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445 S.W.2d 441

Johnson v. Commonwealth

Court of Appeals of Kentucky

Decided October 3, 1969

Court of Appeals of Kentucky · decided 1969-10-03

Cited by 1 later decisions — most recently April 1971

1 state decisions

Applies KY 242 § 242.230

Relies on Barton v. Commonwealth · Emberton v. Commonwealth · Walker v. Commonwealth

Good law ✅— No negative treatment on recordhow we know

Decided 1969-10-03

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STEINFELD, Judge.

¶1Mary Johnson was indicted for violating KRS 242.230, trafficking in alcoholic beverages in dry territory. She was found guilty and her punishment was fixed at $100.00 fine and 30 days in jail. She moved for an appeal which was granted. We reverse.

¶2Prior to the search of her premises a magistrate issued a search warrant based upon an affidavit signed by a police officer. It stated that the affiant had “ reasonable grounds to believe, and does believe that intoxicating liquors are being sold, manufactured, disposed of or illegally possessed in a house, building or premises, owned or controlled by Mary Johnson and located in Breathitt Co. Ky. on Highway 1110 2¾0 mile West of Marcum gap road on left of road going West about a 6 room house unpainted. That he bases the foregoing affidavit and his belief and grounds for same upon the following facts and for the following reasons : a Confidential informer bought 4 cans of Budwiser Beer and paid Mary Johnson $200.00 for said Beer about 4 hours before this date.”

¶3Before the trial Mary Johnson moved to exclude any evidence acquired by virtue of the search warrant, which motion was overruled and evidence obtained through the search was admitted.

¶4The attorney general admits that the affidavit fails to comply with even the most liberal of standards. See such cases as Barton v. Commonwealth, 257 Ky. 419, 78 S.W.2d 310 (1935); Walker v. Common*442wealth, Ky., 261 S.W.2d 635 (1953) and Emberton v. Commonwealth, Ky., 269 S.W.2d 206 (1954). We agree that the affidavit was insufficient to authorize the issuance of the search warrant.

¶5The judgment is reversed.

All concur.
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