Banks v. State

• Decision Date: 02 February 2004
• Docket Number: No. S03A1414., No. S03A1282
• Citation: 277 Ga. 543,592 S.E.2d 668
• Parties: BANKS v. STATE of Georgia (two cases).
• Court: Georgia Supreme Court

592 S.E.2d 668

277 Ga. 543

BANKS v. STATE of Georgia (two cases).

Nos. S03A1282, S03A1414.

Supreme Court of Georgia.

February 2, 2004.

Maurice G. Kenner, Decatur, for appellant.

J. Tom Morgan, Dist. Atty., Barbara B. Conroy, Jacqueline S. Hardy, Christy M. Liss, Asst. Dist. Attys., for appellee in case no. S03A1282.

J. Tom Morgan, Dist. Atty., Barbara B. Conroy, Jacqueline S. Hardy, Asst. Dist. Attys., for appellee in case no. S03A1414.

CARLEY, Justice.

Responding to the report of a shooting, police officers arrived at the home of Willie Banks and discovered that he had received multiple gunshot wounds. According to him, two armed men entered his home, and he may have wounded one or both before they fled. After Banks was transported to the hospital, the officers spoke with his neighbors who reported seeing two suspects, and then hearing an argument followed by gunfire coming from Banks' house. The neighbors also said that Banks sold drugs out of his residence. One of them stated that, in an earlier conversation with Banks, he admitted selling large amounts of marijuana. An investigating officer sought a warrant to search the house for evidence of the shooting, including blood, hair and "marijuana, plastic bags, scales and any materials used to package or distribute said marijuana." The warrant issued, and the ensuing search resulted in the discovery of 41 grams of cocaine and $29,940 in cash. The State of Georgia initiated forfeiture proceedings against the contraband and money. Banks answered, and the trial court conducted a hearing at which it admitted hearsay over his objection. He subsequently filed a challenge to the constitutionality of OCGA § 16-13-49(s)(1), contending that, by authorizing consideration of hearsay at a forfeiture hearing, that statute violated the constitutional right of an accused to face his accusers. The trial court upheld the constitutionality of the law, and entered an order of forfeiture which relied in part upon the hearsay evidence admitted at the hearing. The trial court ruled that the warrant was supported by probable cause to search for "physical evidence or a motive for the [home invasion] and ... the identity of the perpetrators in [that] crime...." From that order, Banks brings this appeal.

1. Banks contends that OCGA § 16-13-49(s)(1) is unconstitutional. The statute provides that, in a forfeiture hearing, the trial court

may receive and consider, in making any determination of probable cause or reasonable cause, all evidence admissible in determining probable cause at a preliminary hearing or by a magistrate pursuant to Article 1 of Chapter 5 of Title 17, together with inferences therefrom....

It has long been recognized that hearsay is admissible in determining the existence of probable cause. Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), overruled on other grounds, United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Strauss v. Stynchcombe, 224 Ga. 859, 865(2), 165 S.E.2d 302 (1968). Admission of hearsay for that purpose does not violate the constitutional right of a defendant to confront the accusing witnesses, because guilt or innocence is not the issue for determination. "`There is ... a great "difference between what is required to prove guilt in a criminal case and what is required to show probable cause for arrest or search." [Cit.]'" Strauss v. Stynchcombe, supra at 865(2), 165 S.E.2d 302. "[A] finding of `probable cause' may rest upon evidence which is not legally competent in a criminal trial. [Cit.]" United States v. Ventresca, 380 U.S. 102, 107(I), 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

Under OCGA § 16-13-49(s)(1), hearsay is not admissible to prove the truth of its contents. It is admitted for the limited purpose of showing the information relied upon to establish the existence of probable cause to conduct the search. Rabern v. State of Ga., 221 Ga.App. 874, 875(2), 473 S.E.2d 547 (1996). Here, the officers who testified at the forfeiture hearing were not called to prove that Banks violated the criminal law by possessing the contraband and money. The purpose of their testimony was to explain the basis for seeking a warrant to search his house. They set forth the factors which supported the belief that the evidence related to the home invasion would be found in the residence, including the presence therein of drugs as the motive for the commission of the assault against Banks. The trial court correctly rejected the challenge to the constitutionality of OCGA § 16-13-49(s)(1), pursuant to which the testimony was admissible for this limited purpose.

