Wells v. State , 180 Ga. App. 133 ( 1986 )

Benham, Judge.

This appeal is from appellant’s conviction of possession of marijuana with intent to distribute and possession of cocaine.

1. Relying on Franks v. Delaware, 438 U. S. 154 (98 SC 2674, 57 LE2d 667) (1978), appellant asserts that there was a false statement knowingly and intentionally, or with reckless disregard for the truth, included in the affidavit supporting the application for the search warrant pursuant to which the contraband involved in this case was seized. Franks provides that if the defendant makes a substantial showing of intentional falsity, the trial court must conduct a hearing on the issue. If, at that hearing, the allegations of falsity are established by a preponderance of the evidence, and if the affidavit is not sufficient without the false statement, the warrant is void. See Cuevas v. State, 151 Ga. App. 605 (E) (260 SE2d 737) (1979). That is not the required result in the present case. All that was shown at the hearing on appellant’s motion to suppress was that the affiant mistakenly substituted the name of the victim of a burglary for the name of the burglar in the portion of the affidavit showing the reliability of a confidential informant. The officer freely admitted the mistake, ascribing it to confusion arising from a change in filing systems, and the trial court was authorized to find that there had been no intentional and knowing falsehood or reckless disregard for the truth. We also agree with the trial court that the substance of the statement, that the informant had previously given information leading to the arrest and conviction of a burglar, was true. We find no error in the trial court’s ruling on that issue. Appellant failed to make the “substantial preliminary showing” required by Franks.

2. In addition to relying on the federal constitutional standard established in Franks, appellant argues that Cuevas is too harsh and should be re-examined in the context of the traditionally broader protection provided in this state. In that argument, appellant asserts that Ga. Const. 1983, Art. I, Sec. I, Par. XIII, should be construed so as to place the burden on the State rather than on the defendant.

When first considering this case, we concluded that the resolution of that issue required construction of that constitutional provision and that this case should be transferred to the Supreme Court. See Pope v. City of Atlanta, 240 Ga. 177 (1) (240 SE2d 241) (1977). The Supreme Court, however, returned the case to this court by means of an order stating that it had held in State v. Stephens, 252 Ga. 181 (311 SE2d 823) (1984), that Ga. Const. 1983, Art. I, Sec. I, Par. XIII, requires application of the “totality of the circumstances” test which is the standard to be applied to questions arising under the Fourth Amendment to the United States Constitution. Since the standard to be applied is the same, it is apparent that the protection against unreasonable searches provided in the Georgia Constitution is the same as that provided by the United States Constitution. That being so, Cuevas, which addressed only the federal issue, is equally applicable in the context of the Georgia Constitution. Accordingly, the holding is the same.

3. Appellant’s challenge to the sufficiency of the affidavit in support of the application for a search warrant is equally without merit. The affidavit related that the affiant was told by an informant whose information had previously led to an arrest in a drug case and an arrest and conviction in a burglary case that the informant had personally observed marijuana and cocaine in appellant’s possession within the past 36 hours. That information was sufficient, under the totality of the circumstances, to show probable cause to believe that appellant was in possession of contraband and to support issuance of a search warrant. Choice v. State, 168 Ga. App. 28 (2) (308 SE2d 1) (1983).

4. At trial, appellant’s attorney attempted to cross-examine the arresting officer concerning the disposition of the drug-related arrest mentioned in the affidavit in support of the application for a search warrant. Appellant enumerates as error the trial court’s ruling that the disposition of that case was not relevant to the issues before the court. Without citation of authority, appellant argues that he should have been permitted to test the credibility of the informant because the arresting officer testified that the informant made a purchase of marijuana at appellant’s residence within 36 hours before issuance of the search warrant.

We agree with the trial court that the evidence appellant sought to elicit was irrelevant. The informant did not testify at trial and the arresting officer did not relate any conversations with the informant. Therefore, as to the controlled purchase allegedly made at appellant’s residence, the informant’s credibility was not at issue. There is no error in the exclusion of evidence not relevant to any issue at trial. Strickland v. State, 247 Ga. 219 (11) (275 SE2d 29) (1981).

5. Appellant’s final enumeration relates to the trial court’s failure to charge the jury that a conviction based on circumstantial evidence alone is not warranted unless the proven facts exclude every hypothesis other than the guilt of the accused. That charge is not required, even if requested, unless the State’s evidence is entirely circumstantial. Griffith v. State, 172 Ga. App. 255 (2) (322 SE2d 921) (1984). Here, a police officer testified that he saw appellant in actual possession of cocaine, and there was other direct evidence of his possession of marijuana, including his admission that he owned the garment in which some marijuana was found. Thus, there was no error in the trial court’s refusal to give the charge.

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs specially.