Baker v. State

• Decision Date: 24 November 2008
• Docket Number: No. A08A1528.,A08A1528.
• Citation: 671 S.E.2d 206,295 Ga. App. 162
• Parties: BAKER v. The STATE.
• Court: Georgia Court of Appeals

671 S.E.2d 206

295 Ga. App. 162

BAKER v. The STATE.

No. A08A1528.

Court of Appeals of Georgia.

November 24, 2008.

Reconsideration Denied December 11, 2008.

Charles H. Frier, Smyrna, for appellant.

Paul L. Howard Jr., District Attorney, for appellee.

ADAMS, Judge.

Christopher Baker appeals following his conviction on multiple counts of rape, aggravated sodomy, kidnapping, theft by taking and possession of a firearm during the commission of a felony.

Viewed in the light most favorable to support the verdict, the evidence showed that in May 1998, after A.T. got into Baker's car, he drove her to an abandoned building and forced her to have sex. He then drove off with A.T.'s purse still in his car, abandoning her. The next month he drove R.B. to a deserted area and forced her to have vaginal and oral sex. On or about May 26, 1999, Baker drove P.J. to an area near Bankhead Highway where he forced her to have vaginal and anal sex with him, and then kicked her out of the car, taking her purse with him. Then in December 2000, he drove N.H. behind a school and forced her to have sex at knifepoint. In April 2002, Baker forced C.M. into his car at gunpoint. He drove her to a truck stop where he had vaginal and anal sex with her, then forced her to commit oral sex. Baker hit C.M. in the face, took her ring and other items out of her purse, before pushing her out of the car. K.M. was walking home on October 29, 2002, when Baker blocked her path, showed her a gun and forced her into his car. He drove her to a muddy field where he forced her to commit oral sex and then vaginal and anal sex. Baker then took her necklace, money and cell phone.

Baker testified that he had consensual sex with all the women. He described these encounters as his engaging the services of a prostitute, paying for the services, then taking the money back and kicking the woman out of his car. He also denied taking K.M.'s belongings.

1. Baker first asserts that the trial court erred in denying his motion to suppress. In reviewing a trial court's denial of a motion to suppress, this Court defers to the trial court's findings of disputed facts but reviews de novo the court's application of the law to the undisputed facts. Petty v. State, 283 Ga. 268, 269(2), 658 S.E.2d 599 (2008); State v. Nash, 279 Ga. 646, 648(2), 619 S.E.2d 684 (2005).

At the hearing on the motion to suppress, Officer J.J. O'Brien of the Atlanta Police Department testified that he was the sex crimes investigator on call on October 29, 2002, when he was summoned to the Atlanta Medical Center to meet K.M. She told him that she had been raped and gave a description of her attacker and his car. K.M. said that her cell phone and some jewelry had been taken from her during the incident. O'Brien asked K.M. to contact her cell phone company to see if any phone calls had been made. Pursuant to a subpoena, police learned that a call had been made to an address in Riverdale listed under Baker's name. O'Brien ran a criminal history on Baker, and determined that he fit the description of the perpetrator given by K.M. Later, O'Brien rode by the address on the phone records and saw a vehicle matching K.M.'s description. Subsequently, police prepared a photographic lineup for K.M.'s review, and she identified Baker as the man who raped her. The State concedes that this lineup was illegal.

Baker was subsequently arrested. O'Brien prepared the arrest warrant, and testified that it contained K.M.'s description of the attack and listed Baker as the perpetrator.¹ Although he waited until after K.M.'s photo identification to seek the warrant, the warrant did not specifically reference the lineup. O'Brien stated that he believed that he had probable cause, without the lineup, based upon the cell phone information, K.M.'s description and his observation of a car matching her description at Baker's residence.

Several days after the arrest, police obtained a search warrant for Baker's residence. That warrant referenced K.M.'s identification of Baker from the photographic lineup, in addition to her description of events, O'Brien's observation of the car at Baker's residence, and the fact that Baker had been arrested for the crime. During the search of the residence, police found a phone matching K.M.'s description of the items taken from her during the attack. The phone had a distinctive dollar bill marking on it and was pre-programmed with the numbers K.M. told police would be on her phone. In addition, police found a gold necklace, which K.M. identified as hers. Subsequently, police obtained a warrant to obtain a sample of Baker's blood. O'Brien did not participate in the preparation of the warrant for Baker's blood sample, and the State did not produce a copy of that warrant or testimony from the officer providing the affidavit at the hearing. DNA obtained from Baker's blood sample matched that of K.M's attacker.

