Cantrell v. State

Carley, Judge,

concurring specially.

I concur with the majority’s conclusion that the trial court did not err in denying the motion to suppress. However, I do not agree with the majority that the appeal is controlled by Kelly v. State, 184 Ga. App. 337 (361 SE2d 659) (1987). Kelly is inapplicable because in this case, the appellant’s motion to suppress adequately and properly addresses the alleged illegality of the search warrant based upon allegedly false statements contained in the affidavit. However, the motion to suppress was correctly denied because the trial court was authorized to find that there was no false statement in the affidavit. A reading of the relevant portions of the motion to suppress transcript indicates that what happened in this case was that the officer who was the affiant and another officer met with the confidential informant and arranged a “controlled buy” from appellant’s residence before the affidavit for search warrant was executed. Thus, the officer could correctly swear at the motion to suppress hearing that he was being truthful when he stated in the affidavit for search warrant that the informant “has given affiant information within the past three (3) months which has led to the seizure of marijuana in violation of the Georgia Controlled Substances Act.” Thus, the evidence supported the finding of the trial court and there was no error in denying the motion to suppress.

I am authorized to state that Judge Sognier joins in this special concurrence.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellee.