Opinion
45466.
ARGUED JULY 10, 1970.
DECIDED SEPTEMBER 8, 1970.
Possessing marijuana. Fulton Superior Court. Before Judge Wofford.
Albert M. Horn, for appellant.
Lewis R. Slaton, District Attorney, Carter Goode, J. Roger Thompson, Tony H. Hight, for appellee.
When a warrant states a name for the person to be searched, and the person to be searched is using that name as an alias, then he has been described with sufficient particularity to satisfy the statutory and constitutional requirement.
ARGUED JULY 10, 1970 — DECIDED SEPTEMBER 8, 1970.
Defendant appeals from his conviction for possessing marijuana and from the denial of his motion for a new trial on the ground that evidence illegally seized under an invalid search warrant had been improperly admitted against him.
About February 10, 1969, Agent Joseph of the Federal Bureau of Narcotics and Detectives Price and Wood of the Atlanta Police Narcotics Squad were separately called by an informer (with whom they had dealt in the past) and told that two men, Steve and Jeff Leib, were going to California that night to pick up narcotics. Agent Joseph verified that two people using those names had purchased airline tickets for Los Angeles for February 11. He called another agent of his Bureau in Los Angeles for assistance. About noon on February 14, this other agent called Joseph to advise him that two persons using the names of Steve and Jeff Leib had boarded a plane bound for Atlanta. He described the individuals and relayed the flight number and its scheduled arrival time of 3:27 p. m. About 1 p. m., Joseph conveyed this information to Detectives Price and Wood (who, in the meantime, had heard from their informer that these two were due back that day).
Joseph and some GBI officers went to the airport. Price and Wood went for a search warrant. The warrant was issued at 3 p. m. and the detectives immediately rushed to the airport. Two people leaving the designated flight fit the descriptions received from Los Angeles and were placed under surveillance. One of them went to the parking lot. Defendant was apprehended in the baggage claim area after he had picked up all the suitcases. The warrant was executed and defendant and the baggage were taken to an office to be searched. His own suitcase contained marijuana.
1. Defendant contends there was lack of probable cause for the issuance of the warrant because the affidavit did not recite a sufficient basis for crediting the information, and because the warrant did not give defendant's correct name or any description of him, thereby failing to particularly describe the person to be searched as required by statute and the Constitution.
The affidavit accompanying the warrant reads: "We received information from a reliable and confidential informer whose information has proved reliable in the past in that the informer has furnished us with information in which we have made six (6) arrests for narcotics and dangerous drugs and also the informer has aided in the undercover buy of LSD and other dangerous drugs. The informer stated to use that the received information on the night of February 10, 1969, that the above subject alone [sic] with his brother Jeff Leib was going to Los Angeles, California to buy narcotics and dangerous drugs. The informer also stated that he has seen narcotics and dangerous drugs in the possession of Steve and Jeff Leib [sic] during the week of February 3, 1969. We received information that the above subjects did get on an airplane to go to Los Angeles, California, on the day of February 12, 1969. We received information that the above subjects were arriving on Delta Flight 14 scheduled to arrive at 3:27 p. m. on February 14, 1969 with narcotics."
The reason given for the informer's reliability is sufficient. Sams v. State, 121 Ga. App. 46 ( 172 S.E.2d 473). While the affidavit does not state how the informer obtained the information, the tip does describe the criminal activity in such detail (detail which is corroborated and further elaborated by independent investigation of police officers) that the issuing magistrate could have known it was "more than a casual rumor" or an "accusation based merely on an individual's general reputation." Sams v. State, supra; Johnson v. State, 121 Ga. App. 477 ( 174 S.E.2d 246); Spinelli v. United States, 393 U.S. 410 ( 89 SC 584, 21 L.Ed.2d 637).
There is no question the warrant did not give defendant's real name. It did, however, give the name under which defendant was admittedly traveling. If defendant chooses to use an alias, he cannot complain of being officially known by that name. A "John Doe" warrant with no physical description would, of course, be void as a general warrant, but a "Steve Leib" warrant does particularly describe the person to be searched where that person is using the name Steve Leib. A physical description is no more necessary in this instance than it would be where the warrant gives the "real" name. See People v. McLean, 56 Cal.2d 660 ( 365 P.2d 403, 16 Cal.Rptr. 347).
2. Defendant's contention that venue was not proved is without merit. In addition to Agent Joseph's testimony, defendant stipulated that he was apprehended in Fulton County at the suppression hearing. The crime for which he was indicted and convicted is possession of marijuana. The "possessing" was simultaneous with his apprehension. The jury was authorized to find that the crime was committed in Fulton County.
3. Defendant's attack on the constitutionality of the Georgia Uniform Narcotics Act was raised too late ( Thrall v. State, 226 Ga. 308 ( 174 S.E.2d 925)), and in any event, is not property before this court.
Judgment affirmed. Deen and Evans, JJ., concur.