Roth v. State

Court of Appeals of Georgia

Roth v. State

297 S.E.2d 107, 164 Ga. App. 347, 1982 Ga. App. LEXIS 3300

CourtCourt of Appeals of Georgia

DecidedNovember 9, 1982

Docket64460

StatusPublished

Cited by2 cases

This text of 297 S.E.2d 107 (Roth 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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Roth v. State, 297 S.E.2d 107, 164 Ga. App. 347, 1982 Ga. App. LEXIS 3300 (Ga. Ct. App. 1982).

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Shulman, Presiding Judge.

A jury convicted appellant of possession of methaqualone and less than one ounce of marijuana. He now appeals, contending that the trial court erred in denying his motion to suppress the evidence discovered by police officers while executing a search warrant at appellant’s home. We disagree with appellant’s assertion and affirm his conviction.

According to the affidavit filed in support of the issuance of a search warrant, an undercover police officer accompanied Randy Love and Cheryl Bratlie to appellant’s home in order to purchase methaqualone (quaaludes). While the officer and Love waited in the car, Bratlie went inside the residence and returned to the car with a plastic bag containing quaaludes. After the undercover officer gave her money, Bratlie reentered the dwelling and returned to the car. Upon Bratlie’s subsequent arrest, she told the undercover officer she had obtained the contraband from “Terry” and proceeded to describe him. The search warrant was issued that evening and the search conducted pursuant thereto uncovered the marijuana and quaaludes.

In his sole enumeration of error, appellant maintains that the police officer’s affidavit filed in support of the issuance of the search warrant was fatally defective because it did not establish the reliability of Cheryl Bratlie. See Cain v. State, 128 Ga. App. 146 (195 SE2d 797). However, appellant’s assertion, even if correct, is immaterial because the affidavit, without Bratlie’s statement, is sufficient to establish probable cause and justify issuance of the search warrant. Application of this “independent source” test was adopted by this court in Rothfuss v. State, 160 Ga. App. 863, 864 (288 SE2d 579), and we apply it here. Inasmuch as “the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant, apart from the [allegedly] tainted [348]*348information, the evidence seized pursuant to the warrant is admissible.” Id.

Decided November 9, 1982. Jeffrey R. Sliz, James L. Kraemer, for appellant. Bryant Huff, District Attorney, Johnny R. Moore, Stephen E. Franzen, Assistant District Attorneys, for appellee.

Judgment affirmed.

Quillian, C. J., concurs. Carley, J., concurs specially.

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Shulman, Presiding Judge.

A jury convicted appellant of possession of methaqualone and less than one ounce of marijuana. He now appeals, contending that the trial court erred in denying his motion to suppress the evidence discovered by police officers while executing a search warrant at appellant’s home. We disagree with appellant’s assertion and affirm his conviction.

According to the affidavit filed in support of the issuance of a search warrant, an undercover police officer accompanied Randy Love and Cheryl Bratlie to appellant’s home in order to purchase methaqualone (quaaludes). While the officer and Love waited in the car, Bratlie went inside the residence and returned to the car with a plastic bag containing quaaludes. After the undercover officer gave her money, Bratlie reentered the dwelling and returned to the car. Upon Bratlie’s subsequent arrest, she told the undercover officer she had obtained the contraband from “Terry” and proceeded to describe him. The search warrant was issued that evening and the search conducted pursuant thereto uncovered the marijuana and quaaludes.

In his sole enumeration of error, appellant maintains that the police officer’s affidavit filed in support of the issuance of the search warrant was fatally defective because it did not establish the reliability of Cheryl Bratlie. See Cain v. State, 128 Ga. App. 146 (195 SE2d 797). However, appellant’s assertion, even if correct, is immaterial because the affidavit, without Bratlie’s statement, is sufficient to establish probable cause and justify issuance of the search warrant. Application of this “independent source” test was adopted by this court in Rothfuss v. State, 160 Ga. App. 863, 864 (288 SE2d 579), and we apply it here. Inasmuch as “the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant, apart from the [allegedly] tainted [348]*348information, the evidence seized pursuant to the warrant is admissible.” Id.

Decided November 9, 1982. Jeffrey R. Sliz, James L. Kraemer, for appellant. Bryant Huff, District Attorney, Johnny R. Moore, Stephen E. Franzen, Assistant District Attorneys, for appellee.

Judgment affirmed.

Quillian, C. J., concurs. Carley, J., concurs specially.

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297 S.E.2d 107, 164 Ga. App. 347, 1982 Ga. App. LEXIS 3300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roth-v-state-gactapp-1982.

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