Summary
stating that "[t]he burden of proof is upon the state to show what facts constituting probable cause existed and were presented to the magistrate before the warrant was issued"
Summary of this case from State v. TaylorOpinion
53598.
SUBMITTED MARCH 1, 1977.
DECIDED APRIL 6, 1977.
Drug violation. Tattnall State Court. Before Judge Cowart.
Van Cheney, for appellant.
B. Daniel Dubberly, Solicitor, for appellee.
Defendant was convicted of violation of the Georgia Controlled Substances Act in that he was unlawfully in possession of less than one ounce of marijuana. The only issue raised on this appeal from that conviction is whether probable cause existed for the issuance of a search warrant for defendant's automobile. Held:
The burden of proof is upon the state to show what facts constituting probable cause existed and were presented to the magistrate before the warrant was issued. Bell v. State, 128 Ga. App. 426, 428 ( 196 S.E.2d 894); State v. Bradley, 138 Ga. App. 800, 802 (1) ( 227 S.E.2d 776).
The record before us does not contain the search warrant or the affidavit on which it was issued; consequently the only information contained in the record is the testimony presented at the hearing on the motion to suppress. This testimony did not contain sufficient facts to sustain the state's burden of proof.
Judgment reversed. Bell, C.J., and Smith, J., concur.