Luck v. State

Carley, Judge,

concurring specially.

I concur in the judgment of the majority and all that is said therein. I write separately to particularly endorse the portion of the majority opinion which declares that the very recent Supreme Court decision of Illinois v. Gates,-U. S.-(103 SC 2317, 76 LE2d 527) (1983) “does not require a different result.” I believe that a discussion of Gates is crucial in this case because the dissent relies so heavily thereon. The reason that the majority has reached the correct result in this case is that it clearly appears that Georgia has adopted an additional, separate and independent requirement of an affirmative showing that the information of the informant is not stale. While it may be argued, in view of the more lenient approach of the United States Supreme Court as indicated by Gates, that logic dictates that the “non-stale” requirement be subsumed along with the informer’s veracity and basis of knowledge into a “totality of circumstances” approach, such a change would require overruling or substantial modification of numerous Georgia cases establishing an independent state requirement in connection with the issuance of a search warrant. As recognized in its most recent pronouncement on the subject, the Supreme Court of the United States “permit[s] a state court, even if it agrees with the State as a matter of federal law, to rest its decision on an adequate and independent state ground.” Illinois v. Gates, supra, page 6 of slip opinion.