State v. Luck

312 S.E.2d 791, 252 Ga. 347, 1984 Ga. LEXIS 672

• Court: Supreme Court of Georgia
• Decided: March 7, 1984
• Docket: 40530
• Status: Published

Opinions

Weltner, Justice.

Certiorari was granted to determine whether the “totality of the circumstances” analysis of Illinois v. Gates,-U. S.-(103 SC 2317, 76 LE2d 527) (1983), should be employed in resolving the question of whether information furnished in an affidavit submitted in support of a request for a search warrant is “stale.”

The trial court overruled the motion to suppress, concluding that the clear implication of the factual recitations of the affidavit was that the informants’ last drug purchase at the identified premises was quite recent. The Court of Appeals reversed, holding that such an inference can be “no substitute for an affirmative showing of a definite time period.” Luck v. State, 168 Ga. App. 464 (309 SE2d 621) (1983).

Of importance to the issue is the recital in the affidavit that the informants identified to the officers the residence of defendant Luck as the place where four previous purchases of marijuana and LSD were made.

Time is assuredly an element of the concept of probable cause. Johnston v. State, 227 Ga. 387, 390 (181 SE2d 42) (1971). However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. 227 Ga. at 390.

When the affidavit indicates the existence of an ongoing scheme to sell drugs, the passage of time becomes less significant than would be the case with a single, isolated transaction. Tabb v. State, 250 Ga. 317, 323 (297 SE2d 227) (1982).

Decided March 7, 1984 — Rehearing denied March 28, 1984. Rafe Banks III, District Attorney, for appellant. Jane Kent Plaginos, for appellees. Joseph L. Chambers, Elliott A. Shoenthal, amicus curiae.

“The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for... concluding]’ that probable cause existed.” Gates, 103 SC at 2332, quoted with approval in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984) (ellipses and brackets in text).

The totality of the circumstances — including the circumstance that the informants had completed several drug sales at the residence over a period of time — indicated the existence of reasonable probability that the conditions referred to in the affidavit would continue to pertain at the time of issuance of the search warrant.

We reiterate here the caveat we raised in Stephens, supra, relative to the importance of the submission, by affidavit, to the issuing magistrate of the maximum quantum of reliable information within the knowledge of the affiant, and the demonstration of the reliability thereof — including indicia of timeliness.

Judgment reversed.

All the Justices concur, except Smith, J., who dissents.