Amica v. the State.
| Decision Date | 26 April 2011 |
| Docket Number | No. A10A1340.,A10A1340. |
| Parties | AMICAv.The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Bernadette C. Crucilla, Macon, for appellant.Howard Z. Simms, District Attorney, Neil A. Halvorson, Assistant District Attorney, for appellee.DOYLE, Judge.
Following a jury trial, William C. Amica was convicted of possession of marijuana with intent to distribute.1 He appeals following the denial of his motion for new trial, arguing that the trial court erred by (1) denying his motion to suppress the search warrant, which was issued without probable cause; (2) admitting his statements to the police; and (3) admitting a similar transaction. Amica also contends that he received ineffective assistance of counsel. We affirm, for reasons that follow.
Viewed in favor of the verdict,2 the evidence shows that the Warner Robins Police Department investigated a May 22, 2006 burglary of a Lolo's convenience store and a May 4, 2006 armed robbery of Jitendra Patel. In January 2007, Detective Brad Mules was contacted by Eric Adams, an inmate at the county jail. Adams told Mules that both he and Amica committed the Lolo's burglary and the armed robbery of Patel and that Amica was surveilling the owner of the Lolo's in order to rob him.3 On January 18, 2007, Detective Mules obtained a search warrant for Amica's house, where the police recovered a shoe box containing seven plastic bags of marijuana, a digital scale, a nine millimeter magazine with six rounds of ammunition, a pair of brown work boots, and a black sweatshirt, among other items. Amica was later apprehended and taken into custody for questioning.
Prior to trial, Amica moved to suppress the evidence obtained during the search of his house, arguing that the search warrant was stale.4 The trial court denied the motion. Following his conviction, Amica filed a motion for new trial, raising, inter alia, several arguments with regard to the search warrant. The trial court denied the motion, and this appeal followed.
1. Search warrant. Based on the information obtained from Adams, the jail informant, Detective Mules drafted a search warrant affidavit and presented it to the magistrate judge for her consideration. The affidavit listed the address of Amica's residence and stated that the following articles were likely to be recovered therefrom: a 9–millimeter pistol, receipts or documents linked to Lolo's, “dark colored clothing, blue Dickie pants, low-cut Timberland boots, and cash.” The affidavit indicated Adams told Mules that Amica “wore the same dark colored sweatshirt [and] blue Dickie pants ... and had his Luger 9[-millimeter] pistol for both the armed robbery and the burglary.” The affidavit also contained Mules's handwritten notes indicating that
Adams has stated ... Amica has surveillanced [sic] the owner of Lo–Lo's within the last six weeks[,] prior to Adams'[s] arrest, and Amica is planning to commit an [a]rmed [r]obbery on the [b]usiness owner's home.... Prior to Adams'[s] arrest four weeks ago, Adams claims Amica's clothing and weapon are known to be kept in his residence.
Amica makes several arguments regarding the search warrant, affidavit, and inventory. In reviewing his arguments, we are mindful of the following principles reiterated by the Supreme Court of Georgia:
A search warrant will only issue upon facts sufficient to show probable cause that a crime is being committed or has been committed. The magistrate's task in determining if probable cause exists to issue a search warrant is simply to make a practical, common-sense 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. The trial court may then examine the issue as a first level of review, guided by the Fourth Amendment's strong preference for searches conducted pursuant to a warrant, and the principle that substantial deference must be accorded a magistrate's decision to issue a search warrant based on a finding of probable cause. A deferential standard of review is appropriate to further the Fourth Amendment's strong preference for searches conducted pursuant to a warrant. Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.5
On appeal, we
determine if the magistrate had a “substantial basis” for concluding that probable cause existed to issue the search warrant, ... apply[ing] the well-established principles that the trial court's findings as to disputed facts will be upheld unless clearly erroneous and the trial court's application of law to undisputed facts is subject to de novo review [and] keeping in mind that a magistrate's decision to issue a search warrant based on a finding of probable cause is entitled to substantial deference by a reviewing court. 6
(a) Amica argues that the search warrant was not supported by probable cause because the nine-month lapse from the crimes' occurrences in May 2006 rendered stale the information contained in the February 2007 affidavit given in support of the warrant.
“While a magistrate must consider time as an element of probable cause when issuing a warrant, the mere passage of time does not equate with staleness.” 7
The proper procedure for determining if the information relied upon in obtaining a search warrant is stale is to view the totality of the circumstances for indications of the existence of reasonable probability that the conditions referred to in the sworn testimony would continue to exist at the time of the issuance of the search warrant.8
Here, the clothing and boots sought in the search warrant were “non-perishable, non-consumable items which were legally possessed and of continuing utility to defendant.” 9 They were personal possessions, sought at Amica's residence. The weapon and receipts were not perishable.10 Reviewing the affidavit in its entirety and giving due deference to the magistrate's finding of probable cause, we cannot say that the information in the affidavit was so remote that it made it unlikely that Amica's clothing and other items sought in the warrant would not be in his home at the time the warrant was issued.11 Thus, the trial court did not err by denying Amica's motion to suppress on this basis.
(b) Amica also argues that the search warrant was not supported by probable cause because Detective Mules improperly failed to disclose certain information to the magistrate. Specifically, Amica contends that the detective omitted the fact that Patel identified his assailants as white and that Amica is black,12 and that the detective failed to tell the magistrate that the State agreed not to prosecute Adams in exchange for his testimony against Amica. Because Amica did not assert these arguments in his motion to suppress, he has waived them.13 Notwithstanding his waiver, however, this argument is unavailing.
It is well settled that
an affidavit is presumed valid in the absence of evidence that it contained deliberate falsehoods, was made with reckless disregard for the truth, or that the affiant consciously omitted material facts that, if included, would have indicated the absence of probable cause.14
[I]f a court determines that an affidavit contains material false representations or omissions, the false statements must be deleted, the omitted truthful material must be included, and the affidavit must be reexamined to determine whether probable cause exists to issue a warrant. 15
Here, the record contains no evidence that the affidavit contained deliberate falsehoods, that Mules made it with reckless disregard for the truth, or that he consciously omitted material information, which, if it had been included in the affidavit, would have been indicative of the absence of probable cause. Nevertheless, Mules clearly should have advised the magistrate that Patel believed that one of the men who robbed him was “possibly white” 16 and that the State declined to prosecute Adams in exchange for his testimony. Even if the omitted information was included in the presentation to the magistrate, however, there is still sufficient information to find probable cause for issuance of the search warrant.17 Thus, we conclude that Detective Mules's omissions did not invalidate the search warrant.
(c) Relying on Battle v. State,18 Amica contends that the search warrant was facially void because the police failed to leave a copy of the warrant and the affidavit at Amica's residence, and the warrant failed to describe the place to be searched with particularity. Amica did not raise these arguments in his motion to suppress or at trial, and therefore, he has waived them.19 Notwithstanding his waiver, his arguments are without merit.
Both the Fourth Amendment to the United States Constitution and Art. I, Sec. I, Par. XIII of the Georgia Constitution require that a search warrant “particularly describ[e]” the place to be searched. This requirement is fulfilled “if the warrant contains a description that sufficiently permits a prudent officer executing the warrant to locate the premises, person or property to be searched definitely and with reasonable certainty, and without depending upon his discretion.” 20 Here, the search warrant listed the full address of the place to be searched (1364 Blackmon Avenue, Macon, GA 31206), and it contained a heading indicating that the warrant was issued by the Bibb County Magistrate Court. According to Mules, the actual physical location was clearly marked with “easily identifiable” street numbers beside the door, and he agreed that he “had no problem finding 1364...
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