz, Judge.

Appellant, who was charged with the offense of possessing beer for resale without a valid license, appeals the denial of his motion to suppress evidence seized during a search of his store. Held:

It is incumbent upon a magistrate to make an independent determination of probable cause before he issues a search warrant. InReid v. State, 129 Ga. App. 660 (200 SE2d 456), we held that an affidavit, sufficient both as to form and content, could not support a search warrant where the issuing magistrate testified that he had not made any decision from reading the sheriffs affidavit but had signed the warrant after ascertaining that the sheriff was sworn and his affidavit was signed. In the case before us, the issuing justice of the peace stated in an affidavit that "[i]n cases ... involving State Revenue Officers, it is my procedure to check the technical correctness of the warrant, read the warrant thoroughly, however, in cases ... such as these ... I leave the determination of probable cause to the determination of the agent involved.” (T. 52) This particular magistrate testified that he was concerned mainly that the affidavit and warrant were technically correct, i.e., not stale (T. 19), but when dealing with affidavits by experienced revenue agents, he did not "go into the nitty gritty of them.” (T. 20) Although the magistrate’s testimony is, at times, unclear, the thrust of his statements, taken as a whole, is that his concern was that the affidavits and warrants were facially correct; he made no independent evaluation of the information contained therein.

Probable cause to support a warrant must be determined by a neutral magistrate before the warrant is issued, not by a reviewing court’s retrospective evaluation of the evidence. The testimony given by the issuing justice of the peace demonstrates that no such [808]*808determination was made. This is no mere technical irregularity but rather a fatal defect in the warrant thus issued. Reid v. State, supra, and cits. Hence, it was error to deny the defendant’s motion to suppress the evidence.

Argued October 30, 1975 Decided December 1, 1975. Elliott R. Baker, for appellant. Richard S. Gault, Solicitor, for appellee.

The remaining enumerations of error are without merit.

Judgment reversed.

Deen, P. J., concurs. Evans, J., concurs specially.

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Stolz, Judge.

Appellant, who was charged with the offense of possessing beer for resale without a valid license, appeals the denial of his motion to suppress evidence seized during a search of his store. Held:

It is incumbent upon a magistrate to make an independent determination of probable cause before he issues a search warrant. InReid v. State, 129 Ga. App. 660 (200 SE2d 456), we held that an affidavit, sufficient both as to form and content, could not support a search warrant where the issuing magistrate testified that he had not made any decision from reading the sheriffs affidavit but had signed the warrant after ascertaining that the sheriff was sworn and his affidavit was signed. In the case before us, the issuing justice of the peace stated in an affidavit that "[i]n cases ... involving State Revenue Officers, it is my procedure to check the technical correctness of the warrant, read the warrant thoroughly, however, in cases ... such as these ... I leave the determination of probable cause to the determination of the agent involved.” (T. 52) This particular magistrate testified that he was concerned mainly that the affidavit and warrant were technically correct, i.e., not stale (T. 19), but when dealing with affidavits by experienced revenue agents, he did not "go into the nitty gritty of them.” (T. 20) Although the magistrate’s testimony is, at times, unclear, the thrust of his statements, taken as a whole, is that his concern was that the affidavits and warrants were facially correct; he made no independent evaluation of the information contained therein.

Probable cause to support a warrant must be determined by a neutral magistrate before the warrant is issued, not by a reviewing court’s retrospective evaluation of the evidence. The testimony given by the issuing justice of the peace demonstrates that no such [808]*808determination was made. This is no mere technical irregularity but rather a fatal defect in the warrant thus issued. Reid v. State, supra, and cits. Hence, it was error to deny the defendant’s motion to suppress the evidence.

Argued October 30, 1975 Decided December 1, 1975. Elliott R. Baker, for appellant. Richard S. Gault, Solicitor, for appellee.

The remaining enumerations of error are without merit.

Judgment reversed.

Deen, P. J., concurs. Evans, J., concurs specially.

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222 S.E.2d 661, 136 Ga. App. 807, 1975 Ga. App. LEXIS 1493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/page-v-state-gactapp-1975.

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