State v. Barber

Banke, Judge.

The defendants, charged with illegal possession of marijuana, prevailed on motion to suppress. The state appeals.

The alleged contraband was seized pursuant to a search warrant which was based on the affidavit of a police detective. The trial court found the warrant faulty after it was shown that the judicial officer who issued it had not received testimony from the detective in addition to reading his affidavit. Held:

Code Ann. § 27-303 (Ga. L. 1966, pp. 567, 568) authorizes a qualified judicial officer to issue a search warrant upon the "written complaint of [a state law enforcement officer] under oath or affirmation which states facts sufficient to show probable cause...” to justify the search. Although the judicial officer may receive additional information by oral testimony (Simmons v. State, 233 Ga. 429, 431 (211 SE2d 725) (1975)), the Code does not require that he do so. All that is necessary is that the affidavit or the testimony or both provide probable cause for the search.

Submitted October 4, 1978

Decided January 23, 1979.

Charles A. Pannell, Jr., District Attorney, James E. Bethel, Assistant District Attorney, for appellant.

Little & Adams, Robert B. Adams, for appellees.

Since the hearing was terminated before presentation of evidence on the motion had been completed, the case is remanded for further proceedings consistent with the ruling of this court.

Judgment reversed and case remanded.

Been, P. J., and Smith, J., concur.