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BOWMAN v. THE STATE.
A92A0883.
COOPER, Judge.
Drug violation. DeKalb Superior Court. Before Judge Castellani.
Appellant was arrested for possession of cocaine and marijuana seized during the execution of a search warrant at his residence. He was indicted on two counts of violating the Georgia Controlled Substances Act, and following the denial of his motion to suppress, appellant was found guilty of both charges at a bench trial. On appeal, appellant's sole enumeration of error is that the trial court erroneously ruled that he, and not the State, had the burden of proof on the issue of whether the search was unlawful.
Immediately prior to trial a hearing on appellant's motion to suppress was held. The trial court directed defense counsel to call his first witness, and when the attorney protested that it was the State's duty to present evidence the court stated that appellant had "to show why the search warrant is not good. You don't get up and say it is not any good and sit down. You have the burden of going forward. If. . . you have a valid search warrant, you have the obligation to show why it is not any good." After objecting to the court's ruling that the defendant had the burden of proof, defense counsel produced the warrant and affidavit and called the affiant detective for cross-examination. The warrant was dated April 12, 1990, and stated that the detective had reason to believe that "Larry, white/male approximately 5'10", 180 lbs., brown hair," who resided at a certain address in DeKalb County in a house described as beige brick and brown shingles with the number on the front and a boat parked in the carport, was suspected of having cocaine on the premises in violation of OCGA 16-13-30. The facts stated to establish probable cause were that "[w]ithin the last 72 hours of 12 March 1990, a confidential and reliable informant was inside the above location and observed cocaine being stored and sold. This informant has proven reliability over the last six (6) years by providing information to this detective that has led to the arrest of several people and the seizure of contraband drugs. Said informant has stated that some of the cocaine was stored in a boat in the carport of this residence. Affiant did a drive-by this date affirming existence of a boat in carport of said residence." The detective testified that the date of March 12 typed in the application was a typographical error and that his testimony before the magistrate was that he received the information from the informant on April 12. He further swore that he verified much of the information he got from the informant with the DeKalb County police, including that appellant lived at the address given. During execution of the warrant, cocaine and marijuana were found in the house and on the person of appellant's co-defendant, who arrived while the house was being searched.
Robert E. Wilson, District Attorney, Gregory A. Adams, Elisabeth G. MacNamara, Assistant District Attorneys, for appellee.
James B. Sullivan, for appellant.
DECIDED SEPTEMBER 8, 1992.
Thursday May 21 08:23 EDT


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