Page v. State , 136 Ga. App. 807 ( 1975 )

Stolz, Judge.

Appellant, who was charged with the offense of possessing beer for resale without a valid license, appeals the denial of his motion to suppress evidence seized during a search of his store. Held:

It is incumbent upon a magistrate to make an independent determination of probable cause before he issues a search warrant. InReid v. State, 129 Ga. App. 660 (200 SE2d 456), we held that an affidavit, sufficient both as to form and content, could not support a search warrant where the issuing magistrate testified that he had not made any decision from reading the sheriffs affidavit but had signed the warrant after ascertaining that the sheriff was sworn and his affidavit was signed. In the case before us, the issuing justice of the peace stated in an affidavit that "[i]n cases ... involving State Revenue Officers, it is my procedure to check the technical correctness of the warrant, read the warrant thoroughly, however, in cases ... such as these ... I leave the determination of probable cause to the determination of the agent involved.” (T. 52) This particular magistrate testified that he was concerned mainly that the affidavit and warrant were technically correct, i.e., not stale (T. 19), but when dealing with affidavits by experienced revenue agents, he did not "go into the nitty gritty of them.” (T. 20) Although the magistrate’s testimony is, at times, unclear, the thrust of his statements, taken as a whole, is that his concern was that the affidavits and warrants were facially correct; he made no independent evaluation of the information contained therein.

Probable cause to support a warrant must be determined by a neutral magistrate before the warrant is issued, not by a reviewing court’s retrospective evaluation of the evidence. The testimony given by the issuing justice of the peace demonstrates that no such determination was made. This is no mere technical irregularity but rather a fatal defect in the warrant thus issued. Reid v. State, supra, and cits. Hence, it was error to deny the defendant’s motion to suppress the evidence.

Argued October 30, 1975 Decided December 1, 1975. Elliott R. Baker, for appellant. Richard S. Gault, Solicitor, for appellee.

The remaining enumerations of error are without merit.

Judgment reversed.

Deen, P. J., concurs. Evans, J., concurs specially.