Futch v. State ( 1986 )

Deen, Presiding Judge.

The appellants, Ronald and Lisa Futch, were convicted of possessing more than one ounce of marijuana in violation of the Georgia Controlled Substances Act. On appeal they attack, inter alia, the validity of the search warrant, pursuant to which evidence was seized from their residence. Held:

1. In determining whether to issue a search warrant, “[t]he 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.” Illinois v. Gates, 462 U. S. 213, 238-239 (103 SC 2317, 76 LE2d 527) (1983); State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984).

In this case, the affidavit submitted in application for the search warrant provided that “[a] concerned citizen who is a mature person, that is regularly employed with personal connection with the suspect, and who has demonstrated a truthful demeanor makes known the following facts to this deputy. (1) that at the above stated location there is now growing app. 300 Marijuana Plants app 4in high. (2) that in the tin ulity building in a gray toolbox there is app. 2 lbs of cut Marijuana (3) that in the house trl there is app 2 lbs of cut Marijuana.” In determining whether the magistrate had a substantial basis for concluding that probable cause existed, we have only this affidavit to consider. At the hearing on the motion to suppress, the magistrate who had issued the warrant recalled that neither the affiant police officer nor the “concerned citizen” who accompanied him had related any additional information.

Even were the discarded, two-pronged Aguilar-Spinelli requirement of demonstrating an informant’s reliability and the basis of the informant’s knowledge still in effect, the affidavit in the instant case would be sufficient to support issuance of the search warrant. See Davis v. State, 129 Ga. App. 158 (198 SE2d 913) (1973), where this court approved a similar affidavit. See also Miller v. State, 155 Ga. App. 399 (270 SE2d 822) (1980). “Because the totality of the circumstances analysis under Illinois v. Gates actually is a more lenient test (supposedly a practical, common-sense approach) than the AguilarSpinelli test it logically follows that the affidavit in this case provided sufficient basis for finding probable cause.” State v. Farmer, 177 Ga. App. 18, 20 (338 SE2d 489) (1985).

2. The appellants’ remaining enumerations of error have no merit.

Judgment affirmed.

Pope and Beasley, JJ., concur. Pope and Beasley, JJ., also concur specially.