Eccles v. State , 135 Ga. App. 760 ( 1975 )

Webb, Judge.

This is an appeal via certificate for immediate review from an order overruling a motion to suppress evidence. Pursuant to a search warrant certain property was seized from Warren Eccles and Debra Hatling at 8310 White Bluff Road in Savannah. The warrant to search the premises was issued upon an affidavit of Investigator Charles J. Bazemore, assigned to the Drug/Vice Unit of the Savannah Police Department. The affidavit stated that an informant had related that Eccles and another "had transferred a quantity of marijuana” to the house on White Bluff Road.

Submitted September 15, 1975 Decided September 19, 1975. Smith & Portman,- Alexander L. Zipperer, III, for appellants. Andrew J. Ryan, Jr., District Attorney, Howard A. McGlasson, Jr., for appellee.

The brief of evidence adduced at the hearing on the motion to suppress recites: "All of the information upon which Detective Bazemore relied for probable cause to obtain the search warrant was contained in the written affidavits, and no other oral information was provided to the Judge. The Detective further testified that no one had ever reported to him that they had seen drugs in defendant Eccles’ house at 8310 White Bluff Road.” (Emphasis supplied.) Held:

Because of that sworn testimony, we are compelled to disregard the assertion in the affidavit that the informant "stated that Mitchell Feldman and [Eccles] had transferred a quantity of marijuana” to the house searched, and hold that the motion to suppress should have been granted. The detective’s testimony showed he had no reliable information that drugs were present in the house. Maxwell v. State, 127 Ga. App. 168 (193 SE2d 14); Overstreet v. State, 133 Ga. App. 497, 498 (2) (211 SE2d 436).

Judgment reversed.

Bell, C. J., and Marshall, J., concur.