Walker v. State , 136 Ga. App. 857 ( 1975 )

136 Ga. App. 857 (1975) 222 S.E.2d 676

WALKER
v.
THE STATE.

51230.

Court of Appeals of Georgia.

Submitted October 8, 1975. Decided December 3, 1975.

Stephen A. Land, for appellant.

John R. Thompson, Solicitor, J. Michael Florence, Assistant Solicitor, for appellee.

PANNELL, Presiding Judge.

The trial court overruled defendant's motion to suppress evidence. He appeals pursuant to a certificate for immediate review.

Appellant argues that the affidavit in support of the search warrant did not state the time of the occurrence in question; and accordingly, the magistrate could not make a determination as to whether the information was current or stale. See Fowler v. State, 121 Ga. App. 22, 24 (172 SE2d 447).

"The use of the present tense in an affidavit to support a search warrant (``affiant has received information from a reliable informant that subject is selling drugs at the house located' etc.), in light of other recited circumstances, is sufficient to show that the facts recited are current and not stale. Johnston v. State, 227 Ga. 387, 390 (181 SE2d 42); Fowler v. State, 121 Ga. App. 22, 23 (172 SE2d 447); Lewis v. State, 126 Ga. App. 123 (2b) (190 SE2d 123); Butler v. State, 127 Ga. App. 539 (1) (194 SE2d 261)." Covington v. State, 129 Ga. App. 150 (199 SE2d 348). The present affidavit, dated November 12, 1974, states in pertinent part: "Received information from a reliable and confidential informant on the 5th day of November, 1972... states that the above named person is engaged in the operation of a lottery at the above address. Informant states that he has been present when the above named person has accepted both money and numbers for the purpose of the lottery from others. Since receiving the above information we have watched the above address with our informant and have seen persons going to the address, our informant says he knows play the lottery with Curtis Walker. The last date we watched the above was November 11, 1974." The use of the present tense "is engaged," in light of the other recited circumstances, was sufficient to show the magistrate that the information relied upon was current and not stale. See Covington v. State, supra; Lewis v. State, 126 Ga. App. 123, 128 (190 SE2d 123); Danford v. State, 133 Ga. App. 890 (212 SE2d 501).

Judgment affirmed. Quillian and Clark, JJ., concur.