Tuten v. State

Shulman, Judge,

concurring specially.

I agree with the holding of the majority that the search warrant utilized in the instant case to search appellant’s premises was fatally flawed and that the trial court thus erred in denying appellant’s motion to suppress the evidence. The affidavit reciting the facts upon *760which the warrant was issued clearly did not affirmatively indicate that marijuana was either known or strongly suspected to be present in appellant’s trailer at the time of the search here in question. Consequently, the judgment of the trial court must be reversed. See Bush v. State, 134 Ga. App. 489 (215 SE2d 26).

The position of the dissent is without merit. The fact that the deponent police officer was unable to find appellant’s “stash” outside his trailer in no way controverts the clear import of the statements of the reliable informant that appellant left the trailer, returned with all or part of the stash, sold half of that amount and then left the trailer once more to redeposit the remaining amount of marijuana in its original hiding place. Nowhere is there any indication that the informant had reason to believe that appellant was storing any part of the stash in his trailer. The dissent’s attempt to discover “probable cause” in the facts set forth in the subject affidavit by using the line of logic that “the marijuana had to be somewhere” simply is legally insufficient to uphold the trial court’s denial of appellant’s motion to suppress.