Bradford v. State ( 1987 )

Deen, Presiding Judge.

Michael Bradford brings this appeal from his conviction and first offender sentence of possession of more than an ounce of marijuana.

1. Appellant urges as error the admission into evidence of contraband which was located by several private citizens who were known as “reserve deputies” and asked by the sheriff to aid the county deputies in the search of a large area which was the curtilage of appellant’s residence. The search was carried out pursuant to a search warrant. The “reserve deputies” worked under the supervision and observation of the county deputies. They were instructed not to handle any contraband they discovered but rather only to alert the officers when it was located. Given the limitations placed upon the “reserve deputies” and the evidence presented that they complied with them, we find no violation of the provisions of OCGA § 17-5-24, which states that the search warrant “shall be directed for execution to all peace officers of this state.”

2. The trial court was not required to grant appellant’s motion to reveal the identity of the informant. Disclosure is not required where an informant acts as a mere tipster. Roden v. State, 181 Ga. App. 287, 290 (351 SE2d 713) (1986). As the evidence showed that the informant merely supplied information upon which the warrant was obtained and was not involved in nor witnessed the crime, the court correctly held the informant’s identity was privileged. Dyer v. State, 162 Ga. App. 773 (293 SE2d 42) (1982).

3. The information provided to the magistrate to support the issuance of a search warrant was sufficient under the “totality of the circumstances” analysis as set forth in State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). “ ‘The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth . . . 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.’ ” Cichetti v. State, 181 Ga. App. 272, 273 (351 SE2d 707) (1986).

The affidavit in the instant case stated that the informant saw marijuana at the defendant’s residence in the past 48 hours, and that “[t]he confidential informant is a resident of Dade County and has been for the past 15 years. And has given reliable information in the past.” The affidavit was supplemented by the sworn testimony of a deputy sheriff who provided the details of the informant’s observation: there were lights in a room where appellant was growing marijuana; marijuana was buried in a wooded area near appellant’s house, and appellant had sold marijuana. Considering the affidavit and the sworn statement together, while they are not a model of perfection for forming the basis to support the issuance of a warrant, do meet the test set forth in Cichetti v. State, supra at 273, and the issuing magistrate could have found “a substantial basis for concluding that there was a ‘fair probability that contraband or evidence of a crime [would] be found in a particular place.’ ” Using the common-sense approach under the totality of circumstances rule, it is acknowledged that this is a type of subjective finding by the court on a case by case basis. In making a judgment call here, seemingly we must “quibble as little as possible on words, and go directly to the substance.” Humphrey v. Copeland, 54 Ga. 543 (1875). There is enough substance here; therefore, the judgment should be affirmed.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Carley and Sognier, JJ., concur. Pope, Benham and Beasley, JJ., dissent.