Baker asserted as the basis for his motion to suppress:

That on or about January 14, 1999, the defendant was placed under arrest pursuant to an arrest warrant. This arrest warrant was based on a photographic line-up in which the defendant was picked out by the alleged victim. Defendant contends and the State concedes that such photographic line-up was [done] in violation of ... defendant's rights. That without the identification of the defendant in the photographic line-up, there would have been no probable cause to arrest defendant. Accordingly, the subsequent search warrant for defendant's blood was based on the illegal arrest which was based on the illegal photo line-up. Therefore, any evidence gathered as a result of such search warrant should be suppressed as fruits of the poisonous tree. It therefore follows that any results based on the illegal seizure of defendant's blood should also be suppressed.

In addition, Baker argued at the hearing that the search warrant issued for his home was illegal as it, too, was based upon the tainted identification, and thus the evidence seized pursuant to that warrant must also be suppressed.

We must determine, therefore, whether police had probable cause to arrest Baker and to obtain search warrants for his home and a blood sample without the photographic lineup or whether the existence of that lineup so tainted the proceedings as to render the evidence gathered inadmissible. Baker did not challenge the warrants on any other ground.

(a) Arrest—"The facts necessary to establish probable cause for arrest are much less than those required to prove guilt beyond a reasonable doubt at trial; the test merely requires a probability—less than a certainty but more than a mere suspicion or possibility." (Citation, punctuation and footnote omitted.) Murphy v. State, 286 Ga.App. 447, 448, 649 S.E.2d 565 (2007). "Probable cause exists if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense." (Footnote omitted.) State v. Tyson, 273 Ga. 690, 693(3), 544 S.E.2d 444 (2001).

Police knew that K.M.'s phone had been taken by her attacker; the phone had been used to call Baker's house after the attack; Baker fit the description she had given of her attacker; and a car matching her description was at his house. We find that these facts, without reference to K.M.'s identification, established sufficient probable cause to support his arrest. See Singleton v. State, 195 Ga.App. 119, 121(1), 393 S.E.2d 6 (1990). We note, moreover, that the affidavit seeking an arrest warrant did not reference K.M.'s identification. Thus, there was nothing illegal about the affidavit on its face.

(b) Search of Residence—Next we must determine whether the magistrate was presented with facts, "sufficient to show probable cause that a crime is being committed or has been committed" to support the search of Baker's home. OCGA § 17-5-21(a).

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. Our duty in reviewing the magistrate's decision in this case is to determine if the magistrate had a "substantial basis" for concluding that probable cause existed to issue the search warrants.

(Citations and punctuation omitted.) Sullivan v. State, 284 Ga. 358, 360-361(2), 667 S.E.2d 32 (2008). "On review, this Court is limited to determining if the magistrate had a substantial basis for concluding that probable cause existed to issue the search warrant, and must afford substantial deference to the magistrate's decision." (Punctuation omitted.) Fair v. State, 284 Ga. 165, 171(3)(b), 664 S.E.2d 227 (2008).

Unlike the affidavit supporting the arrest warrant, however, the affidavit supporting the search warrant did mention K.M.'s identification of Baker from the illegal photographic lineup. Therefore, we must omit evidence of that lineup in considering whether the information in the affidavit established sufficient probable cause to support a search of Baker's home:

When an affidavit in support of a search warrant contains information which is in part unlawfully obtained, the validity of a warrant and search depends on whether the untainted information, considered by itself, establishes probable cause for the warrant to issue. If the lawfully obtained information amounts to probable cause and would have justified issuance of the warrant, apart from the tainted information, the evidence seized pursuant to the warrant is admissible.

(Citation omitted.) State v. Pando, 284 Ga. App. 70, 76(2)(a), 643 S.E.2d 342 (2007)....