Pitts v. State

*51Beasley, Presiding Judge,

concurring specially.

I agree that the information upon which the magistrate determined that there was probable cause to believe that a crime had been committed and that defendant had committed it was insufficient. There was no information on the source of the affiant police officer’s knowledge as to these two factors. He merely swore what had occurred and who had committed the acts; he failed to reveal how he knew it. The latter is necessary so the magistrate can make an independent judgment as to whether the source of the information is reliable. Devier v. State, 253 Ga. 604, 610 (5) (323 SE2d 150) (1984); Cofield v. State, 247 Ga. 98, 109 (5) (274 SE2d 530) (1981). An officer’s long-time experience on a police force is not a substitute for an independent judicial examination of source.

We conclude that if the arrest was without probable cause, defendant’s inculpatory statement would have been inadmissible. This is not always so because, as applied in Dunaway v. New York, 442 U. S. 200, 216 (99 SC 2248, 60 LE2d 824) (1979), it is a separate question “whether the connection between [the] unconstitutional police conduct and the incriminating statements . . . obtained during [the] illegal detention was nevertheless sufficiently attenuated to permit the use at trial of the statement. . . .” The factors present in this case establish that defendant’s statement was an exploitation of the illegal arrest. Consequently, as recognized in Ryals v. State, 186 Ga. App. 457, 458 (2) (367 SE2d 309) (1988), even if the statement was voluntary for Fifth Amendment purposes, it is inadmissible due to Fourth Amendment concerns.

Of course, defendant need not reach out to the federal constitution for protection of the right asserted here. The Georgia Bill of Rights gives assurance that “the right of the people to be secure in their persons . . . against unreasonable seizure shall not be violated.” To secure this guarantee, it demands that “no warrant shall issue except upon probable cause supported by oath or affirmation particularly describing the . . . persons ... to be seized.” 1983 Ga. Const., Art. I, Sec. I, Par. XIII. OCGA § 17-4-41 does not address probable cause but requires a specific description of the crime, to include the answers to the questions when, where, against whom, and what. Probable cause answers a threshold question, why do you believe this occurred, that is, upon what do you base this belief? The answer to this question is what the affidavits for Pitts’ arrest lack.