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218 Ga. App. 12

460 S.E.2d 114

95 FultonCountyD.Rep. 2595

Smith v. State

Court of Appeals of Georgia

Decided July 14, 1995

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Court of Appeals of Georgia · decided 1995-07-14

Cited by 7 later decisions — most recently June 2001

7 state decisions

Relies on 201 Ga. App. 127 - Bowe v. State · 210 Ga. App. 319 - State v. Bryant · Center v. American Centennial Insurance

Good law ✅— No negative treatment on recordhow we know

Decided 1995-07-14

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Ruffin, Judge,

¶1dissenting.

¶2I do not agree that the confidential informant’s reliability was established in accordance with Collins v. State, 188 Ga. App. 172 (372 SE2d 503) (1988) because Detective Hardy had no knowledge of the informant’s credibility. In Collins, we held that “ ‘where the officer receiving the tip could not establish the credibility of the informant, probable cause was not demonstrated. [Cit.]’ ” Id. at 173. Detective Hardy relied solely on the information provided by Investigator Jenkins, the officer who received the information from the informant, and no other evidence was presented to the magistrate. Jenkins’ conclusory statement to Hardy regarding the informant’s reliability was utterly lacking in support. He failed to reveal the type of information the informant supplied in the past which allegedly led to arrests and failed to preface his assertion with any reference as to when the information was given. See id. Compare Bowe v. State, 201 Ga. App. 127, 130 (2) (410 SE2d 765) (1991). Nor was there any evidence demonstrating the likelihood that more contraband or other evidence of a crime would be found in the apartment. Moreover, Detective Hardy never corroborated the information provided by Jenkins. See State v. Bryant, 210 Ga. App. 319, 320 (436 SE2d 57) (1993).

¶3The record also demonstrates that when the officers at the scene attempted to corroborate the apartment identified by the informant, they discovered he pointed out the wrong apartment despite the informant’s claim that he was present when two marijuana purchases were allegedly made at the same location within 24 hours of Santmynes’ arrest. This detail, relevant to the question of the informant’s reliability, although subsequently corrected by the officers at the scene, was not revealed to the magistrate.

¶4The majority sets forth information which purports to demonstrate the informant’s reliability. It is not enough that that information is generally known by the officers involved in the investigation. Collinsrequires that Officer Hardy be aware of the underlying circumstances.

¶5The Fourth Amendment cannot be indexed, shelved and retrieved at whim. Rather, it is a living text which is constant and prophylactic of governmental action deemed too pervasive to be tolerated in a free society. While at times it may brook conduct which we as a people abhor, historically, that is a price which we have deemed appropriate to pay rather than risk excessive governmental intrusion *18into our private lives. The police conduct in the instant case is too egregious for a law officer and so odious to a free people that it is worthy of our orchestrated and concentrated condemnation. It is palpably dangerous to become so fixated on criminal conduct that we become blind to those ancient and cherished rights which inure to all of us as a free people.

Decided July 14, 1995.Spruell & Dubuc, Billy L. Spruell, for appellant.Lewis R. Slaton, District Attorney, Herman L. Sloan, Carl P. Greenberg, Charles T. Shean III, Assistant District Attorneys, for appellee.
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