State v. Keith , 139 Ga. App. 399 ( 1976 )

139 Ga. App. 399 (1976) 228 S.E.2d 332

THE STATE
v.
KEITH.

52238.

Court of Appeals of Georgia.

Argued June 7, 1976. Decided July 9, 1976. Rehearing Denied July 22, 1976.

Hinson McAuliffe, Solicitor, Charles Hadaway, Assistant Solicitor, for appellant.

Herbert Shafer, for appellee.

BELL, Chief Judge.

In this case, the trial court sustained the defendant's motion to suppress solely because of the refusal of the state to disclose the identity of a confidential informant whose information furnished the grounds for probable cause for the issuance of a search warrant. In sustaining the motion the trial court heard no evidence. Held:

As a general rule, the public policy of this state supports the nondisclosure of the identity of an informant on whose information a search is based. Code § 38-1102; Chancey v. Hancock, 233 Ga. 734 (213 SE2d 633). Whether, as an exception to this general rule, disclosure should be required, is a matter that rests within the sound discretion of the trial judge based on the evidence. Scull v. State, 122 Ga. App. 696 (178 SE2d 720); Estevez v. State, 130 Ga. App. 215 (202 SE2d 686). Here the trial judge heard no evidence as he was required to do under Code § 27-313 (b). The mere refusal of the state to disclose the identity of an informer standing alone does not authorize a trial judge to exercise his discretion as to whether disclosure should be required.

Judgment reversed. Clark and Stolz, JJ., concur.