Flanders v. State , 152 Ga. App. 277 ( 1979 )

Deen, Chief Judge.

1. A justice of the peace in issuing a search warrant may take into account oral testimony in addition to the contents of the supporting affidavit in determining whether probable cause for such issuance exists. Simmons v. State, 233 Ga. 429, 431 (211 SE2d 725) (1975). Here the officer signing the affidavit and another police officer gave oral testimony; on the motion to suppress, the witness (the (the issuing justice of the peace) recollected that detailed information regarding knowledge of the reliability of the informer over the past two years had been presented to him. The officers further testified on the trial that in executing the warrant they weighed the marijuana uncovered and found it to be over 1-1/2 pounds. The evidence presented to the magistrate was sufficient to authorize the issuance of the warrant and that offered to the trial was ample to support a finding of culpability of the defendant for the possession of over a pound of marijuana.

2. The justice of the peace issuing the search warrant testified that he was well aware of entitlement to a fee for denying, as well as issuing, a search warrant but that as a matter of personal preference he did not make a charge where the warrant was refused. Where the magistrate is aware that negative as well as positive action entitles him to the same fee, Code § 24-1601 providing the fees for applications for search warrants (Ga. L. 1977, pp. 196, 197), the fact that in some cases he may elect not to charge a fee will not render his action in other cases unconstitutional. The test in Connally v. Georgia, 429 U. S. 245 (97 SC 546, 50 LE2d 444) (1977), followed in State v. Robinson, 142 Ga. App. 705 (237 SE2d 1) (1977), and in Gordon v. State, 150 Ga. App. 862 (258 SE2d 664) (1979), and the constitutionality of the 1977 act upheld in Allen v. State, 240 Ga. 567 (242 SE2d 61) (1978) require only that there be no difference in remuneration contingent upon whether the magistrate grants or denies the application for the warrant.

Submitted October 2,1979 — Decided November 13, 1979. Robert M. Richardson, for appellant. Stephen Pace, Jr., District Attorney, for appellee.

Judgment affirmed.

Shulman and Carley, JJ., concur.