McFadden, Presiding Judge.Tad David Wingate appeals his convictions of possession of more than an ounce of marijuana, manufacture of marijuana, possession of methamphetamine, and possession of the controlled substance carisoprodol. He argues that the trial court erred by denying his motion to suppress evidence obtained in two searches because law enforcement officers illegally entered the curtilage of the first searched residence without a warrant and because the warrants they eventually obtained were not supported by probable cause. As a preliminary matter, we reject the state’s argument that Wingate waived the search warrant issue by failing to raise it in the trial court. As for the merits, we agree with Wingate that the search warrants were not supported by probable cause. So we reverse. We do not reach Wingate’s argument that law enforcement officers improperly entered the curtilage of the property.1. Waiver.We reject the state’s argument that Wingate waived his challenge to the sufficiency of the search warrant applications because he did not raise the issue in his motion to suppress. The appellate record shows that at the end of the March 24, 2015, hearing on the motion to suppress, the trial court stated that it would allow Wingate to submit a brief with his argument and would allow the state to respond. About two weeks later, Wingate submitted his brief raising the search warrant argument and citing State v. Kazmierczak, 331 Ga. App. 817 (771 SE2d 473) (2015), the March 30, 2015, opinion upon which Wingate bases his argument to this court. So Wingate did not waive the argument for appellate review. Cf. Stanley v. State, 206 Ga. App. 125 (1) (424 SE2d 90) (1992) (issue raised in a brief filed with motion to suppress could be considered as part of the motion).2. Sufficiency of the affidavits supporting the search warrants. Wingate’s prosecution arose from the execution of search warrants at two locations, one on Long Branch Road and the other on Miller McElreath Road. He argues that the affidavit supporting the issuance of the search warrant for the Long Branch Road location did not establish probable cause, and without the evidence obtained during the execution of that warrant, the warrant for the Miller McElreath Road property is not supported by probable cause. We agree.When determining whether to issue a search warrant, the magistrate simply mustmake a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.
