This is the third appearance of this case before us. In Watts v. State , 246 Ga. App. 367 541 SE2d 41 2000, we affirmed a Carroll County jury’s verdict finding Watts guilty of rape and incest. In so doing, this Court determined, inter alia, that the trial court did not err in denying Watts’ motion to suppress a search warrant for his hair and blood which resulted in DNA evidence against him, because 1 Watts’ motion to suppress alleged only that the warrant “omitted material facts” from the affidavit in support of the search warrant, without putting the State on notice as to what specific facts were allegedly omitted so as to permit the State to address the allegations, and 2 Watts failed to produce evidence or make an offer of proof as to allegations of material factual omissions.1 The Supreme Court of Georgia granted certiorari and reversed the decision of this Court.2 While explaining the eminently reasonable principle that a defendant does not bear the initial burden to produce evidence in support of his claims of material factual omissions in an affidavit, the Supreme Court went further and held that a defendant does not even have to plead in the written motion the material facts allegedly omitted from the affidavit. Inexplicably merging pleading requirements with evidentiary burdens, the Court concluded: “the existence of such a pleading requirement cannot be implied from the law of this state, as it would be contrary to OCGA § 17-5-30 b3 and the controlling principle that the initial burden of evidentiary production is always on the State.” Thereafter, overruling, Bowe v. State , 201 Ga. App. 127, 130 3 410 SE2d 765 1991; Ferrell v. State , 198 Ga. App. 270 401 SE2d 301 1991; State v. Mason , 181 Ga. App. 806, 812 4 353 SE2d 915 1987; Amerson v. State , 177 Ga. App. 97, 100 5 338 SE2d 528 1985; Ross v. State , 169 Ga. App. 655, 657 314 SE2d 674 1984; Nutter v. State , 162 Ga. App. 349, 350 291 SE2d 423 1982 and any other case which requires the defendant specifically to allege that information was deliberately or recklessly omitted from an affidavit and withheld from the magistrate,4 the Georgia Supreme Court held that a conclusory statement such as the one found in Watts’ motion to suppress, i.e., the affidavit contains material omissions that undermine the validity of the warrant,5 is sufficient to put the burden on the State to “show that no material information was omitted or that any such omissions were not deliberate or reckless.”6 The Court held that such burden could be met through the introduction of the affidavit and warrant.7 Since, the State failed to introduce the affidavit and warrant at the hearing on Watts’ motion to suppress, the Supreme Court determined that the trial court erred in denying such motion.
This is, to say the least, a curious result. The above conclusory statement approved by the Supreme Court does not challenge the facial validity of an affidavit and resulting warrant. Rather, the facts alleged as omitted purportedly render an affidavit improper, thereby, as the Supreme Court put it, “undermining ” the validity of an otherwise valid warrant.8 And, in such case, tendering the affidavit and warrant is insufficient, since it is not the documents, themselves, that are being challenged but the warrant’s validity in light of allegedly omitted information-information that the affidavit and resulting warrant will obviously not contain.
