State v. Sanders

Banke, Judge.

The state appeals from an order of the trial court sustaining the defendant’s motion to suppress evidence seized upon a search warrant.

The subject search warrant was sworn to and issued at 4:00 p.m. on March 13, 1979. The affidavit in support of the warrant recited that the law enforcement officer had received information from a reliable informant that certain illegal drugs were being used and kept by Sanders in “Room 327” of a particular Atlanta hotel. The affidavit further recited that the officer’s independent investigation revealed that Sanders was currently occupying said hotel room. While preparing to execute the warrant at approximately 4:00 a.m. on March 14, 1979, the officer discovered from the hotel clerk that Sanders was not in Room 327 as alleged, but in Room 337. Upon this *275discovery, the officer telephoned the judge who had issued the warrant. The judge instructed the officer to make and initial the room number change on the face of the warrant and proceed with the search.

“A premises description is sufficient if on its face it enables a prudent officer executing the warrant to locate the person and place definitely and with reasonable certainty.” Garner v. State, 124 Ga. App. 33, 35 (182 SE2d 902) (1971). It is clear beyond argument that the warrant should not leave the place to be searched to the discretion of the officer. And, “ [w]here the name of the owner or the occupant is not given, the description of the premises must be exact.” Garner v. State, supra, at 35. In the case before us both the affidavit and the warrant recited probable cause to believe drugs would be found on the person of the named defendant and on the premises under his possession, custody, and control, namely room 327, Tower Place Hotel. The search of room 337 of that hotel constituted a reasonable search under the warrant, without amendment, upon the discovery before its execution that the defendant was registered in room 337.

The actions of the officer in phoning the issuing magistrate and obtaining authorization to make the correction were reasonable and proper. Under identical facts, the Appellate Court of Illinois concluded that an amendment was appropriate where the officer who provided the original affidavit obtained authority to amend after a phone conversation with the magistrate who issued the original warrant. See People v. Trantham, 55 Ill. App. 3d 720 (371 NE2d 207) (1977). See also State v. Workman (249 SE2d 779) (S.C. 1978). In this case, a relatively brief interval of time elapsed between the issuance of the original warrant and the phone conversation with the magistrate. The amendment of the warrant was reasonable under the particular facts presented in this case. By no means do we imply that this opinion sanctions or encourages sloppy police work or permits subsequent completion of a search warrant by the officer after he has been placed under oath. Each case must be examined under the facts presented.

The law proscribes only unreasonable searches and seizures and prohibits the use of evidence seized as a result of lawless police activity. See Abel v. United States, 362 U. S. 217 (80 SC 683, 4 LE2d 668) (1959). In the case before us, when the police officer discovered the single digit error in the room number before the search began, he did precisely what a reasonable, prudent, and rational police officer should have done in the circumstances.

Judgment reversed.

Deen, C. J., Quillian, P. J, Shulman, Birdsong, Carley and Sognier, JJ., concur. McMurray, P. J., and Smith, J., dissent. *276Argued January 16, 1980 Decided July 14, 1980 Lewis R. Slaton, District Attorney, Joseph J. Drolet, Wallace Speed, Assistant District Attorneys, for appellant. Glenn Zell, for appellee.