2. Banks contends that the warrant did not issue on probable cause. As previously noted, OCGA § 16-13-49(s)(1) authorizes the trial court in a forfeiture hearing to consider all of the evidence that would be admissible before the magistrate. Such evidence includes the affidavit, as well as the sworn testimony of the officers. See Simmons v. State, 233 Ga. 429, 431, 211 S.E.2d 725 (1975). Under the "totality of the circumstances" test, the duty of a trial court conducting a forfeiture hearing is to make a practical, common-sense decision whether, given all the evidence presented to it, there is a fair probability that contraband or evidence of a crime would be found in a particular place. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). See also State v. Stephens, 252 Ga. 181, 182, 311 S.E.2d 823 (1984) (motion to suppress). The duty of the appellate court is to ensure that the trial court had a substantial basis for finding that probable cause existed. State v. Stephens, supra at 182, 311 S.E.2d 823.

The affidavit related that Banks had been shot and claimed to be the victim of a home invasion robbery. Thus, it is clear that the police had probable cause to believe that a completed or an attempted armed robbery, as well as aggravated assault, were committed in the residence. Consequently, they had probable cause to believe that evidence related to those offenses, such as blood and hair, would be found in the house.

With regard to a possible motive for the crimes, the officers indicated that they received reports that Banks sold drugs from his house. "Hearsay can be the basis for issuance of a warrant `so long as there (is) a substantial basis for crediting the hearsay.' [Cits.]" Ward v. State, 234 Ga. 882, 883, 218 S.E.2d 591 (1975). In determining the credibility of hearsay, the declarant's veracity and basis of knowledge are still major considerations. Clemons v. State, 257 Ga. App. 96, 99(1), 574 S.E.2d 535 (2002). Here, the informants were not named, and they were identified only as Banks' neighbors. The affiant admitted that he was not previously acquainted with the anonymous neighbors, and had no prior personal knowledge of whether they might be considered truthful individuals. See State v. Jackson, 166 Ga. App. 671, 673(2), 305 S.E.2d 417 (1983). Compare Miller v. State, 155 Ga.App. 399(I)(A), 270 S.E.2d 822 (1980). Thus, at best, each was shown to be an undisclosed citizen, whose veracity was never demonstrated. Stewart v. State, 217 Ga.App. 45, 47, 456 S.E.2d 693 (1995); State v. Brown, 186 Ga.App. 155, 157(2), 366 S.E.2d 816 (1988). Therefore, there was no basis for crediting their reports that Banks was a drug dealer. "If the informant[s] lacked any apparent motive to dissemble, it could equally be said that [they] lacked any apparent motive to tell the truth." State v. Teague, 192 Ga.App. 839, 840, 386 S.E.2d 718 (1989). "[A]ttesting officers and magistrates [should] make every effort to see that supporting affidavits reflect the maximum indication of reliability ... whenever and wherever that shall be feasible." State v. Stephens, supra at 184, 311 S.E.2d 823. That was not done here.

Moreover, with a single exception, the basis of knowledge of the unidentified declarants was never shown. As to them, their reports that Banks sold drugs from his house might be no more than an unsubstantiated rumor circulating throughout the neighborhood. Duty v. State, 254 Ga.App. 727, 728, 563 S.E.2d 558 (2002); State v. Brown, supra at 158(2), 366 S.E.2d 816. The affiant did assert that one of the unnamed neighbors revealed that, in a prior conversation, Banks admitted that he sold "large amounts of marijuana." Although this identified Banks himself as the source of the declarant's information, the approximate time that Banks made this admission was not set forth, nor was there any indication that, when he supposedly made it, he was recounting present, rather than past, events. "[T]he time of the occurrence of the facts relied upon is a prime element in the concept of probable cause. [Cit.]" Lewis v. State, 255 Ga. 101, 104(2), 335 S.E.2d 560 (1985). The inquiry is whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described still prevail. State v. Luck, 252 Ga. 347, 312 S.E.2d 791 (1984). Here, there was nothing in the affidavit to support a reasonable belief that Banks was dealing drugs from his house at the time the warrant was issued.

Thus, a fair assessment of the totality of the information supplied by the officers is that certain unnamed individuals, none of whom they had a demonstrable reason to believe, implicated Banks as a seller of drugs. Moreover, all but one of the anonymous accusers did not disclose...