Futch v. State

¶1concurring specially.

¶2I concur in all that Presiding Judge Deen has written. I write to emphasize to the bench and bar that, in regard to search warrants, we *117must not exalt form over substance. It does no good for this court to lecture police and magistrates about the form affidavits should take in connection with applications for search warrants. As pointed out by the Supreme Court in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984), we now take “a practical, common-sense approach to the requirement of probable cause relative to the issuance of search warrants.” Id. at 182.

¶3In the present case, this rule of common sense is illustrated. As the majority recognizes, the concerned citizen accompanied the deputy sheriff when he went to the magistrate to apply for the warrant. So, the magistrate knew the citizen was not reluctant to be identified by the magistrate as the person who gave the very specific information, and the magistrate could infer from the wording of the application as it was brought to her and from common sense that the citizen simply did not want to be publicly named in the application.1 The indicia of reliability of the informer himself included the deputy sheriff’s vouching for him and stating several factors that pointed to trustworthiness.

¶4Further, the detailed description of what the informer saw added reliability. It was not vague or generalized but instead was extremely precise so less likely to have been contrived. The fact that several specific places on the premises, and marijuana in two different forms, were listed, weighed against a conclusion that the observer was mistaken about seeing marijuana. The detailed description of the premises themselves also indicated the citizen’s close familiarity with them.2 The detailing of all of these things itself “ ‘reduced the chances of a reckless or prevaricating tale, thus providing “a substantial basis for crediting the hearsay.” ’ [Cit.]” Thomas v. State, 173 Ga. App. 481, 482 (1) (326 SE2d 840) (1985). What the citizen observed, as described in the affidavit, had some earmarks of being marijuana, and the magistrate could take account of that as well, with respect to validity.

¶5The magistrate also knew that the observation had been made that day and that the deputy sheriff was anxious to obtain the warrant and conduct the search immediately, while the odds were greatest that what had been seen was still there. Also, it was already late in the afternoon.

¶6Although there was no evidence before the magistrate that the *118sheriff had independently corroborated the information that the marijuana was present, it is the totality of the circumstances which we must consider. Of course, some independent sheriff-initiated corroboration would have given additional strength and perhaps avoided the appeal and possible reversal or at least avoided delay in the finality of the case. What corroboration of the information as supplied could have been undertaken, however, is impossible for us to say, not knowing the scene or the context.

¶7The task of the court reviewing the magistrate’s action “is not to conduct a de novo determination of probable cause, but only to determine whether there is substantial evidence in the record supporting the magistrate’s decision to issue the warrant.” Massachusetts v. Upton, 466 U. S. 727 (104 SC 2085, 2086, 80 LE2d 721) (1984). In that case, instructs the Supreme Court, “deference to the decision of the magistrate to issue a warrant” is to be given. Quoting from United States v. Ventresca, 380 U. S. 102, 109 (85 SC 741, 13 LE2d 684) (1965), it reaffirms that “ ‘[although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.’ ”

¶8Although as in Massachusetts v. Upton, 104 SC at 2088, 2089, supra, “[n]o single piece of evidence ... is conclusive . . . the pieces fit neatly together . . . The informant’s story and the surrounding facts possessed an internal coherence that gave weight to the whole.” Thus, applying common sense and looking to the totality of the circumstances, it is readily apparent that this search warrant passes muster.

¶9Since probable cause was sufficiently shown to the magistrate, the application of United States v. Leon, 468 U. S._(104 SC 3405, 82 LE2d 677) (1984), is unnecessary.

¶10I am authorized to state that Judge Beasley joins in this special concurrence.